Madras High Court
Gomathiammal vs K.Masanam Thevar(Died) on 1 July, 2024
2024:MHC:2499
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED:01.07.2024
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)NO.1000 OF 2008
1.Gomathiammal
2.K.Lakshmi :Appellants/Respondents/Defendants
.vs.
1.K.Masanam Thevar(Died)
2.M.Subbammal
3.Arumugam
4.Malaiyandi
5.Masanamuthu
6.Lakshmi
7.Kasirajan
8.Shunmuga Sundararaja
9.Thalavai
(Respondents 3 to 9 are brought on record as legal representatives
of the deceased first respondent as per order of this Court made in
M.P(MD)No.1 of 2009 in S.A(MD)No.1000 of 2008, dated
20.06.2003)
:Respondents/Appellants/Plaintiffs
https://www.mhc.tn.gov.in/judis
2
PRAYER: Second Appeal filed under Section 100 of Civil Procedure
Code against the judgment and decree made in A.S.No.47 of 2005,
dated 24.10.2005, on the file of the Subordinate Court, Tuticorin,
reversing the judgment and decree made in O.S.No.139 of 2001,
dated 03.01.2003, on the file of the District Munsif Court,
Srivaikundam
For Appellants :Mr.S.Ramesh
Respondent-1 :Died
For Respondent-2 :No appearance
For Respondents :Mr.T.Arivukumar
3 to 8 for Mr.R.Manimaran
JUDGMENT
*************
This Second Appeal is directed against the judgment and
decree made in A.S.No.47 of 2005, dated 24.10.2005, on the file of
the Subordinate Court, Tuticorin, reversing the judgment and
decree made in O.S.No.139 of 2001, dated 03.01.2003, on the file
of the District Munsif Court, Srivaikundam.
2.The unsuccessful defendants in a suit for bare injunction
filed by the respondents, are the appellants. The trial Court
dismissed the suit filed by the respondents and the First Appellate
Court reversed the findings of the trial Court and decreed the suit.
Aggrieved by the same, the defendants are before this Court.
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3,According to the respondents/Plaintiffs, the suit property
are agricultural lands belonging to the first plaintiff and he
mortgaged the suit property in favour of one Manickam @ Irulappa
Thevar, husband of the first defendant and father of the second
defendant, on 26.10.1980 and received the mortgage debt of Rs.
11,000/-. As per the terms of the Mortgage Deed, the first Plaintiff
was liable to pay interest at the rate of 12% per year. It was also
claimed by the plaintiffs that the mortgage was redeemed in the
year 1987 itself by paying the entire mortgage debt. However, the
title documents of the plaintiffs were not returned by the said
Irulappa Thevar on the ground that those documents were
misplaced. After some time, the said Irulappa Thevar died and
hence the plaintiffs could not get the Mortgage Discharge
document from him. Recently there was a misunderstanding
between the plaintiffs and defendants and therefore, the
defendants attempted to interfere with the peaceful possession of
the plaintiffs and the same necessitated filing of the suit for bare
injunction.
4.The first defendant filed a Written Statement and the same
was adopted by the second defendant. In the written statement, the
defendants denied the averments in the plaint as if the suit
poroperty mortgage was redeemed even during the lifetime of
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Irulappa Thevar. It was claimed by the defendants that on the date
of Mortgage itself, the plaintiffs executed an Yathathsu in favour of
Irulappa Thevar and as per the terms of the same, the Irulappa
Thevar had been enjoying the property in lieu of interest. After
his death, the defendants had been in possession and enjoyment. It
was also pleaded by the defendants that on 25.06.1982, there was
a sale agreement between plaintiffs and Irulappa Thevar
whereunder the plaintiffs have ageed to sell the suit property to
Irulappa Thevar for a sale consideration of Rs.24,255/- The
plaintiffs received a sum of Rs.8,755/- under the agreement apart
from the earlier mortgage debt of Rs.11,000/- There was only a
sum of Rs.4,500/- remained to be paid by the defendants to the
Plaintiffs. On these pleadings, the defendants prayed for the
dismissal of the suit.
5.Before the trial Court, the first plaintiff was examined as
P.W.1 and the mortgage deed executed by the first plaintiff in
favour of Irulappa Thevar was marked as Ex.A1. On behalf of the
defendants, the first defendant was examined as D.W.1. Yet another
witness was examined as D.W,2. On behalf of the defendants,
Yathasthu, dated 26.10.1980 executed by Plaintiffs in favour of
Irulappa Thevar was marked as Ex.B1.The sale agreement between
the plaintiffs and Irulappa Thevar was marked as Ex.B2.
