THANGAMMAL Vs. MURUGAMMAL

JUDGEMENT

(1.) THIS second appeal raises an interesting question in the application of Section 28 of the Presidency Small Cause Courts Act, 1882. Defendants 3 to 5 are appellants in the Second Appeal. The suit property is the superstructure of premises in jagannathapuram, Second Street, Chetput, Madras. Defendants 2 and 3 in the suit instituted S. C. No. 1560 of 1940 on the file of the Court of Small Causes, Madras, for the ground rent due by one Ponnuswami, the then owner of the superstructure, and, in pursuance of the decree passed by the Court of Small Causes on 28-41940, they attached the superstructure and put it up for sale under Section 28 of the Act. The superstructure was purchased by one Jayaram Naidu and a sale certificate Ex. B-11 dated 14-11-1942 was issued in his favour. Subsequently in May, 1945 Jayaram Naidu sold the superstructure to the present 1st defendant P. S. Sarma. The 1st defendant, for securing possession of the property instituted the suit O. S. No. 1994 of 1954 on the file of the City Civil court, Madras, against Ponnuswami's son Muniswami alleging that Muniswami was continuing in possession after the death of his father Ponnuswami. Muniswami resisted the suit. But his defences were overruled and the suit ended in a decree for possession of the superstructure in favour of the plaintiff in that suit, the present 1st defendant. The execution of the decree was stayed for one year. Thereafter, when proceedings in execution were taken by the present 1st defendant, the plaintiffs in the suit out of which the second appeal arises offered obstruction. The 1st plaintiff is the wife of Muniswami and plaintiffs are his sons, that is, the grandsons of Ponnuswami. They asserted their possession of the superstructure and claimed title to the same by virtue of registered settlement deed executed in their favour by Ponnuswami on 28-1-1944. An application for removal of obstruction filed by P. S. Sarma, was allowed on 13-9-1958 and it is to set aside the order directing the removal of obstruction filed and to declare their title to the superstructure that the present suit was filed by the plaintiffs. Originally Sarma was the party defendant. The 2nd defendant came on record as purchaser of the superstructure from Sarma on 6-2-1959. On the death of the 2nd defendant his legal representatives were brought on record as defendants 3 to 5.

(2.) THE Courts below have concurrently held that the plaintiffs cannot claim any title to the property under the settlement deed. Ponnuswami had lost title to the suit property by the Court sale evidenced by the sale certificate Ex. B-11 even in 1942. He had no right, title or interest in the property subsequent to the Court sale, to pass title to the plaintiffs. The trial Court examined the question of title to the land, though that was not in issue in the proceedings. The summary order whose validity was impugned in the suit, related only to the superstructure. The trial Court, on its view of the law and having regard to the finding as to the invalidity of the settlement deed, dismissed the suit with costs. On appeal, the learned Addl. City Civil Judge has decreed the suit as prayed for with costs, making it clear that the adjudication is only in respect of the superstructure and not in respect of the site on which the superstructure stands.

(3.) THE substantial claim of the plaintiff's is that the title of the 1st defendant to the superstructure had become extinguished by the law of limitation, before possession was attempted to be taken from them. It was contended for the plaintiffs that what was sold in the court auction to the auction-purchaser Jayaram naidu was moveable property, the superstructure. As moveable property, the right to secure possession thereof must be exercised within three years of vesting of title in the property. In the present case, so far as the plaintiffs are concerned, they were not parties to the suit O. S. No. 1994 of 1954 instituted by the present 1st defendant. The decree in that suit was against Muniswami. The present plaintiffs claim and assert title to the suit property independent of Muniswami. The submission on behalf of the plaintiffs was that it may be that they have no legal title to the superstructure under the settlement deed, but that they have perfected their title to the same by prescription, the 1st defendant's right to claim possession thereof having become barred by limitation. It was also contended that the decree in O. S. No. 1994 of 1954 cannot be executed against the plaintiffs, they being not parties to the same. The learned Additional City Civil Judge accepted the contentions of the plaintiffs and decreed the suit.