MANGATHIL Vs. PALANIAMMAL

JUDGEMENT

(1.) The plaintiffs in O.S.No.617 of 2013, who sought for a decree for recovery of possession upon dismissal of the suit by the lower Appellate Court has come up with this second appeal.

(2.) According to the plaintiffs, the suit property having an extent of 86 Ca belong to Harikrishnan and Iyyanarappan, sons of Narayanasamy. The said Harikrishnan died in the year 1983 leaving behind the plaintiffs 1 to 5 as his legal heirs to inherit the property. According to the plaintiffs, with the approval of the other co-owner Iyyanarappan, the first plaintiff had taken a loan of Rs.2,000/- in the year 1985 for meeting her son's marriage expenses. In lieu of the interest payable, the first plaintiff had handed over possession of the schedule mentioned property to the first defendant and thereby created an oral usufructuary mortgage in favour of the first defendant. It is also claimed that the other co-owner Iyyanarappan died on 25.12.2008 leaving behind the plaintiffs 6 to 9 as his legal heirs to succeed and inherit his one half share in the property. Despite demand made by the plaintiffs' to handover possession, upon receipt of a sum of Rs.2,000/-, the first defendant did not come forward to handover the possession hence, the plaintiffs had come up with the above suit for recovery of possession.

(3.) The suit was resisted by the defendants. The defendants would contend that there was no mortgage created in favour of the 1 st defendant. It was also claimed that the plaintiffs are not the heirs of Iyyanarappan. The defendant would claim that the suit property has been in her possession since September 1987 and they have also put up construction in the suit property. The property has also been assessed to house tax and the municipality as defendants have been paying taxes. The defendants have been in open, continuous and uninterrupted possession of the property and they have prescribed the title by adverse possession. The Trial Court, upon a consideration of the evidence disbelieved the claim that there was an oral mortgage. The Trial Court, relying upon the judgment in Dharini Ammal Vs. Arayee reported in 2015(1) CTC 577 concluded that there was no usufructuary mortgage. It also concluded that the usufructuary mortgage for a value of above Rs.100/- must be by way of registered instrument and there cannot be an oral usufructuary mortgage. On the above conclusion, the learned Trial Judge dismissed the suit holding that the plaintiffs suit for recovery of posession is barred by limitation. Aggrieved, the plaintiffs preferred an appeal in A.S.No. 89 of 2018. The lower Appellate Court also concurred with the findings of the Trial Court and dismissed the appeal. Aggrieved, the plaintiffs have come up with this second appeal.