RAMASWAMY B Vs. M SEETHARAMAIAH

JUDGEMENT

(1.) This appeal has been preferred under Section 100 of the Civil Procedure Code against the Judgment and decree dated 28-11-1988 passed in A.S. No. 5 of 1987 on the file of the Subordinate Judge, Kothagudem, reversing the Judgment and decree dated 31-03-1987 passed in O.S.No. 10 of 1982 on the file of the District Munsif, Yellandu in Khammam District.

(2.) The appellants herein are the defendants and the respondent herein is the first plaintiff in the said suit O.S.No. 10 of 1982. For the sake of convenience, the parties as arrayed in the suit are referred to in this appeal. The respondent- first plaintiff and his mother as second plaintiff (now deceased) filed the said suit for redemption of usufructuary mortgage and possession of the suit property consisting of Ac.1.33 guntas of wet land in S.No. 19 of Garla village. The case of the plaintiffs is that they created an usufructuary mortgage in favour of the first defendant who is the husband of the second defendant with respect to the suit property belonging to them and delivered possession of the same after obtaining a sum of Rs. 1,500/- and they also executed a simple unregistered usufructuary mortgage deed dated 08-02-1960 and as per the terms of the said mortgage, the first defendant has to vacate the suit property and deliver possession of the same to the plaintiffs after receiving the mortgage amount of Rs. 1,500/-. In the year 1963 the proceedings under Section 145 Cr.P.C. in M.C.No. 17 of 1964 were initiated by the Sub-Divisional Magistrate, Kothagudem, against the plaintiffs and the defendants with respect to the suit land and in the said proceedings the Sub-Divisional Magistrate passed orders directing the first defendant to continue in possession of the suit property till the parties settle the mortgage issue in between them through Court. Thereafter, the plaintiffs got issued a notice to the defendants on 09-10-1981 through their Counsel calling upon the defendants to receive the amount and deliver vacant possession of the suit property. The defendants refused to receive the said notice and also failed to deliver the suit property after receiving the mortgage amount. The plaintiffs deposited the mortgage amount of Rs. 1,500/- into Court and filed the suit seeking the reliefs stated supra.

(3.) Resisting the claim of the plaintiffs, the defendants filed their written statement. The defendants admitted about the usufructuary mortgage created by the plaintiffs with respect to the suit property and also the execution of the unregistered usufructuary mortgage deed dated 08-02-1960. They also admit that they have been put in possession of the suit property as mortgagees. The defendants' case is that the plaintiffs obtained paddy of seven khandis and six bags on 'nagu' agreeing to repay at the rate of three bags per khandi per year within a period of three years and in default to repay the mortgage amount of Rs. 1,500/- and paddy as per nagu, the second plaintiff had agreed to sell away the suit land and executed an agreement to that effect on 3-10-1962. The defendants also pleaded at the time of creation of usufructuary mortgage the plaintiffs kept nine guntas of land out of the suit land with them and they have been cultivating the said land and the second plaintiff also executed an agreement on 29-09-1960 agreeing to give half of the yield from the said nine guntas of land after deducting the expenses. The plaintiffs failed to repay the mortgage amount and also failed to pay the paddy as per nagu and therefore the plaintiffs and the defendants settled their accounts in the presence of the village elders and agreed to the settlement and the terms of the said settlement are that the plaintiffs should relinquish their right over the suit land in favour of the first defendant and the first defendant should forego the mortgage money of Rs. 1,500/- and paddy recoverable towards nagu and an agreement dated 20-03-1980 (Ex.B-1) was executed by the second plaintiff in the presence of the elders-Venkata Ramulu, Mohan Reddy and Satyam. Since then, the defendants have been enjoying the suit property in the capacity of true owners and the plaintiffs never interfered with peaceful possession of the defendants. The plaintiffs filed the suit with a mala fide intention to harass the defendants and the suit is liable to be dismissed.