The main legal point established in the judgment is that the right to redeem a mortgage does not extinguish without evidence, and lack of proof of title and possession can uphold a plaintiff's right to seek a decree for permanent injunction.

JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree in A.S.No.91 of 2003 on the file of the Principal District Judge, Vellore, dated 24.12.2003 confirming the Judgment and Decree in O.S.No.915 of 2000 dated 14.07.2003 on the file of the Principal District Munsif Court, Vellore.

The 2nd and 3rd defendants in the suit O.S.No.915 of 2000 on the file of the Principal District Munsif, Vellore, are the appellants before this Court. The appellants seek to challenge the concurrent Judgment and Decree against them. The facts which has culminated in the filing of the Second Appeal is herein below set out and the parties are referred to in the same rank as before the Trial Court.

2. The plaintiff had filed a suit for permanent injunction restraining the defendants from interfering with her peaceful possession and enjoyment of the suit property. The suit property was a house site with a basement constructed thereon bearing Door No.25 on Military Bazaar Street, Vellore Town, measuring East to West 4 ½ yards, North to South 9 Yards, bounded on the north by the street, on the south by Karim Sahib's house on the west by Kazim Baig's house and east by Shaju Sahib's house.

3. It is the case of the plaintiff that the suit property belonged to one Mohamad Kasim @ Sabjan Sahib and his wife Johara Bibi, who had sold the same to the plaintiff under a registered sale deed dated 05.02.1968. Kazim in turn had purchased the property from one Syed Kadar Sahib under a sale deed dated 17.08.1933.

4. It is the case of the plaintiff that from the date of her purchase she has been in possession of the property by paying property tax. Originally at the time of the purchase there was a tiled house in the suit property which had got dilapidated. In and around the year 1996 the plaintiff had removed the same and a fresh basement was put up. Thereafter, owing to certain financial constraints, the plaintiff was not able to proceed further with the construction. Just prior to the filing of the suit, the plaintiff had resumed the construction at which point in time, the defendants had started obstructing her work. Therefore, left with no other alternative, the plaintiff had come forward with the suit.

5. The 2nd and 3rd defendants had filed a written statement inter alia contending that the sale in favour of the plaintiff was a sham and nominal one. It is the case of these defendants that after the purchase of the property by Kasim from Syed Kadar Sahib on 17.08.1933, he had executed a usufructuary mortgage deed in favour of Fathima Bibi Ammal and Essac Sahib under a registered mortgage deed dated 19.08.1937. Thereafter, on 17.03.1941, the said Fathima Bibi had released her rights in the mortgage in favour of her son Essac Sahib. The said Essac Sahib died leaving the properties in the hands of his maternal uncle's son Karim Beig, who was the only legal heir living at that time.

6. It is further case of the defendants that Karim Beig was already the owner of Door Nos.24 and 26. Since Kasim Sahib had not redeemed the mortgage within stipulated time, he had orally sold the property to Karim Beig under a settlement deed dated 15.07.1946. Karim Beig had thereafter settled the property in favour of his son Ghouse Beig, the 2nd defendant in the suit. At the time of the settlement, Ghouse Beig was a minor and possession was taken on his behalf by his mother Amidha Bi.

7. The defendants would submit that the sale in favour of the plaintiff, who is none else than the daughter in law of Mohammed Kasim and Johara Bibi, during the subsistence of the mortgage was invalid and that apart the plaintiff has never been in possession of the property. The tax receipts which have been produced are all created for the purpose of the case since the suit property is a vacant site. On 31.05.2000, the 2nd defendant had sold the property to the 3rd defendant, who is now in possession and enjoyment of the property. They therefore pra