JOHN BOSCO Vs. VARGHESE

JUDGEMENT

(1.) THE defendant is the appellant. The second appeal is preferred against the decree and judgment dated 05. 02. 2007 in A. S. No. 82 of 2002, on the file of the learned Sub-Judge, Kuzhithurai, partially modifying the judgment and decree dated 06. 08. 2002, in O. S. No. 490 of 1999, on the file of the learned I Additional district Munsif, Kuzhithurai. The suit in O. S. No. 490 of 1999 is filed for permanent injunction by the respondent herein.

(2.) THE brief facts of the case are as follows: the plaintiff purchased the suit property by a Court auction on 09. 11. 1984 in pursuant to the decree passed in A. S. No. 113 of 1971 by the Subordinate Court, nagercoil. The plaintiff took delivery of the suit property in E. P. No. 59 of 1982, dated 17. 02. 1991 and he is in possession and enjoyment of the property. One Glatten Raj, through his power of attorney, filed a suit in O. S. No. 602 of 1997 for the same property and the plaintiff, as one of the defendant, filed a counter claim and obtained a decree. The plaintiff is also filed O. S. No. 384 of 1999. One Richard and others tried to interfere with the possession. The defendant seems to have filed a complaint before the Revenue Divisional Officer, padmanabhapuram, under Section 145 Cr. P. C. , and obtained an order. The plaintiff is in possession and enjoyment of the suit property and the defendant is trying to interfere with the possession and therefore, the suit is filed for permanent injunction.

(3.) THE suit was resisted by the defendant by filing an elaborate written statement and a sum and substance of the written statement is that the suit property originally belonged to one A. P. Sam Michael, who had executed an usufructuary mortgage in favour of one Siluvai Arukanchi Fernando on 05. 10. 1955 and the mortgagee died on 06. 09. 1965 and his legal heirs were in possession and enjoyment of the property. One Arukolas Morais, claimed to be a 'simple mortgagee' of the property filed a suit in O. S. No. 252 of 1967, on the file of the learned District Munsif, Kuzhithurai, against the original mortgager, who died as early as 06. 09. 1965. The suit was dismissed, however, in the appeal, the mortgagee obtained a money decree and on execution, the plaintiff seems to have purchased the property in a Court auction. However, he never took possession in pursuant to the sale certificate and he only obtained a symbolical delivery. In fact, the said mortgage was time barred. The legal representatives of the original mortgagee viz. , Siluvai Arunkanchi, entered into an agreement on 30. 07. 1997 and delivered the possession of the property. There are several criminal proceedings between the original mortgagee between the plaintiff and the defendant. In all these forums, which was held that the possession under a court auction to the plaintiff was only symbolical delivery and he is not in possession. Therefore, the suit is not maintainable.