V VENGAMA NAIDU Vs. BUGGA MUTT

JUDGEMENT

(1.) This appeal has been preferred against the judgment and decree dated 12-4-1989 passed in A.S.No. 61/80 on the file of Principal Subordinate Judge, Tirupati, reversing the judgment and decree dated 18-3-1980 passed in O.S.No. 466/73 on the file of the Additional District Munsif at Tirupati. The appellants herein are the respondents 8, 9,10,12 & 13 in A.S.No.61/80. They are not the defendants in the suit O.S.No. 466/1973, but they were added as parties to the appeal A.S.No. 61/1980 as per the orders of the first appellate Court in C.M.P.No. 194/1983 dated 11-7-1986. The respondent herein is the plaintiff in the suit O.S.No. 466/1973. For the sake of convenience the parties are being referred to as they are arrayed in the suit.

(2.) The respondent-plaintiff filed the said suit against the first defendant Chennamchetty Venkatasubbaiah Chetty and the 2nd defendant Chennamchetty Nagarathnam Chetty who is the son of the 1st defendant. After the death of the 1st defendant his other legal heirs were added as defendants 3 to 7. The said suit was filed for declaration of plaintiff's title and for recovery of possession of the suit property and also for an order of mandatory injunction directing the defendants to remove the fencing and shed unlawfully put up in the suit property and for damages of Rs. 1,400/- and future damages at Rs. 100/- per annum from the date of the suit till the date of possession. Plaint A Schedule suit property consists of 19 cents in old S.No. 261/2 and 11 cents in old S.No. 261/2 which are now in the present S.No. 314/2 within specific boundaries situated at Tirupati in Chittoor District. There are fruit bearing trees like mango, coconut, tamarind, dirasana etc., on the said land. Plaint B Schedule suit property is the value of the trees cut and taken away by the defendants 1 and 2.

(3.) The case of the plaintiff-Mutt is that it is a religious institution, that the suit property belonged to the plaintiff-mutt, that the Mahant of the plaintiff- mutt mortgaged the plaint schedule properties under a registered deed of usufructuary mortgage dated 25-4-1921 (Ex.A-1) in favour of Chennamcetty Nagaiah Chetty the father of the first defendant and delivered possession of the same. As per the terms of that usufructuary mortgage deed, the mortgagee was entitled to enjoy the usufruct of the hypotheca inclusive of the other properties described in the schedule in lieu of interest on the principal sum of Rs. 2,925/- and the mortgagor i.e., the plaintiff-mutt is entitled to redeem the mortgage after 30-5-1941. The mortgagee died leaving behind his only son the first defendant who succeeded to the estate of his father and also to the rights of usufructuary mortgage deed. As such the first defendant was in possession and enjoyment of the suit properties. The plaintiff-mutt filed O.S.No. 13/57 on the file of the District Munsif at Tirupati, against the first defendant herein for redemption of the said mortgage and for rendition of accounts and for possession. After contest a preliminary decree for redemption was passed on 29-9-1959 (Ex.A-2 is the printed copy of judgment and Ex.A-3 is the certified copy of the decree in O.S.No. 13/1957). The defendant in that suit preferred appeal A.S.No. 36/1960 on the file of the Sub-Court at Chittoor and the preliminary decree was confirmed on 22-7-1960 granting four months time for redemption. The plaintiff-mutt complied with the terms of the preliminary decree and thereupon final decree was passed for redemption. Ex.A-4 is the printed copy of the judgment in A.S.No. 36/1960 and Ex.A-5 is the certified copy of the suit register extract of O.S.No. 13/1957. Thereafter the plaintiff filed execution petition E.P.No. 355/1961 for delivery of possession of the mortgaged properties including the suit properties and possession was delivered by the Court and the plaintiff-mutt passed a receipt Ex.B-3 on 17-10-1961 for taking delivery of the property through Court and the delivery was recorded by the Court on 17-11-1961. Thereafter the plaintiffmutt was in exclusive possession and enjoyment of the suit land. The usufruct of fruit bearing trees was also auctioned in the public auction and a dead mango tree in the suit schedule land was also sold in public auction on 9-3-1962. While the matters stood thus, defendants 1 and 2 colluded together and unlawfully trespassed and put up fencing all around on 1-11-1966 and they have also put up a shed in the midst of the garden. Then the Manager of the plaintiff- mutt made a complaint against the defendants for the offence under Section 447, IPC. After trial the defendants 1 and 2 were acquitted and the same was confirmed by the High Court in Criminal Appeal No. 240/1968. Ex.B-4 is the certified copy of the judgment in C.C.No. 3/1967 wherein the defendants were acquitted. Ex.B-5 is the certified copy of the order in Criminal AppealNo.240/1968. Aregistered notice dated 4-11-1996 was issued onbehalf of the plaintiff calling upon the defendants to remove the fencing and the shed, but the defendants did not comply with the demand and they also unlawfully cut away the trees detailed in the plaint B schedule, hence the plaintiff-mutt filed the suit for the relief as stated supra.