The central legal point established in the judgment is the requirement to prove possession in a claim for permanent injunction and the implications of Section 78 of the Transfer of Property Act on the rights of an assignee mortgagee.

JUDGMENT

(Prayer: This Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree, dated 19.12.2014, made in A.S.No. 64 of 2012, on the file of the Camp Court, Kuzhithurai (II Additional Sub Judge, Nagercoil), reversing the judgment and decree, dated 25.07.2012, made in O.S.No.214 of 2007, on the file of the I Additional District Munsif, Kuzhithurai.)

1. This second appeal has been filed against the judgment and decree, dated 19.12.2014, made in A.S.No. 64 of 2012, on the file of the Camp Court, Kuzhithurai (II Additional Sub Judge, Nagercoil), reversing the judgment and decree, dated 25.07.2012, made in O.S.No.214 of 2007, on the file of the I Additional District Munsif, Kuzhithurai. The appellants herein are the defendants and the respondent herein is the plaintiff in the original suit.

2. Brief substance of the plaint, in O.S.No.214 of 2007, is as follows:

The suit property originally belonged to a lady, named Snegapoo. The said Snegapoo executed a mortgage deed in favour of her daughter Gnanal and her son-in-law-Samuel. On 03.10.1961, Gnanal and Samuel assigned the mortgage in favour of Chellakan, D/o. Chinnappan. On 27.02.1964, Chellakan executed a mortgage sale deed in favour of the plaintiff. The plaintiff is in enjoyment of the property. On 05.06.1969, Snegapoo executed a settlement deed in favour of her daughters, viz., Annal and Gnanal. In that settlement deed, she has mentioned about the earlier mortgage. Annal and Gnanal and Samuel were all dead. They have not redeemed the mortgage. The plaintiff obtained the title and he is in possession of the property. The defendants try to trespass into the property and hence, the suit.

3. Brief substance of the written statement filed by the defendants in O.S.No.214 of 2007, is as follows:-

It is true that the property belonged to one Snegapoo and she executed a mortgage in favour of her daughter Gnanal and her husband Samuvel. But it is wrong to state that the lease was assigned to Chellakan, on 03.10.1961. The alleged assignment of mortgage was never in force, even before the alleged mortgage, on 06.06.1119 Malayala Varudam, Gnanal and Samuvel executed a lease deed in favour of Backiyam D/o. Isakki, on 22.12.1956. Gnanal and Samuvel executed another lease deed in favour of Selvamani Nadar. The lease deed, dated 03.10.1961, was subsequent to the earlier release deeds. But, none of the mortgagees were given actual possession of the property. Gnanal and Samuvel were running a chit fund. They used to execute lease deeds in favour of their customers as a security. But the property was in possession and enjoyment of Gnanal and Annal. They were having the absolute title and possession and they constructed a compound wall and they planted rubber and coconut trees. When the lessor herself was not having any possession, the plaintiff can not claim possession. The property is mentioned as 10 cents in the documents. The actual extend available on ground is only 8 cents. After the death of Samuvel and Gnanal, the Legal representatives of Samuvel and Gnanal on due consideration executed a sale deed on 05.04.1991 in favour of the defendants. The defendants are having title and enjoyment in the property. The property is already in the enjoyment of the defendants and hence, there is no necessity for the defendants to trespass into the property.

4. On the above said pleadings, the trial Court framed the following issues:-

(i) Whether the plaintiff is entitled for a declaration of title and for permanent injunction?

(ii) What are the other reliefs available to the plaintiff?

5. On the side of the plaintiff, two witnesses were examined and 17 documents were marked. On the side of the defendants, 2 witnesses were examined and 21 documents were marked. One court witness was examined and 2 court documents were marked. After considering the pleadings and evidence, the trial Court dismissed the suit.

6. Against the judgment and decree, the plaintiff preferred