VARKEY JOSEPH Vs. CHANDAPILLAI VARKEY

JUDGEMENT

(1.) THIS appeal is in a suit for declaration of title and recovery of possession.The facts are thus:The suit property belonged admittedly to one Kollavana Mathew Varghese.He mortgaged it to Bersleeba Kathanar on 26th Mithunam 1089 as per Ext.D -4;and mortgaged it again to his nephew,Varkey Chandapillai,in the year 1103 "both without transfer of possession.Kathanar,the first mortgagee,instituted O.S.No.1059 of 1097 on the file of the Munsiff,Thiruvella to enforce his mortgage,and it was decreed.St.Mary's Church,Niranom,having obtained a money decree against the Kathanar attached that decree,got itself impleaded in the decreeholder's place,executed the decree and purchased the property in court -sale on 24th Makaram 1117 and took possession through Court as per the delivery report,Ext.P -1,dated 12th Makaram 1118.Chandapillai,the second mortgagee,instituted O.S.No.13 of 1118 on the file of the District Judge,Mavelikara,with­out impleading the aforesaid Church to enforce his mortgage,purchased the property in execution sale on 10th September 1952(the sale certificate is Ext.D -3)and took possession through Court on 1st April 1953,as per the delivery report Ext.D -5.Defendants 1 to 3 are the children of the said Chandapillai and the 4th defendant is their lessee. The plaintiff,having obtained an assignment of the rights of the Church as per Ext.P -1,dated 12th February 1954, has instituted this suit on August 13,1956,with the prayers aforementioned.The defendants contended that the Church never had been in actual possession of the property but Kollavana Mathew Varghese continued in possession in spite of the delivery proceedings against him in O.S.No.1056 of 1097 that they took actual possession as per the court -sale and delivery in O.S.No.13 of 1118,and that the plaintiff had no subsisting title to the property.The Munsiff accepted the plaintiff's case and decreed the suit;but it has been reversed by the Subordinate Judge who held the plaintiff to have had no subsisting title.Hence this second appeal by the plaintiff.

(2.) THIS is a case of competition between the prior and subsequent mortgagees.Admittedly both the mortgages were simple mortgages unaccompanied by possession.At the time of institution of the suit,O.S.No.1056 of 1097,the second mortgage had not come to existence.It was during the pendency of that suit that the second mortgage came to be.Under section 52 of the Transfer of Property Act,the pendency of a suit commences from the date of its institution and lasts up to the final satisfaction of the decree and any dealing with the suit property by any party to the suit during such pendency will not affect the rights of the other party under the decree.As the second mortgage of 1103 was executed during pendency of the litigation on the first mortgage,no right under the second mortgage can be urged by the defendants against the proceedings had on the first mortgage.The court -sale and delivery had in O.S.No.1056 of 1097 are therefore binding on Chandapillai,the second mortgagee,and his heirs,defendants 1 to 4.It is pertinent to note that in the suit on the second mortgage,O.S.No.13 of 1118,the equity of redemption was not represented as the court -auction -purchaser in the first mortgagee's suit in whom it vested in Makaram 1117,long before that suit,was not made a party.No title to the equity of redemption can then be claimed to have been acquired under the court -sale in that latter suit of 1118.It then follow that the title to the property is vested only in plaintiff and that the defendants had no claim of title thereto to be urged against the plaintiff.Counsel for defendants -respondents contends that the defendants had got actual possession of the property as per the delivery in their favour on 1st April 1953.Be it so,I am afraid it cannot avail against the plaintiff in this suit instituted on August 13,1956.Their allegation that in spite of the delivery proceedings in O.S.No.1056 of 1097 the mort­gagor,Kollavana Mathew Varghese,had been in possession of the property bears no proof in this case.Counsel contended that Ext.P -1 is clear that at the time the Church took delivery,the property had been under cultivation by tenants of the judgment debtor,that the delivery had then was subject to those tenancies and that there is no evidence in this case that those tenants were ever ousted from the property,arguing thereby that there is no proof that the plaintiff or his predecessor -in -interest,the Church,had ever been in physical possession of the property between 1118(1943)and the date of this suit in 1956,for over 12 years of this suit,and that therefore the plaintiff must be held to have had no subsisting title on the date of this suit.Ext.P -1,the delivery report, so far as it concerns the property in this suit reads thus: ...[VERNACULAR TEXT COMITTED]... It is clear that the possession delivered to the Church was physical possession of the property subject only to the right of the cultivator who had raised tapioca crop thereon to collect the emblement when they became ripe for harvest.Subject to that licence all possession had been transferred to the decree -holder.The cultivator too had by attestation in the delivery report acknowledged his surrender of what­ever right he had in the property subject to a licence to collect the emblement then on the land.There is nothing to show that the cultivator continued ever after the harvest of that emblement.In the absence of positive evidence,the presumption can only be that the delivery of possession by Court to the Church under Ext.P -1 was true and effec­tive.In the absence of proof of the contrary the Church has to be presumed to have continued in such possession.The only fact in proof of disturbance of the Church's posses­sion is the delivery proceedings had in favour of the defen­dants on 1st April 1953.This suit for recovery from the defendants has been instituted on 13th August 1956.

(3.) IT is contended by counsel that,under Article 142 of the Limitation Act,1908,the plaintiff who seeks to recover the property from the admitted possession of the defendants is bound to show a subsisting title in himself which can be done only by proving that he had been in possession of the property at some time within 12 years of the suit and that if that be not proved by him,whatever be the defects of the defendants case,the plaintiff has to be non -suited.The said Article 142(the corresponding Article of the Limitation -Act,1963,is Article 64 which refers to dispossession only)read thus: "For possession of immovable property when the plaintiff,while in possession of the property has been dispossessed or has discontinued the possession Twelve years The date of the discontinuance." According to the plaint the plaintiff was dispossessed by defendants 1 to 4 in March 1954.The defendants 1 to 4 claim possession only from and after 1st April 1953.( The 5th defendant does not claim any interest in this suit.) Though the defendants 1 to 4 stated that before them Kollavana Mathew Varghese was in possession,no evidence has been adduced to substantiate that.Nor has the plaintiff been able to prove that the trespass by defendants 1 to 4 was in March 1954.It is in the background of these facts and circumstances that the onus of proof has to be considered here.