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6.The trial Court, on appreciation of oral and documentary
evidence available on record, came to the conclusion that the
plaintiffs failed to prove their possession over the suit property by
producing any revenue documents and hence, dismissed the suit
for bare injunction. Aggrieved by the same, the
respondents/plaintiffs preferred an appeal in A.S.NO.47/2005, on
the file of Sub-Court, Thoothukudi. The plaintiffs filed an
application under Order 21 Rule 47 of Civil Procedure Code for
reception of additional evidence and produced the Adangal
extracts for the suit property for the Fasli years 1403 to 1410 and
the same were marked as Ex.A2 to Ex.A9. The patta stood in the
name of the plaintiffs were marked as Ex.A10 and Ex.A11. The tax
receipts paid by the plaintiffs were marked as Ex.A12 and Ex.A13.
The First Appellate Court on the basis of the revenue documents
produced by the Plaintiffs came to the conclusion that they proved
their possession over the suit property and granted a decree for
injunction. Aggrieved by the same, the defendants are before this
Court by way of this Second Appeal.
7.The learned counsel for the appellants submitted that the
defendants produced Ex.B1 Yathasthu executed by the plaintiffs in
favour of defendants granting possession over the suit property to
Irulappa Thevar with an understanding that he should enjoy the
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property in lieu of interest payable by them. The trial Court relied
on the same while dismissing the suit and the first appellate Court
failed to take into consideration Ex.B1 in proper perspective.
Hence the finding reached by the First Appellate Court with
regard to the possession of the party is vitiated by non-
consideration of material evidence available on record.
8.The first plainiff is the admitted owner of the suit property.
As per the mortgage deed marked as Ex.A1, the first plainfiff
mortgaged the suit property in favour of defendants’ predecessor
Irulappa Thevar. The recitals found in Ex.A1 would make it clear
that it is a simple mortgage and possession was not handed over to
the defendants. However, the defendants relied on Ex.B1, an
unregistered Yathasthu executed by the first plaintiff in favour of
Irulappa Thevar. It is the contention of the defendants that the
recitals found in Ex.B1 proved that the possession of the property
was deliered to Irulappa Thevar on the date of mortgage itself with
an understanding that he should enjoy the property in lieu of
interest payable on mortgage debt. Ex.B1 is in the nature of
usufructory mortgage and therefore, it requires registration.
Further the plainfiffs produced Ex.A1 registered mortgage deed
whereunder there is no recitals about handing over of possession
to the defendants. Both Ex.A1 and unregistered Yathasthu
https://www.mhc.tn.gov.in/judis
produced by the defendants are dated 26.10.1980. When both the
parties entered into a registered mortgage deed -Ex.A1, dated
26.10.1980, aboslutely there was no necessity for them to execute
an unregistered document handing over the possession of the suit
property to the first defendant. If really possession was delivered
on the date of mortgage itself with an understanding that Irulappa
Thevar should enjoy the property in lieu of interest, the parties
could have incorporated the same in the registered mortgage
deed.Therefore the execution of Ex.B1 by the first plaintiff in favour
of Irulappa Thevar is highly doubtful. Apart from the same, Ex.A2
to ExA9, the additional documents produced by the plaintiffs before
the First Appellate Court are Adangal Extracts for the suit
property relevant to the Fasli year 1403 to 1410 equivalent
English Calendar year 1993 to 2000.
It is settled law that in respect of agricultural lands entry in the
Adangal is the best evidence to prove the possession of the parties.
In the case on hand, the suit was filed in the year 2001. The
plainiffs produced the Adangal extract for the years 1993 to 2000
to estalish their continuous possession for nearly 8 years
immediately preceding the presentation of the suit.
9. In the light of ExA2 to Ex.A9 Adangal Extracts produced
by the plaintiffs, Ex.B1 an unregistered document relied on by the
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defendants pales into insignificance. The first Appellate Court by
taking into consideration the oral and documentary evidence on
record, rightly came to the conclusion that the plaintiffs proved
their lawful possession and hence, he was entitled for decree of
injunction and this Court finds no reason to interfere with the
factual findings reached by the First Appellate Court.
10.For the reasons aforesaid, the Second Appeal fails and the
same stands dismissed. No costs.
01.07.2024
Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Sub-Judge,
Thoothukudi.
2.The District Munsif,
Srivaikundam.
3.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.SOUNTHAR, J.
vsn
JUDGMENT MADE IN
01.07.2024
https://www.mhc.tn.gov.in/judis
