CHINNASWAMI PADAYACHI Vs. DARMALINGA PADAYACHI

JUDGEMENT

(1.) The defendant appeals from a decree awarding the plaintiff possession of 1 acre and 32 cents of land comprised in A schedule with mesne profits. The dispute is between rival purchasers of the same property, in mortgage suits brought by the first and second (simple) mortgagees, without impleading each other. The following are the material facts. Chakrapani, the owner of properties in A and B schedules, mortgaged them to the defendant on 21 July, 1905. On 4 November, 1905, he mortgaged A schedule properties together with 19 cents of other land to one Ponnuswami. Ponnuswami s(the second mortgagee s)heirs sued the mortgagor in O.S. No. 601 of 1914. By Order 34, Rule 1 they were not required to join the first mortgagee in his suit and he was not joined accordingly, though they must have known that there was a first mortgage on the A schedule property, as it was registered. The 19 cents of land which was not included in the first mortgage was sold first and a part of the debt was realised. The decree-holders seem not to have taken any further steps to execute the decree for a considerable time against A schedule property owing probably to the fact it was subject to a prior mortgage. In this state of affairs the defendant brought his suit on the first mortgage in O.S. No. 274 of 1917 without impleading the second mortgagee and obtained a decree and in-execution bought the properties in A and B schedules himself on 21 October, 1918 and obtained possession in January, 1919. The plaintiff obtained a transfer of the decree in O.S. No. 601 of 1914 from Ponnuswami's heirs and brought the A schedule property again to sale and purchased it himself in January, 1924. As he could not get possession he brought this suit in 1924. Thus A schedule property is the only property common to both mortgages and in respect of it the plaintiff is a second mortgagee-purchaser who purchased in a suit first instituted, the purchase being later than that of the defendant; and the defendant is a first mortgagee-purchaser who purchased in a later instituted suit, the purchase being earlier than that of the plaintiff.

(2.) The plaintiff prayed for unconditional possession of A schedule property or in the alternative for permission to redeem A and B schedule properties on payment of the first mortgage debt. The defendant offered to redeem the plaintiff's second mortgage and if the Court should hold that the plaintiff is entitled to retain the property on redeeming the first mortgage he claimed the value of improvements effected on A schedule property. As both parties wanted to keep their purchase and for that purpose were willing to redeem each other, the real question was which of them had the better title to the land and on what terms, if any, he should redeem the other. The second issue sufficiently covered this point and the third issue raised the question of defendant's improvements.

(3.) At the trial the plaintiff, no doubt on advice, gave up the prayer for alternative relief, i.e., possession on condition of redeeming the defendant's first mortgage debt and as the Munsif says elected to proceed to trial on the footing that he is entitled to unconditional possession of the property. The second issue which raised the question whether the plaintiff or the defendant was entitled to redeem the other and keep the property was thus dropped and with it the third issue was also dropped. The only issue left was whether the plaintiff was entitled to unconditional possession.