NATESA PATHAR DIED Vs. PAKKIRISAMY PATHAR

JUDGEMENT

(1.) The above Second Appeal has been filed by the first defendant in O.S. No. 56 of 1978 on the file of the District Munsif of Ariyalur, who died during the pendency of the above Second Appeal and whose Legal Representatives are pursuing the above proceedings in this Court against the Judgment and decree of the learned Subordinate Judge, Ariyalur, dated 10-9-1992 in A.S. No. 130 of 1981 reversing the judgment and decree of the learned Principal District Munsif, Ariyalur dated 28-I-1981 in O.S. No. 56 of 1978.

(2.) The Suit O.S. 10. 56 of 1978 was filed by the first respondent herein for redemption of the suit property from the mortgage by conditional sale deed dated 20-3-1959, for directing the first defendant to surrender possession of the suit property to the plaintiff, for ascertaining the mesne profits from the date of plaint till delivery of possession from the first defendant to the plaintiff and for costs in the following circumstances:- The plaintiff claims that the suit property along with other properties originally belonged to one Valambal, who sold the same to one Ramasamy Pathar, husband of the second defendant under a sale deed dated 4-1-1932, that again Valambal and her sons have sold the residuary portion of the house and house site portions to one Govindasamy Pather, Sundaresa Pathar and Natesa Pathar (1st Defendant), that at the time of sale in the year 1932, the suit property remained only as a pial portion and in the year 1947, Ramasamy Pathar converted the pial portion into a shop which was assessed to house tax by Jayangondam Town Panchayat and was given separate door number as 32 and that the said Ramasamy Pathar was in continuous possession and enjoyment of the shop, that he mortgaged the same to the first defendant on 20-3-1958 for Rs. 200/- by conditional sale, that the first defendant was in possession and enjoyment of the property only as a mortgagee and the plaintiff has since purchased other house portions of Ramasamy Pathar on 18-8-1977 and defendants 2 and 3 have surrendered possession of the property except the suit property on 17-8-1977 and when the plaintiff paid Rs. 250/- to defendants 2 and 3 out of the sale consideration to redeem the mortgage by conditional sale dated 20-31958, the first defendant refused to receive the said amount and permit the mortgage to be redeemed. It is in such circumstances the suit came to be laid after exchange of notices between the parties making claims and counter claims. The substantial plea taken oh behalf of the first defendant was that it was an outright sale with a condition for re-purchase within the stipulated time and inasmuch as the time stipulated for re-purchase was long over, there was no question of the plaintiff being entitled to any relief much less the relief of redemption as though it is a mortgage. It was also contended that the suit for redemption was not maintainable and if at all a suit should have been in the form of a declaration of title. Defendants 2 and 3 supported the claim of the plaintiff contending that defendants 2 and 3 and Ramasamy Pathar have been in enjoyment of the pial portion that Ramasamy Pathar borrowed Rs. 250/-on 30-3-1958 from the first defendant and executed a mortgage by conditional sale deed in respect of the suit property, that the possession and enjoyment of the suit property by the first defendant was only as that of a mortgagee towards interest, that the suit property was worth Rs. 2000/- even in the year 1958 and since defendants 2 and 3 refused to sell the property in favour of the first defendant, the first defendant started denying the right to redeem the mortgage by conditional sale, that the plaintiff is really in possession and enjoyment of other portions only of the properties except the suit item and that the suit may be dismissed as prayed for.

(3.) On the above pleadings and claims and counter claims of the respective parties, the suit was tried and oral and documentary evidence was marked in support of the respective claims and stand taken by the contesting parties. A Commissioner was also appointed and the report and plan of the Commissioner were marked in the proceedings. After considering the materials placed on record, the learned trial Judge by, his judgment and decree dated 28-1-1981 dismissed the suit on the view that the document Ex. A. 5 dated 20-3-1958 was only a sale deed with a conditions for re-purchase of the suit property within the stipulated time and that, therefore, the plaintiff was not entitled to redeem the suit property. The plea of adverse possession raised by the first defendant was rejected on the ground that being a person holding title, right and interest of the property, cannot claim right of adverse possession. Aggrieved, the plaintiff pursued the matter before the lower Appellate Court. The learned first Appellate Judge, on a consideration of the materials placed on record and on analysing the position of law on the subject, has chosen to accept the stand of the plaintiff that the document Ex. A-5 was only a mortgage by conditional sale and not a sale with a condition for re-purchase and on that view, decreed that suit, granting relief of redemption as prayed for. Aggrieved, the first defendant filed the above Second Appeal.