VALLIAMMAL DIED Vs. M K MUSTHAFA DIED

JUDGEMENT

(1.) 1. This second appeal has been filed against the judgment and decree dated 30.12.1986 on the file of the learned Subordinate Judge, Chingleput and made in A.S.No.22 of 1985, reversing the judgment and decree dated 15.2.1985 in O.S.No.188 of 1982 on the file of the District Munsif, Madurantakam.

(2.) THE facts that are necessary for deciding the substantial questions of law in this second appeal are as follows: THE suit property originally belonged to Sri Kothandaramaswami Devasthanam, Madurantakam. THE suit site and the adjacent property was in the occupation of Parimala Kanthiammal and she put up a thatched construction over the suit site. She was residing in the property adjacent to the suit site. Parimala Kanthammal usufracturarily mortgaged the superstructure over the suit site to one Rathina Naicker and his wife Lakshmi Ammal on 26.8.1953, who, in turn was collecting the rent from Parimala Kanthammal by putting her in possession of the said property. THE said Parimala Kanthammal sold the superstructure over the suit property to the defendant on 20.4.1956 and the defendant was paying to the defendant on 20.4.1956 and the defendant was paying rent to Rathina Naicker and his wife Lakshmiammal. THE said Rathina Naicker and Lakshmi Ammal assigned the usufructuary mortgage dated 26.8.1953 in favour of Abdul Khader Sahib, the father of the plaintiff and thereafter, the defendant began to pay rent in respect of the superstructure to Abdul Khader Sahib. Abdul Khader Sahib purchased the suit property on 7.2.1958 from Kothandaramaswami Devasthanam, Madurantakam and asked the defendant to quit and deliver vacant possession of the suit property after removing the superstructure and by paying the principal sum of Rs.350 due under the usufructuary mortgage deed mentioned above. As there was no compliance of demand, Abdul Khader Sahib filed a suit for sale of the mortgaged property to realise the amount due under the said mortgage deed in O.S.No.214 of 1960 on the file of the District Munsif's Court, Chingleput against the defendant and her vendor Parimala Kanthammal. THE defendant is estopped from denying the title of Abdul Khader with regard to the mortgaged property. THE suit in O.S.No.214 of 1960 was decreed by the trial court, but in appeal in A.S.No.428 of 1961 on the file of the District Court, Chingleput, the judgment and decree of the trial court were reversed and the suit filed by Abdul Khader Sahib was dismissed. THE defendant, after the disposal of the appeal, requested Abdul Khader Sahib to permit her to continue in the suit property for some more time and she was permitted to continue in possession by Abdul Khader Sahib on or about 1.9.1962. THE possession of the defendant is permissive from 1.9.1962. Abdul Khader Sahib died in April, 1963 and in the family arrangement between the plaintiff, his brothers and sisters in or about August, 1963, the suit property was allotted to the plaintiff. Patta for the suit property was granted in favour of the plaintiff under Tamilnadu Act 30 of 1963 by the Settlement Tahsildar after holding an enquiry on 2.4.1970. An appeal filed in C.M.A.No.138 of 1970 on the file of the Principal Subordinate Judge, Chingleput by the defendant as appellant, was dismissed and the order of the Settlement Tahsildar, dated 2.4.1970 has become final. THE plaintiff has been paying tax to the Municipal Authorities and the property is registered in the name of the plaintiff by the abovesaid authority. THE defendant did not vacate and deliver vacant possession of the suit property despite notice issued to her. THE defendant is liable to pay damages at the rate of Rs.15 per month. It is under the said circumstances, the plaintiff has come forward with this suit for declaration of his title to the suit property for delivery of vacant possession of the suit property and for damages at the rate of Rs.15 per month till delivery of possession.

