IMPORTANT POINT
Oral mortgages are not legally recognized; possession must be proven with concrete evidence.

JUDGMENT :

S. SOUNTHAR, J.

Prayer: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S. No. 21 of 2006, dated 3.4.2007, on the file of Principal Subordinate Judge, Kumbakonam confirming the judgment and decree made in O.S. No. 198 of 2003, dated 21.11.2005, on the file of Additional District Munsif Court, Kumbakonam.

1. The Second Appeal is directed against the judgment and decree made in A.S. No. 21 of 2006, dated 3.4.2007, on the file of Principal Sub-ordinate Judge, Kumbakonam confirming the judgment and decree made in O.S. No. 198 of 2003, dated 21.11.2005, on the file of Additional District Munsif Court, Kumbakonam.

2. The Plaintiff in the suit is the appellant. The suit is filed for bare injunction. The suit was dismissed by the trial Court. On appeal, the First Appellate Court affirmed the findings of the trial Court. Aggrieved by the concurrent findings of the Courts below, the unsuccessful plaintiff has approached this Court by way of this Second Appeal.

3. According to the appellant/Plaintiff, the suit property absolutely belongs to the first defendant. He mortgaged the suit property with the Cooperative Urban Bank, Kumbakonam and obtained a loan of Rs.75,000/-. Since the first defendant was unable to discharge the mortgage amount, the plaintiff, being the son of first defendant, discharged the same. The first defendant had no wherewithal to repay the amount to the plaintiff and hence on 1.4.2002, he created usufructory mortgage in respect of suit property in favour of the plaintiff for a sum of Rs.75,000/-. The usufructury mortgage was under an oral arrangement and the same was for a period of three years. It was further claimed by the plaintiff that he had been in possession and enjoyment of the suit property as a usufructory Mortgagee on condition that the first defendant has to repay the above said sum of Rs.75,000/- to the plaintiff on or before 1.4.2005 to get back the possession of the suit property. The second defendant is the second wife/step-mother of the plaintiff and defendants 3 to 5 are the children of first defendant through the second defendant. The defendants colluded together and dispossessed the property and hence the suit was filed for the relief of bare injunction.

4. The first defendant filed a written statement and the same was adopted by the other defendants. The defendants denied the right and possession of the plaintiff over the suit property. The allegation in the plaint as if the plaintiff discharged the mortgage debt due to the Cooperative Bank was specifically denied by the respondents and it was further claimed by them that the mortgage debt was discharged by the first defendant himself. It was also claimed that the plaintiff was allowed to reside in the property by the first defendant and the plaintiff taking advantage of the relationship, had stolen the title documents of the suit property and filed the present suit. The oral usufructory mortgage as pleaded by the plaintiff was specifically denied by the defendants. Therefore, asserting title as well as possession over the suit property, the defendants sought for dismissal of the suit.

5. Before the trial Court, the plaintiff was examined as PW-1 and the paternal aunt and sister of the first defendant was examined as PW-2. On behalf of the plaintiff, three documents were marked as Ex.A1 to Ex.A3. The first defendant was examined as D.W 1 and 34 documents were marked as Ex.B1 to Ex.B34.

6. The Trial Court, on appreciation of oral and documentary evidence available on record, came to the conclusion that the plaintiff failed to prove his possession over the suit property and dismissed the suit. Aggrieved by the same, plaintiff preferred an appeal in A.S. No. 21 of 2006, on the file of Principal Sub-Court, Kumbakonam. The First Appellate Court affirmed the findings of the trial Court. Aggrieved by the concurrent findings of the Courts below, the plaintiff is before this Court by filing this Se