MUTHU PILLAI Vs. VEDA VYSA CHARIAR (DECEASED)

JUDGEMENT

(1.) The defendants Nos. 1 to 4 are the appellants. The suit was brought for the redemption of plaint lands alleged to have been mortgaged with possession by the plaintiff s predecessor-in-title in March 1875 for Rs. 20. The suit was brought on the 14th December 1913.

(2.) In a previous suit Original Suit No. 211 of 1908, the present plaintiff sued the same defendants Nos. 1 to 4 in ejectment on the al legation that the defendants trespassed upon the land sometime in 1900. The defendants contended that the plaintiff s predecessor-in-title and the plaintiff were never owners and they set up title in themselves as usufructuary mortgagees from a third person whom they set up as owner. The District Munsif found in that suit that the mortgagor of the defendants had the right in the property under the plaintiff s predecessor-in-title and though the defendants case that their mortgagor was the owner was false they could resist the plaintiff s claim to eject them as trespassers as they were entitled to be paid what was due to their mortgagor (as mortgagee) before possession could be given to the plaintiff in redemption, (The plaintiffs case in that suit was that, though there was a mortgage for Rs. 20 in favour of the defendants mortgagor that mortgage had been redeemed long ago by the plaintiff s predecessor in-title). That alleged redemption was found against in that suit. Against the decree of the Distriot Munsif dismissing that suit on those two findings, namely (1) that the plaintiff was the owner of the land but he was not entitled to possession, as the lands were outstanding on mortgage and the suit was not brought for redemption of mortgage, and (2) that the defendants were not the mortgagees from an owner but could only claim to be paid the original mortgage amount due to their mortgagor before parting with possession, there were two Appeals Nos. 898 and 923 of 1911, filed in the Subordinate Judge s Court of Ramnad by the plaintiff and the defendants respectively, the plaintiff contending in his appeal that the first conclusion of the Munsif that the plaintiff was bound to bring a suit for redemption, because the original mortgage had not yet been redeemed was erroneous, and the defendants contending in their cross-appeal that the finding that their mortgagor was not the owner but only was himself a mortgagee under the plaintiff s predecessor-in-title and that, therefore, the defendants were liable to be redeemed was erroneous. The Subordinate Judge by his judgment Exhibit G. paragraphs 7 and 9, upheld both the findings of the District Munsif and dismissed both the appeals.

(3.) It was under these circumstances that the present suit was brought to redeem the original the made by the plaintiff s predecessor-in-title to the defendants mortgagor, the defendants mortgagor having mortgaged to the defendants for more than the original mortgage amount of Rs. 21 and he one, having practically assigned his original mortgage-right to the defendants for far more than its value.