KATHIRAYASAMI NAICKER Vs. DEWAN BAHADUR VRAMABADRA NAIDU

JUDGEMENT

(1.) The plaintiff s father Kadiriyasami on the 15th September 1893 mortgaged to Sabapathi Chetty, the 2nd defendant, what may generally be termed the Zasmindari Estate of Doddappa naikannr. The mortgagee sued to enforce his security in Original Suit No. 3 of 1901 on the file of the District Court of Madura and obtained a decree for sale on October 1st, 1901. He transferred the decree on May 38th, 1906, to Mr. Ramabhadra Naidn, the 1st defendant, who executed the decree brought what presumably were the mortgaged properties to sale and purchased them himself after obtaining the necessary sanction from Court. Kadiriyasami Naicker, the mortgagor judgment-debtor, however, died before the final execution and sale. The 1st defendant after his purchase obtained a sale-certificate from Court and got possession of the properties which, it was assumed he purchased. The Zamindari of Doddappanaikanoor consists of the 2 villages of Doddappanaikanoor and Sempatty together with their hamlets. In the said two villages there are ayan punja garden lands of about 9462 kulis (a kulis is about 5/7th of an acre) besides waste land, hills and forests which the mortgagor, owned as Zemindar. Besides these, there were pannai (home-far) lands in which the Zemindar was entitled to both the warams. The total extent of such pannai lands in the Zamindari is in dispute and it is difficult to ascertain it from the evidence on the record.

(2.) The question in dispute in appeal is about the extent of pannai lands purchased by the 1st defendant in the Court sale. According to the plaintiff, an extent of 226 kulis, which at the time of the mortgage to Sabapathi Chetti was admittedly in the possession of one Kamulammal, the widow of the predecessor of Kadiriyasami, was not included in the mortgage or the suit or the decree or the execution-sale and did not pass to the 1st defendant as purchaser; while according to the 1st defendant, the said lands and in fact all the pannai lands within the geographical limits of the Zemindari, whether in the possession of Kadiriyasami, the Zemindar, or not, were included in the mortgage and were thereafter included in the suit and the decree and were sold.

(3.) [His Lordship next discussed the evidence and concluded:]