STATE OF TAMIL NADU Vs. MALAYALANGARAM CHETTIAR

JUDGEMENT

(1.) THE first defendant is the appellant. THE first respondent/plaintiff filed the suit for declaration and injunction.

(2.) THE case of the plaintiff is as follows: One Periyanayagi Ammal wife of Muthukaruppa Pillai for herself and on behalf of her adopted son of Sadasivam Pillai executed a mortgage in favour of Nallamuthan Chettiar for Rs.6,000 under Registered deed dated 9.12.1942. THE said Nallamuthan Chettiar assigned the mortgage to Sembayi Achi. She filed the suit in O.S.No.83 of 1960 and the suit properties were brought to sale as per decree in the said suit. One Kathiresan purchased the properties in court auction in E.P.No.268 of 1962 and sale certificate was issued on 17.11.1962. He took delivery of the properties through court in E.A.No.1080 of 1962 and delivery was duly recorded on 15.12.1962. Diraviam Pillai purchased the suit properties for Rs.5,000 from Kathiresan Chettiar under sale deed dated 11.5.1963 and he was also granted patta in his name. THE plaintiff purchased suit properties from Diraviam Pillai for Rs.19,000 on 3.9.1980. It now transpires that due to want of proper enquiry and mistake, the suit properties are alleged to have been declared as surplus land of Sadasivam Pillai. Diraviam Pillai learnt about the mistake of having treated the properties as the surplus land of Sadasivam Pillai through his daughter Vimala, when she showed the communication dated 13.9.1979 from Special Officer and the order issued by the Authorised Officer dated 25.4.1979. Neither the plaintiff nor Diraviam Pillai had any notice of any draft notification or final notification. Any such notification declaring the suit properties as surplus land of Sadasivam Pillai who had lost all title would not bind Diraviam Pillai or the plaintiff. Any such statement could be rectified by deleting the suit properties as surplus lands of Sadasivam Pillai. But, it was not done so. THE plaintiff's vendor issued a suit notice to the first defendant under Sec.80, C.P.C. on 21.11.1979. THE first defendant did not issue reply. Since the first defendant declared the suit properties erroneously as surplus land of the second defendant, the second defendant is added as a formal party. THErefore, the plaintiff has filed this suit for declaration of title to the suit properties and for consequential injunction restraining the first defendant from taking any proceedings affecting the rights of the plaintiff.

(3.) THE suit property an extent of 4 acres, 71 cents comprised in R.S.276/1A is said to be mortgaged by Periyanayagi Ammal and her adopted son in favour of Nallamuthan Chettiar who assigned the same in favour of Sembayi Achi. It is the case of the plaintiff that the mortgagee brought the property for sale after obtaining decree in O.S.No.83 of 1960. Ex.A-1 the same certificate will show that Kathiresan purchased the property in court auction on 15.10.1962. Ex.A-2 the delivery receipt will show that the property was delivered to Kathiresan. THE said Kathiresan under sale deed Ex.A-3 dated 11.5.1963 sold the same in favour of one Diraviam Pillai for Rs.5,000. THE said Diraviam Pillai sold the same in favour of plaintiff under sale deed Ex.A-5 dated 3.9.1980 for Rs.19,000. It is the case of the plaintiff that by virtue of the above sale deed, he is entitled to the suit property.