VIJAYALAKSHMI Vs. VASANTHA

JUDGEMENT

(1.) THIS appeal is taken up for final disposal with the consent of parties.

(2.) IN a suit for partition, namely, O.S.No.92 of 1980 on the file of the Subordinate Judge Court, Tuticorin,a decree was passed in favour of respondents 1 and 2 herein. Clause the decree directed the plaintiffs in that suit to deliver possession of items 7 and 9 to the plaint II schedule properties to defendants 2 and 3 therein respondents 1 and 2 are defendants 2 and 3 in that suit. Item 7 in that suit is the property to which the present proceedings relate. When the decree holders attempted to take delivery of possession of property, the appellants herein obstructed. A petition to remove their obstruction was by the decree holders in E.A.No.30 of 1988 and the petition was ordered by the executing court. The appellants filed C.M.A.No.1070 of 1990 in this Court. By order dated 4.2.1991, set aside the order passed by the executing court to a limited extent and remanded matter for fresh disposal for the purpose of considering the claim put forward by appellants 2 and 4 in that appeal, who are appellants 2 and 4 herein. INspite of the remand being a limited one, the present appeal has been filed once again by all the appellants are obstructors. IN view of the earlier order in C.M.A.No.1070 of 1990, appellants 1 have no case. I have to consider only the claim put forward by the appellants 2 and 4.

(3.) THE decree-holders contended that the lease in favour of Duraisami Nadar was that building and not vacant site and that lease came to an end when Duraisami Nadar assignment of the othi in favour of Pon Singh, executed by the first defendant in the is the case of the decree-holders that on the assignment being taken by Duraisami his leasehold rights, if any, ceased to exist and thereafter, he could have a right only othidar or usufructuary mortgagee. It is, therefore, contended by the decree-holders the only claim if at all that can be put forward by the claimants is that of an usufructuary mortgagee and there is already a suit filed by the decree-holders for redemption of mortgage in O.S.No.246 of 1991 on the file of the District Munsif's Court, Tuticorin.