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IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.S. SUNDAR, J.
Chandran - Appellant
Versus
Easu & Ors. - Respondents
S.A. Nos. 691 & 692 of 2017 and CMP No. 17744 of 2017
Decided On : 07-04-2022
Mortgage - Property Dispute - Indian Evidence Act, 1872 - Section 58, Section 17 - [SUIT PROPERTY, MORTGAGE, POSSESSION, INJUNCTION] - The court discussed the admission of mortgage by both parties, the requirement of documentary evidence for mortgage, and the permissive possession of the appellant. The court held that the appellant's possession was permissive and he had no right to claim title against the true owner. The judgment and decree of the Courts below were upheld.
Fact of the Case:
The appellant filed a suit for permanent injunction against the defendant to restrain interference with his possession of a property. The respondent filed a suit for declaration of title and recovery of possession of the same property. The trial court dismissed the appellant's suit, and the appellate court upheld the decision.
Finding of the Court:
The court found that the appellant's possession was permissive and he had no right to claim title against the true owner. The judgments and decrees of the lower courts were upheld.
Issues: The issues included the admission of mortgage, requirement of documentary evidence for mortgage, misconstruction of the Indian Evidence Act, and the appellant's right to seek injunction.
Ratio Decidendi: The appellant's possession was permissive, and he had no right to claim title against the true owner. The requirement of documentary evidence for mortgage was discussed, and the court upheld the judgments and decrees of the lower courts.
Final Decision: Both appeals were dismissed, and the judgments and decrees of the lower courts were upheld. No costs were awarded, and connected Civil Miscellaneous Petitions were closed.
JUDGMENT :
[Common Prayer:- Second Appeals filed under Section 100 of the Constitution of India, to set aside the judgements and Decrees passed in A.S.Nos.5 of 2014 & 40 of 2013 dated 03.07.2017 on the file of the Sub court Tiruvallur in confirming the Judgements and Decrees made in OS.Nos.139 of 2005 & 514 of 2004, dated 30.07.2013 on the file of the District Munsif Court at Tiruvalur.]
1. The plaintiff in the suit in OS.No.514/2004 on the file of District Munsif Court at Thiruvallur, is the appellant in S.A.No.692/2017. The appellant has also filed another appeal in S.A.No.691 of 2017against the Judgment and decree of the learned Subordinate Judge, Thiruvallur in A.S.No.5/2014 confirming the judgment and decree of the learned District Munsif, Thiruvallur in OS.No.139/2005 filed by the respondent in SA.No.691/017.
2. The appellant as plaintiff filed the suit in O.S.No.514/2004 for permanent injunction restraining the defendant from interfering with his peaceful possession and enjoyment of the suit property. The suit property is described as an extent of 246 sq. meter in survey Number 60/1 in Karikalavakkam Village Firka, Thiruvallur Taluk with a thatched hut. The suit property is also described with reference to four boundaries.
3. The case of the appellant in his plaint is that the suit property originally belonged to one Easu of Karikalavakkam Village. It is stated further that the said Easu mortgaged the suit property to one Ammavasai for a sum of Rs.2000/- in the year 1993 with an undertaking to remit the mortgage amount within one year. It is further pleaded in the plaint that the said Easu was unable to redeem the mortgage within the stipulated period and requested the plaintiff to redeem the mortgage in the year 1994 and permitted the plaintiff to reside in the suit property from the month of March-1994 by putting up a thatched hut.
4. It is further stated that ever since the date of permission, the plaintiff is in possession and enjoyment of the suit property by putting up a thatched hut. It is further stated that patta and other revenue records are in the custody of the plaintiff for a long number of years. Stating that the defendants attempted to dispossess the plaintiff from the suit property, the suit came to be filed on 01.08.2004 for permanent injunction. The 4th defendant in the appellant's suit who is described as the person who gave permission to the plaintiff and whose title was admitted by the plaintiff filed, OS.No.139/2005 for declaration of tile and for recovery of possession in respect of the very same suit property.
5. The case of the plaintiff in O.S.No.139/2005 is that the suit property was originally acquired by his father by name Chengan and that the plaintiff became the absolute owner of the property after the life time of his father by getting patta. It is stated that he permitted the defendant namely the plaintiff in O.S.No.514/2004, who is the son of his parental aunt by name Nagammal, to reside in the suit property along with him.
6. It is the specific case of the respondent who is the plaintiff in O.S.No.139/2005 that he never conveyed any right in favour of the defendant. It is seen that the suit in O.S.No.514/2004 was against the defendants 1 to 3 by describing them as strangers and the 4th defendant who is the plaintiff in O.S.No.139/2005 got himself impleaded subsequently.
7. The trial Court dismissed the suit filed by appellant after specifically holding that the appellant is in possession only as a permissive occupant and therefore, he is not entitled to seek injunction against the true owner. The appellant relied upon the evidence of respondent before the trial Court who admitted the prior mortgage and the possession of the appellant pursuant to the redemption of mortgage.
8. It is admitted in the course of trial that the alleged mortgage was stated to have been obtained by a third party was not registered or written mortgage and it is admitted that the mortgage itself was a oral arrangement. E
The appellant's permissive possession did not entitle him to claim title against the true owner, and the requirement of documentary evidence for mortgage was upheld.
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 th....
Registered mortgage deeds are superior to unregistered documents in establishing property possession, and revenue records serve as strong evidence of ownership.
The main legal point established in the judgment is that a suit for permanent injunction may not be legally sustainable without seeking the relief of declaration of title, especially when the plainti....
The main legal point established in the judgment is the importance of establishing lawful possession and discharge of obligations in property disputes, as well as the relevance of challenging relevan....
In a second appeal under Section 100 of the CPC, the High Court cannot re-appreciate evidence or interfere with concurrent factual findings unless a substantial question of law is demonstrated; addit....
Oral mortgages are not legally recognized; possession must be proven with concrete evidence.
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