VISWANATHAN Vs. RAJENDRAN; MURUGAN; THIRUMALAI AMMAL; VASANTHA

JUDGEMENT

(1.) Aggrieved by the unanimous decision taken by the Courts below dismissing the suit, the above Second Appeal has been filed by the plaintiff. The suit was filed for declaration of title and for recovery of possession.

(2.) According to the plaintiff, his father one Marga Sahaya Gounder and Appavu Gounder were joint pattadhars of the lands in Vallam Village, Gingee Taluk, of which, the plaintiff's father Marga Sahaya Gounder was the absolute owner of 94 cents in S.No.49/15. He had usufructurily mortgaged 71 cents, out of 94 cents in S.No.49/15 to one Ramasasamy Gounder, who is the father of the defendant under the registered mortgage deed dated 25.05.1950. Pursuant to the same, the said Ramasamy Gounder was in possession of the suit property in his capacity as usufructuary mortgagee and thereafter, his son, i.e., the defendant continued to be in possession in his capacity as mortgagee. While so, there was a partition between the plaintiff and his brother Subramania Gounder on 05.07.1964, in which, the suit property was allotted to the share of the plaintiff. Thus, the plaintiff became the absolute owner of the suit schedule property and claimed to have discharged the mortgage debt on 27.04.1975 by paying the amount to the defendant. The defendant also alleged to have made endorsement of discharge of the mortgage on the deed itself. However, as there was standing crops on the suit property on the date of the discharge of the mortgage, the defendant pleaded for delivery of possession of the property after the harvest. But the defendant did not do so and denied the title of the plaintiff. As the title was denied, the above suit came to be filed by the plaintiff.

(3.) The suit was resisted by the defendant, denying all the allegations set out in the plaint. It was contended by the defendant that 47 cents in the suit property was sold by Appavu Gounder and his son Kannu Gounder to one Krishna Sarma. The said Krishna Sarma obtained possession through Court and thereafter, sold the same to the plaintiff's father Ramasamy Gounder on 13.05.1946. The said 47 cents of land which belonged to Marga Sahaya Gounder, who is the father of the plaintiff, was sold by him to one Kuppusamy Gounder who, in turn, sold it to Kannayiram Gounder. The said Kannayiram Gounder had been in possession of the property for several years and settled in favour of his daughter Vasantha. Accordingly, in Survey No.49/15, out of the 94 cents, 47 cents were enjoyed by the defendants' family and the Eastern 47 cents are enjoyed by the family of Kanniyira Gounder. Hence, the plaintiff cannot have any claim over the suit proeprty.