VEERASWAMI MANDIRI Vs. K MANICKA MUDALIAR

JUDGEMENT

(1.) THIS Second Appeal has been filed by the 2nd defendant in a suit for redemption of a possessory mortgage of the suit property made by the plaintiff along with his brother Venkataswami Mudaliar in favour of the 3rd defendant in the suit, and for partition and separate possession of a half share in the suit property. The Trial court dismissed the suit holding that the contesting defendants in the suit have perfected their title by adverse possession against the plaintiff; but on appeal, the learned Subordinate Judge has overruled the defence of limitation and decreed the plaintiff's claim for a half share in the suit property.

(2.) A brief survey of the salient facts and findings in the case is necessary for appreciating the respective contentions of the parties on the question of limitation, the only question for consideration. The suit property, dry land of an extent of 3 acres 20 cents, in North Virinchipuram Village, North Arcot district, belonged to the plaintiff and his elder brother Venkataswami Mudaliar aforesaid. Under Ex-B-3 dated 9-2-1934 the two brothers usufructuarily mortgaged the property in favour of Subramania Mudaliar, 3rd defendant in the suit for a sum of Rs. 400/ -. Venkataswami Mudaliar was indebted to one Muthuvelu Pillai under a promissory note, and Muthuvelu Pillai filed a small cause suit, S. C. No. 533 of 1935, on the file of the District Munsif's Court, Vellore. In execution of the decree thereon which had been transferred to the Original Side, Muthuvelu Pillai attached the entirety of the suit property and purchased the same in court-auction, Ex. B-l dated 25-91936 is the sale certificate. It is seen from the sale certificate that the property had been sold subject to two agricultural loans of Rs. 150/- each and the suit usufructuary mortgagee Muthuvelu Pillai having taken formal delivery of the suit property through Court on 6-11-1936 discharged the usufructuary mortgage debt due to the 3rd defendant and redeemed the mortgage on 9-11-1936. Pursuant to the redemption which was on 9-11-1936 he entered on possession of the property. The deed of mortgage contains the relevant endorsement of discharge under dated 9-11-1936. There is also documentary evidence of actual possession and enjoyment of the suit property by Muthuvelu Pillai, till he sold the property to the 1st defendant in the suit and her sister one Rajammali under Ex. B-11 dated 24-11939. The 2nd defendant purchased the half share of Rajammal in the property under Ex. B-12 dated 19-11-1959 and B-13 dated 21-2-1960 for a total consideration of Rs. 6,000/- and the Courts below, find that after Muthuvelu Pillai, the 1st defendant and Rajammal and after her, the 2nd defendant, had possession and enjoyment of the suit property in their own "right as absolute owners. In fact, under Ex. B-9 dated 13-4-1942 the 1st defendant usufructuarily mortgaged the property in favour of one Abdul Azeez Sahib, The Trial Court has noticed that the evidence of D. Ws. 1 and 2, that is, Muthuvelu Pillai and the 2nd defendant, to the effect that Muthuvelu Pillai and his suc-cessors-in-title have been in possession and enjoyment of the suit property in their own right as absolute owners from 911-1936, the date of endorsement of discharge Ex. B-4, has not at all been challenged in cross-examination in any manner whatsoever by the plaintiff. ' It is observed by the Courts below, that the plaintiff has unequivocally admitted in evidence that he knew fully about Muthuvelu Pillai's possession of the suit property from the date of his purchase in court-auction and the possession and enjoyment of the property by the transferees from Muthuvetu Pillai, namely, the 1st defendant and her sister since 1939.

(3.) ANOTHER fact may be mentioned here, while Muthuvelu Pillai was in possession of the suit property, there was an attempt at trespass on the suit property by the plaintiff, his brother Venkataswami and his aunt Salammal and this led to a criminal complaint by Muthuvelu Pillai. The plaintiff admits that on this complaint of Muthuvelu Pillai for trespass, each of them was fined Rs. 5/-, Also while it is seen that this Muthuvelu Pillai and subsequently his transferees have been in possession and enjoyment of the entire property asserting absolute title in themselves, it is found by the Courts below that under the Court auction sale in execution of the decree against Venkataswami Mudaliar, the interests of the plaintiff did not pass to the court-auction purchaser. The suit was on a promissory note executed by Venkataswami Mudaliar and the plaint clearly established that the promissory note debt was incurred by Venkataswami Mudaliar in his individual capacity. Muthuvelu Pillai had prayed only for a personal decree against venkataswami Mudaliar and in the circumstances only the right, title and interest of Venkataswami Mudaliar in the suit property could pass to the court-auction purchaser Muthuvelu Pillai. The finding of the Courts below in this regard is that notwithstanding the fact that the decree-holder had proceeded to bring the entirety of the property to sale and purported to purchase the entirety of the property, the court-auction sale was not binding on the plaintiff and it could not pass the interests of the plaintiff to Muthuvelu Pillai. Of course, Muthuvelu Pillai had taken possession of the entirety of the property pursuant to the court sale and had on redemption entered into possession of the entirety of the suit property.