Thangavel vs Palanisamy .. 1St
2022 Latest Caselaw 3760 Mad

                                                                                     SA.No.141/2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 28.02.2022

                                                      CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                        SA.No.141/2022 and CMP.No.2894/2022



                    Thangavel                                     .. Appellant/2nd defendant


                                                        Vs.


                    1.Palanisamy                                  .. 1st Respondent/Plaintiff
                    2.Rangasamy                                   .. 2nd Respondent /1st Defendant


                    Prayer:- Second Appeal filed under Section 100 of the Civil Procedure

                    Code to pass an order to set-aside the judgment and decree made in

                    AS.No.9/2016 dated 15.02.2019 on the file of the learned Sub-Judge,

                    Gobichettipalayam confirming the judgment and decree made in

                    O.S.No.64/2012 dated 02.04.2016 on the file of the District Munsif Court

                    of Gobichettipalayam.


                                      For Appellant           :     M/s.D.Kamatchi


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                                                                                       SA.No.141/2022



                                                      JUDGMENT

(1) The 2nd defendant in the Suit in O.S.No.64/2012 on the file of the

District Munsif Court, Gobichettipalayam is the appellant in this

Second Appeal.

(2) The 1st respondent in this Appeal as plaintiff, filed the Suit in

O.S.No.64/2012 before the District Munsif Court,

Gobichettipalayam for declaration of his title and for recovery of

possession. The Suit property is described under two items.

(3) The 1st item is an extent of 1 acre in old S.No.328 and new S.No.129

out of the total extent of 5.36.0 hectares. The 2nd item is a property

shown as an extent of 50 cents in the same survey number. The Suit

properties are suitated in Arakkankottaikarai Village,

Gobichettipalayam Taluk.

(4) It is not in dispute that the plaintiff is the owner of the property by

virtue of two Sale Deeds dated 27.03.1984 and 30.05.1990

respectively. It is the case of plaintiff that in the year 1997 he

borrowed a sum of Rs.50,000/- from the 1st defendant orally in the

presence of a few people and that he agreed to hand over possession

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to the 1st defendant to cultivate the Suit property for a period of 15

years with an understanding that the 1st defendant is entitled to be in

possession without paying any rent, in lieu of interest payable by

the plaintiff for the amount borrowed. Stating that the 1 st defendant

refused to deliver possession when the plaintiff offered to pay a sum

of Rs.50,000/- the plaintiff came forward with the Suit for

declaration of his title and for recovery of possession.

(5) The Suit was contested by the 1st defendant denying the entire

averments made in the plaint. The 1st defendant contended that the

plaintiff agreed to sell the property to the 1st defendant for a sum of

Rs.2,01,000/- by way of a written agreement, and a sum of

Rs.1,07,000/- was paid on the date of agreement and that the 1st

defendant has also subsequently paid a sum of Rs.43,000/- and

Rs.35,000/- and that only a sum of Rs.16,000/- to be paid under the

Sale Agreement.

(6) The 1st defendant also contended that he had filed a Suit for specific

performance of the Agreement of Sale. In the Written Statement

filed by the 1st defendant, it is only stated that the 2nd defendant is

helping the 1st defendant to carry out agricultural operation in the

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Suit property.

(7) The 2nd defendant has not filed any independent Written Statement

disputing the averments.

(8) The Suit was decreed by the Trial Court after holding that the

plaintiff has proved his title and that the defendants are liable to

handover possession to the plaintiff. The Trial Court also found that

the 1st defendant though pleaded an Agreement of Sale and

pendency of a Suit for specific performance, did not produce any

document to show the pendency of any Suit for specific performance

or the Agreement of Sale alleged to have been executed by the

plaintiff in favour of the 1st defendant. Since, the 1st defendant has

no right to be in possession of the property and the plaintiff was held

to be the owner, the Suit was decreed with cost. Aggrieved by the

same, the 2nd defendant in the Suit filed an Appeal in

AS.No.09/2016 before the Sub Court, Gobichettipalayam.

(9) It is to be noted that the Suit property was given only to the 1st

defendant as per the Written Statement filed by the 1st defendant.

Even though the 2nd defendant has no independent right, has

preferred the Appeal on the premise that he is in possession of the

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property. 1st defendant did not file any appeal.

(10) The Lower Appellate Court confirmed the judgment and decree of

the Trial Court on all issues. Aggrieved by the concurrent judgments

and decrees of the Courts below, the above Second Appeal is filed.

(11) Before this Court, the appellant has raised the following substantial

questions of law.

a.When the nature of transaction amounts to mortgage by deposit of title deeds, whether the Courts below justified in decreeing the Suit when it is clearly hit by Article 61 of the Limitation Act, 1963?

b.Whether the Courts below justified in decreeing the Suit for possession when it is even admitted by the plaintiff that defendant/appellant is having possession under usufructuary mortgage and when it is not proved by documents that the same is discharged by paying the amount to appellant?

c.Whether the Courts below right in decreeing the Suit when after the limitation period as per Article 61 of Limitation expires for redemption of mortgage and the relationship of mortgagor and mortgagee

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case to exist?

(12) Even in the plaint, it is stated that the Suit property was given to the

1st defendant orally for cultivation, in lieu of interest payable by the

plaintiff for the sum of Rs.50,000/- borrowed from the 1st defendant.

The Plea in the plaint cannot be treated as one admitting a mortgage

by deposit of Title Deeds. There cannot be an equitable mortgage

unless the place where the mortgage is executed is one of the town

specified by the State Government by notification.

(13) The appellant has not pleaded a mortgage by deposit of title deeds

before the Trial Court or at any point of time before the Trial Court.

Therefore this Court cannot permit the appellant to raise the

questions of law without any specific pleading. As regards, the 2nd

question of law, the plea of an alleged mortgage by deposit of title

deeds is contrary to the plea of usufructuary mortgage. The

Usufructuary mortgage can be created only by a registered mortgage

deed in the presence of attestors. Based on the plaintiff's plea of an

oral arrangement, the 2nd defendant/appellant cannot build a case of

an usufructuary mortgage and to contend before this Court for the

first time that the mortgage is not discharged by paying the amount

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agreed by the plaintiff himself.

(14) In view of the position that the Suit is not for redemption but for

recovery of possession, Article 61 of the Schedule 2 of the

Limitation Act has no application in the present case. The

defendants did not deny the title of plaintiff and hence did not plead

adverse possession. Hence, the Suit for recovery of possession is not

barred under any Article of Schedule to the Limitation Act. As

pointed out earlier, the 2nd defendant has not filed any Written

Statement before the Trial Court. The 1st defendant to whom the

property was given by the plaintiff, has not filed any Appeal as

against the judgment and decree of the Trial Court. However, the 2nd

defendant who is stated to be a person assisting the 1st defendant in

cultivating the lands, cannot maintain the above appeal as he has no

independent right or claim.

(15) For all the reasons stated above, this Court is unable to entertain the

Second Appeal. Hence, the Second Appeal is dismissed with cost

in confirming the judgment and decree made in AS.No.9/2016 dated

15.02.2019 by the learned Sub-Judge, Gobichettipalayam

confirming the judgment and decree made in O.S.No.64/2012 dated

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02.04.2016 by the District Munsif Court of Gobichettipalayam.

Consequently, connected Civil Miscellaneous Petition is closed.

28.02.2022 cda Internet : Yes

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S.S.SUNDAR, J.,

cda

To

1.The Sub Court, Gobichettipalayam

2.The District Munsif of Gobichettipalayam.

3.The Section Officer, VR Records, High Court, Chennai.

SA.No.141/2022

28.02.2022

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