PUSHPAM Vs. K M MEERAN

JUDGEMENT

(1.) THE unsuccessful plaintiffs, as respondents before the first appellate Court in A.S. No. 194/1986, are the appellants.

(2.) THIRU A.A. Paramasivam as plaintiff had filed a suit, for declaration of his title to the suit property, for possession and for mesne profits or in the alternative for partition of his 35/56th share, on the grounds that the suit property originally belonged to one Kader Mohideen Rowther, who died leaving his wife by name, Rosammal and two sons by name Diwan Mohideen and K. Ponnu, that Diwan Mohideen died leaving his wife Zeenath Beevi and each one was entitled to 1/3 share in the suit property, that the plaintiff has filed O.S. No. 227/65 for recovery of money and obtained a decree on 4.8.1965, that in order to realise the decree amount, filing E.P. No. 796/66, attached the property on 24.11.1966, that he bought the property in the court auction sale held on 28.8.1974, after obtaining the leave of the Court, that in pursuance of the sale certificate, he took delivery of possession in E.A. No. 664/75, after the removal of obstruction created by defendants 1 to 5, that the second defendant on behalf of the first defendant agreed to be the tenant of the premises, that thereafter, he committed wilful default and therefore, eviction petition was filed, which was dismissed with an observation that there is a dispute regarding title and the same has to be decided by a civil Court and that he was constrained to file a suit, for the above said reliefs.

(3.) THE learned counsel for the appellants submitted that the first appellate Court failed to note the effect of the attachment, as contemplated under Section 64 of the Code of Civil Procedure, thereby landed in rendering a perverse finding, which requires setting aside. It is the further contention of the learned counsel for the appellants, that the first appellate Court has not properly appreciated the recitals in the sale deeds, relied on by the contesting defendants, wherein there are intrinsic evidence for the non existence of the mortgage. THErefore, according to the learned counsel for the appellants, the first appellate Court erred in concluding that the contesting defendants were in possession of the property in pursuance of the mortgage, which could not be accepted.