(3.) THE fact remains that the suit site and the land adjacent to it belonged to Sri Kothandaramaswami Devasthanam, Madurantakam and the suit property is a Thiruvilakku Manyam for the abovesaid temple. A perusal of Ex.A-1 dated 26.8.1953, the registration copy of usufructuary mortgage deed executed by Parimala Kanthammal in favour of one Rathina Naicker and his wife Lakshmi Ammal would disclose that the suit site and the portion adjacent to it were usufructuarily mortgaged in favour of the said Rathina Naicker and his wife for a sum of Rs.350. It would also disclose that the abovesaid property had come to Parimala Kanthammal from her grandfather Kothandarama Gounder. It is not in dispute that the superstructure standing in the suit property was put up by Parimala Kanthammal, though the site belonged to the abovesaid devasthanam. THE pleading in the plaint would disclosed that the said Rathina Naicker and his wife Lakshmi Ammal put Parimala Kanthammal in possession of the suit property inclusive of the superstructure standing thereon on the understanding of Payment of rent by Parimala Kanthammal to the mortgagees. Though there is no evidence to establish such lease agreement between Parimala Kanthammal on the one hand and Rathina Naicker and his wife on the other hand, it is not in dispute that Parimala Kanthammal continued to be in possession of the suit property even after the execution of the usufructuary mortgage deed dated 26.8.1953. Ex.A-2, dated 20.4.1956 is the registration copy of the sale deed executed by Parimala Kanthammal in favour of the defendant Valliammal with regard to the superstructure in the suit property. A perusal of Ex.A-2 would disclose that Parimala Kanthammal, as owner of the superstructure, sold the said superstructure in favour of the defendant for Rs.150 admitting the ownership of Kothandaramaswami Devasthanam, Madurantakam to the site, on which the superstructure stands. It would also disclose that the defendant was put in possession of the said superstructrue along with the site referred to above at the time of the execution of the abovesaid sale deed. THE abovesaid documentary evidence would go to show that the superstructure in the suit property has gone to the hands of the defendant as owner thereof along with the site mentioned in Ex.A-2 though title to the abovesaid site vested with Sri Kothandaramaswami Devasthanam, Madurantakam. Ex.A-3, dated 4.12.1957 is the registration copy of the assignment deed executed by Rathina Naicker and his wife Lakshmi Ammal in favour of Abdul Khader Sahib. A perusal of Ex.A-3 would disclose that the usufructuary mortgage obtained under Ex.A-1, dated 26.8.1953 was assigned by Rathina Naicker and his wife Lakshmi Ammal in favour of Abdul Khader Sahib for Rs.350. Admittedly Abdul Khader Sahib as plaintiff, instituted a suit on the abovesaid assigned mortgage against Parimala Kanthammal and Valliammal, the defendant herein, for recovery of the amount due under the said mortgage and a preliminary decree was passed in favour of the plaintiff for sale of the first item of the hypotheca in the first instance and the sale of the second item of the hypotheca as last item as seen from the printed copy of the judgment in O.S.No.214 of 1960, dated 25.3.1961, marked as Ex.A-6. In the appeal in A.S.No.428 of 1961 filed by Valliammal, the defendant herein, on the file of the learned District Judge, Chingleput against the judgment and decree in O.S.No.214 of 1960; the appellate court has set aside the judgment and decree of the trial court and allowed the appeal on the ground that the said mortgage was really discharged and the subsequent assignment in favour of the plaintiff was merely a contrivance to get at the properties in collusion between the mortgagees. In the second appeal in S.A.No.560 of 1963 on the file of this Court preferred against the judgment and decree in A.S.No.428 of 1961 dated 28.8.1962, this Court was pleaded to hold that there is something more suspicious in the action of the plaintiff in bringing the suit against the defendants and, therefore, there can be no interference in the judgment and decree passed by the first appellate court, though not on the same grounds, on which the first appellate court has come to that conclusion. THErefore, Abdul Khader Sahib could not get anything out of the proceedings initiated as mentioned above by getting assignment of the usufructuary mortgage deed executed by Parimala Kanthammal in favour of Rathina Naicker and his wife Lakshmi Ammal with regard to the suit property.