JUDGMENT

The defendant is the appellant.

2.The plaintiff had filed O.S.No.490 of 1999 on the file of the I Additional District Munsif Court, Kuzhithurai for the relief of permanent injunction. The suit was dismissed by the trial Court. The plaintiff had filed A.S.No.82 of 2002 on the file of the Subordinate Court, Kuzhithurai. The First Appellant Court was pleased to grant a qualified decree for permanent injunction in favour of the plaintiff that the defendant should not disturb the possession of the plaintiff unless by due process of law. Challenging the same, the defendant had filed the above second appeal.

3.The second appeal was allowed by this Court on 06.11.2009 setting aside the decree passed by the First Appellate Court. The respondent in the appeal had filed Review Application No.113 of 2009 and the said Review Application was allowed on 13.08.2013 setting aside the judgement and decree dated 06.11.2009. Thus, the present second appeal has been listed for fresh hearing.

Pleadings of the parties:

4.The plaintiff had contended that he is the owner of 6 acres and 26 ½ cents in the suit survey numbers by way of Court auction purchase dated 09.11.1984. According to the plaintiff, he got delivery of the property through Court in E.P.No.59 of 1982 on 17.02.1991. The plaintiff had further contended that the defendant had filed O.S.No.602 of 1997 before the same Court for the relief of permanent injunction and in the said suit, the plaintiff has also filed a counter claim for the relief of declaration that the decree in O.S.No.394 of 1997 as null and void.

5.The plaintiff had further contended that the defendant had initiated proceedings before the Revenue Divisional Officer, Padmanabhapuram under Section 145 Cr.P.C in order to overcome the civil Court decree. He had further contended that some persons tried to disturb the possession of the plaintiff in September 1999 and hence, the present suit.

6.The defendant had contended that the decree passed in O.S.No.242 of 1967 on the file of the District Munsif Court, Kuzhithurai is null and void on the ground that it was filed against a dead person namely Siluvai Arukkanchi. That apart without impleading all the legal heirs of the deceased defendant, only one of the legal heirs who was a minor at that point of time was impleaded. The defendant had further contended that the said decree is invalid and the plaintiff did not get physical possession of the property, but it was only a paper delivery. He had further contended that the suit property was subject to usufructuary mortgage and the usufructuary mortgagee was in possession of the property. Hence, the decree holder is not entitled to get physical possession of the property without redeeming the usufructuary mortgage.

7.The defendant had further contended that the suit in O.S.No.242 of

1967 was based upon a simple mortgage dated 18.04.1955. 6 months thereafter, the owner of the property has created an usufructuary mortgage in favour of one Siluvai Arukkanchi on 04.10.1955. The said mortgage was not redeemed till 05.10.1985 and hence, the redemption has become time barred. Therefore, the usufructuary mortgagee has become the absolute owner of the property in the year 1985 itself. When the property was brought to auction in the year 1991, the original owner of the property has already lost his title and hence, the execution proceedings and the delivery are invalid and void in nature.

8.The defendant had further contended that the legal heirs of usufructuary mortgagee have executed a registered sale agreement in favour of the defendant on 30.07.1997 and based upon the said sale agreement, the defendant has also been put in possession of the property. The defendant had further contended that the plaintiff attempted to disturb the possession of the defendant and hence, he had initiated 145 proceedings before the Revenue Divisional Officer, Padmanabhapuram. By an order dated 16.07.1998, the R.D.O, Padmanabhapuram had passed an order protectin