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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
A. Sengoda gounder & Others – Appellant
Versus
K. Chinnamuthu & Others – Respondent
S.A. No. 656 of 2008 & M.P. No. 1 of 2008
Decided On : 15-02-2021
Mortgage - Suit for Declaration and Permanent Injunction - 28.01.1971, 25.09.1972 - [C.P.C. Section 100] - The judgment discusses the validity of an oral purchase of the suit properties, the grant of patta in favor of the defendants, and the legal bar of limitation. The court concludes that the plaintiffs' suit is barred by law of limitation and estoppel, and the substantial questions of law raised by the plaintiffs are answered by holding that the oral sale put forth by the defendants cannot be legally sustained and the patta document projected by the defendants cannot be held as the documents of title.
Fact of the Case:
The plaintiffs sought declaration and permanent injunction for a property originally belonging to Ayyamperumal, mortgaged to Pappathiammal. The defendants claimed oral purchase and patta grant, while the plaintiffs alleged permissive possession and sought possession of the property.
Finding of the Court:
The court found the plaintiffs' suit barred by law of limitation and estoppel, and rejected the substantial questions of law raised by the plaintiffs. The judgment and decree of the lower courts were confirmed.
Issues: Validity of oral purchase, grant of patta, maintainability of the suit, and the bar of limitation and estoppel.
Ratio Decidendi: The plaintiffs' suit was barred by law of limitation and estoppel, and the substantial questions of law raised by the plaintiffs were rejected.
Final Decision: The judgment and decree of the lower courts were confirmed, and the second appeal was dismissed with costs.
JUDGMENT :
(Prayer: Second Appeal filed under Section 100 of C.P.C., against the judgment and decree dated 07.03.2007 made in A.S.No.183 of 2006 on the file of the Principal Sub Court, Salem, confirming the judgment and decree dated 17.07.2006 made in O.S.No.555 of 2003 on the file of the Principal District Munsif Court, Salem).
1. Challenge in this second appeal is made to the judgment and decree dated 07.03.2007 passed in A.S.No.183 of 2006 on the file of the Principal Subordinate Court, Salem, confirming the judgment and decree dated 17.07.2006 passed in O.S.No.555 of 2003 on the file of the Principal District Munsif Court, Salem.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court. The plaintiffs in O.S.No.555 of 2003 are the appellants in this second appeal.
3. Suit for declaration and permanent injunction.
4. Briefly stated, the case of the plaintiffs is that the extent of 3.38 acres in Survey No.21/4 situated in Sevampalayam Village, Salem Taluk was originally the ancestral property of Ayyamperumal and he purchased the same under the sale deed dated 17.06.1943 and enjoying the same in his own right and he had only a son by name Ammasi Gounder. The plaintiffs 1 and 2 are the sons and the plaintiffs 3 and 4 are the daughters and the 5th plaintiff is the widow of Ammasi Gounder. Ayyamperunal, his son Ammasi Gounder and his sons, the plaintiffs 1 and 2 jointly borrowed a sum of Rs.2,000/- on 28.01.1971 from one Pappathi Ammal, W/o Kandasamy Gounder and as security, executed a simple mortgage deed in respect of the abovesaid property on 28.01.1971. The interest for the loan was Rs.1.25 /- per Rs.100/- per month. On 25.09.1972, again Ayyamperumal and the abovesaid three persons obtained the second loan of Rs.2,000/- from Pappathi Ammal and executed the second registered mortgage deed dated 25.09.1972 in respect of the abovesaid property and the possession of the abovesaid property remained with the mortgagors. The mortgagors were unable to pay the principal amount from 1971 to 1981 due to the failure of monsoon and other natural causes. However, they had paid the interest till 1981. The mortgagee Pappathi Ammal insisted the mortgagors to pay back principal amount and threatened to go to the court. Left with no other alternative to discharge the debt, the mortgagors permitted Pappathi ammal to cultivate 1.25 acres of land and to adjust the income from the land towards the discharge of the mortgage debt and Pappathi ammal was directed to pay the Kists for the said property . The abovesaid 1.25 acres is the suit property. Thus, Pappathi ammal was directed by the mortgagors to take the possession of 1.25 acres namely the suit property out of 3.38 acres covered in the mortgage deeds. The mortgagee agreed to surrender the possession of the suit property to the mortgagors when the mortgage debt is realized from the income of the suit property. Thus the possession of the suit property by the mortgagee is only permissive possession without transfer of any right, title or ownership in the suit property. Ayyamperumal died about 25 years back and his son Ammasi Gounder died about 16 years back. The plaintiffs are the legal heirs of Ammasi Gounder. The defendants 1 to 3 are the sons of Pappathi Ammal and the defendants 4 and 5 are the Pangalis of the defendants 1 to 3. Pappathi ammal died about 6 years back. From 1992 onwards, the plaintiffs demanded Pappathi ammal and her sons to surrender the possession of the suit property since the mortgage debt should have been realized by then. But they had been evading to surrender the possession of the suit property apprising that no income was received from the suit property due to the failure of monsoon. The plaintiffs believed the abovesaid version of the defendants and waiting for them to deliver the possession of the suit property. While so, the defendants endeavored to put up the house in the suit property and on being questioned, it was noted that
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