PUSHPAMARY Vs. GRACE NESAMMAL

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal is directed against the judgment and decree, dated 18.12.1997, passed in A.S.No.132 of 1988, on the file of Principal District Judge, Nagapattinam.

(2.) Applicants in Execution Application are the appellants before this Court. Originally, the petition property was purchased in the name of Grace Nesammal, first respondent herein, on 18.01959. Her husband Mac Donald, second appellant herein, was in continuous possession and he brought up their children in the same house. On 10.01983, the said Grace Nesammal entered into a sale agreement with one Sheik Abdul Khadar, second respondent herein. On the basis of the said agreement, a suit for specific performance was filed in O.S.No.110 of 1984 and the same was decreed ex parte. The second respondent-decree holder has filed the Execution Application and the sale deed was executed in his favour. Thereafter, he proceeded to take delivery of possession and delivery of possession was ordered ex parte. The appellants were directed to hand over deliver of possession to the second respondent. Aggrieved over the said order of delivery of possession, the appellants herein filed an Execution Application vide E.A.No.1 of 1987, for recovery and re-delivery of the property. The execution Court has conducted an elaborate inquiry under Order 21 Rule 99 of C.P.C., and allowed the application, directing re-delivery of possession of the property in favour of the appellants, against which, the second respondent-purchaser preferred an appeal in A.S.No.132 of 1988. The lower appellate Court, having found that Grace Nesammal-first respondent is the true owner, has ordered delivery of possession in favour of the second respondent. Aggrieved over the said order passed by the lower appellate Court, the appellants have preferred this Civil Miscellaneous Second Appeal.

(3.) Learned counsel appearing for the appellants would submit that the property was purchased in the year 1959 by the second appellant, namely, Mac Donald, in the name of his wife, Grace Nesammal, out of his own funds. For the purpose of purchase of the property, he sold his properties in his native place and purchased the present property in the name of his wife. He also secured a job for his wife and continued to be in possession till the filing of the suit. It is also her contention that in the year 1960, the said Grace Nesammal left the second appellant and lived with another person. The second appellant brought up their children in the same house, as it was purchased by him in the name of his wife and he is the actual owner of the property. After settling his children in life, the second appellant executed the settlement deed in favour of the first appellant, namely, Pushpamary, whom he married in the year 1962. Therefore, the second respondent has no right, title or interest in the property, but the second appellant should be construed as the real owner, and delivery should not have been ordered. According to the learned counsel, even assuming that the second appellant is not the owner in spite of his long and continuous possession, it should be deemed that Grace Nesammal has lost her title and, by length of time, the title is vested with the second appellant. Also, even if the second appellant is not the title holder, both the appellants are entitled to title through adverse possession.