Madras High Court
Govindarajan vs Kalaiselvi on 13 June, 2022
S.A.No.151 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.151 of 2021
and
C.M.P.No.3251 of 2021
Govindarajan ...Plaintiff/Appellant/Appellant
Vs.
Kalaiselvi ...Defendant/Respondent/Respondent
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 05.07.2019 in
A.S.No.57 of 2016 on the file of the learned Subordinate Judge,
Chidambaram, confirming the Judgment and Decree dated 28.07.2015
in O.S.No.62 of 2012 on the file of the learned Additional District
Munsif, Chidambaram.
1/11
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S.A.No.151 of 2021
For Appellant : Ms.R. Meenal
For Respondent : Served – No appearance
JUDGMENT
The unsuccessful plaintiff before the Courts below is the
appellant before this Court. The parties are referred to in the same
rank and array as before the trial Court.
2.The facts in brief which are necessary for disposing of the
above Second Appeal are as follows:
The plaintiff had filed O.S.No.62 of 2012 on the file of the
learned Additional District Munsif, Chidambaram, for a declaration of
his title to the suit property and for a consequential injunction
restraining the defendant, her men, agents and persons claiming under
her from in any manner interfering with the plaintiff's peaceful
possession and enjoyment of the property.
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S.A.No.151 of 2021
3.It is the case of the plaintiff that the property situate on the
Northern end of R.S.No.131/2 measuring an extent of 1.33 cents out
of 2.24 Cents at Enna Nagaram Village, Chidamabaram Taluk, which
is the suit property belonged to Kaliyamoorthy Padayachi and
Kamatchi Ammal. On 04.05.1959, the aforesaid persons had executed
a registered usufructuary mortgage deed in favour of the plaintiff's
father Manicka Nattar, who was put in possession of the property.
The period for redemption of mortgage is fixed as three years. Once
again on 07.09.1961, they had executed another usufructuary
mortgage in favour of Manicka Nattar in respect of the suit property.
Once again, the period of redemption is fixed as three years.
4.On 21.09.1967, the said Kaliyamoorthy Padayachi and
Kamatchi Ammal had sold the suit property to one Amsathammal
under a registered Sale Deed. As per the terms of the Deed,
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S.A.No.151 of 2021
Amsathammal was directed to discharge the mortgages in favour of
Manicka Nattar and obtain possession. However, Amsathammal did
not redeem the mortgage and get possession of the property till her
death on 19.06.1991. The defendant is the daughter of Amsathammal.
Meanwhile, Manicka Nattar had leased out the suit property to one
Venkatraman through whom he enjoyed the property. After the death
of Manicka Nattar, the plaintiff is in possession of the suit property.
On 17.06.1981, he had leased out the suit property to one
Balasubramanian who is the son of the previous tenant Venkatraman,
who continues to be in possession and who is paying the rents to the
plaintiff.
5.The plaintiff would submit that he became the absolute owner
of the property since neither Kaliyamoorthy Padayachi and Kamatchi
Ammal nor Amsathammal had taken steps to redeem the mortgage, so
also the defendant. He would contend that since the time for
redeeming the mortgage expired in 1992 and 1994, respectively, and
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S.A.No.151 of 2021
as the same has not been redeemed the plaintiff is entitled for
declaration as prayed for. Further, since he is in possession of the
property through his lessee his possession has to be protected.
6.The defendant had resisted the suit inter alia contending that
the defendant is in possession and enjoyment of the property. One
Balasubramanian, brother of Kamatchi has attempted to disturb their
possession constraining her to file the suit O.S.No.279 of 2009 on the
file of the learned Principal District Munsif, Chidambaram. The suit
was decreed. The said Balasubramanian has challenged the same in
A.S.No.14 of 2012 before the learned Subordinate Judge,
Chidambaram, which also ended against him. In the said suit,
Balasubramanian had claimed as a tenant under the plaintiff. Totally
suppressing these proceedings, the plaintiff has come forward with the
above suit. She would submit that the suit as framed is not
maintainable and the same is a vexatious litigation inasmuch as the
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S.A.No.151 of 2021
plaintiff was seeking to re-agitate an issue which has already been
decided against the plaintiff.
7.The learned Additional District Munsif, Chidambaram, had
framed the following issues:
“1.Whether the plaintiff is entitled for the relief of
declaration of title to the suit property?
2.Whether the plaintiff is entitled for the relief of
permanent injunction?
3.Whether the suit is barred by principle of res
judicata?
4.Whether the plaintiff is estopped in Law from
contesting this suit?
5.To what other relief the plaintiff is entitled for?”
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S.A.No.151 of 2021
8.The learned Additional District Munsif had held that the
plaintiff was not in possession and enjoyment of the suit property and
it was the defendant who is in possession of the same and her
possession had been confirmed by the Judgment and Decree in
O.S.No.279 of 2009 on the file of the learned Principal District
Munsif, Chidambaram. The learned Judge had also relied upon the
evidence of C.W.1, the Village Administrative Officer, Enna
Nagaram Village, Chidamabaram Taluk, and Ex.C.1 to Ex.C.5 to hold
that the property has always been in the possession and enjoyment of
Amsathammal from the date of her purchase. The learned Judge has
held that the plaintiff has failed to prove his title to the properties and
also his possession and dismissed the suit. The appeal filed by the
plaintiff in A.S.No.57 of 2016 on the file of the learned Subordinate
Judge, Chidambaram, also ended against him. Challenging the
concurrent Judgment and Decree, the plaintiff is before this Court.
9.Though the defendant has been served there was no
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S.A.No.151 of 2021
representation either in person or through pleader.
10.Heard the learned counsel for the plaintiff and perused the
papers.
11.The plaintiff has come to Court seeking a declaration of his
title to the suit property on the basis that he is in possession of the
property under a usufructuary mortgage executed by one
Kaliyamoorthy Padayachi and Kamatchi Ammal in favour of his father
Manicka Nattar. The plaintiff's case is that the mortgage had not been
redeemed and since he continues to be in possession he is entitled to a
declaration.
12.However, the defendant has contested the above claim by
stating that it is she who is in possession of the property and that her
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S.A.No.151 of 2021
possession has been upheld in an earlier proceedings in O.S.No.279 of
2009 on the file of the learned Principal District Munsif,
Chidambaram, which was confirmed by the Judgment and Decree in
A.S.No.14 of 2012 by the learned Subordinate Judge, Chidambaram.
She had also produced the documents to show her possession and
enjoyment of the property which have been marked as Court
documents in Ex.C.1 to Ex.C.5. The Courts below have held that the
property is in the possession of Amsathammal from the date of her
purchase in the year 1967 under Ex.A.3.
13.Therefore, the contention of the plaintiff that he is in
possession of the property and that since the usufructuary mortgage
had not been redeemed he is entitled to a declaration of tile therefore
fails. I see no reason to disagree with the concurrent findings of the
Courts below. That apart, no Substantial Question of Law has been
made out by the appellant.
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S.A.No.151 of 2021
Accordingly, this Second Appeal is dismissed. There shall be
no order as to costs. Consequently, connected Miscellaneous Petition
is closed.
13.06.2021
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
1.The Subordinate Judge,
Chidambaram.
2.The Additional District Munsif,
Chidambaram.
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S.A.No.151 of 2021
P.T. ASHA, J,
mps
S.A.No.151 of 2021
and
C.M.P.No.3251 of 2021
13.06.2022
https://www.mhc.tn.gov.in/judis
