Madras High Court
Pushpam And Ors. vs K.M. Meeran And Ors. on 22 October, 2003
Equivalent citations: (2003)3MLJ820
JUDGMENT M. Thanikachalam, J.
1. The unsuccessful plaintiffs, as respondents before the first appellate Court in A.S. No. 194/1986, are the appellants.
2. Thiru A.A. Paramasivam as plaintiff had filed a suit, for declaration of his title to the suit property, for possession and for mesne profits or in the alternative for partition of his 35/56th share, on the grounds that the suit property originally belonged to one Kader Mohideen Rowther, who died leaving his wife by name, Rosammal and two sons by name Diwan Mohideen and K. Ponnu, that Diwan Mohideen died leaving his wife Zeenath Beevi and each one was entitled to 1/3 share in the suit property, that the plaintiff has filed O.S. No. 227/65 for recovery of money and obtained a decree on 4.8.1965, that in order to realise the decree amount, filing E.P. No. 796/66, attached the property on 24.11.1966, that he bought the property in the court auction sale held on 28.8.1974, after obtaining the leave of the Court, that in pursuance of the sale certificate, he took delivery of possession in E.A. No. 664/75, after the removal of obstruction created by defendants 1 to 5, that the second defendant on behalf of the first defendant agreed to be the tenant of the premises, that thereafter, he committed wilful default and therefore, eviction petition was filed, which was dismissed with an observation that there is a dispute regarding title and the same has to be decided by a civil Court and that he was constrained to file a suit, for the above said reliefs.
3. The defendants 1 to 8, who are the respondents herein, opposed the claim of the plaintiff contending that Kader Mohideen Rowther - the original owner had executed an othi on 21.5.1934 for Rs.1000/- in favour of one Amir Basha Rowther in respect of the suit property, that the said Amir Basha Rowther assigned the othi in favour of the 8th defendant's father by name Alla Pitchai Rowther, that after the death of the original owner, his son Ponnu executed a mortgage deed on 25.8.1949 for Rs. 1,700/- in favour of Alla Pitchai Rowther, in respect of his share, that Alla Pitchai Rowther had filed O.S. No. 653/66 and obtained a preliminary decree on 17.12.1966, that the 8th defendant purchased 1/8th share from Kamala Beevi under a sale deed dated 15.2.1968, that he also obtained another sale deed from Kannammal Beevi with respect to her on 10.11.1968, that he had purchased ¬ th share from Zeenath Beevi on 15.2.1968, that the 8th defendant's minor brother obtained a sale deed from Jameela Beevi on 10.4.1967 with regard to her 1/8th share, in addition to a release deed from his brothers, that in view of the above sales, the 8th defendant is entitled to 5/8th share in the suit property, that the defendants are in possession and enjoyment of the suit property in their own right, adverse to the real owner, thereby they have not only perfected title to the suit property by adverse possession, but also acquired title under the above said sale deeds regarding the suit properties, in which the plaintiff is neither entitled to declaration nor possession nor any other reliefs. On the basis of the above defence, inter alia, the contesting defendants prayed for the dismissal of the suit.
4. The learned Principal Subordinate Judge, Periakulam framing as many as 11 issues, tried the case. In the trial, on behalf of the plaintiff, 20 documents were exhibited, seeking support from the oral evidence of P.Ws.1 and 2. To nullify the effect of the above evidence, if any, and to make out a case as pleaded in their written statement, on behalf of the contesting defendants, 47 documents were exhibited, in addition to the examination of the 6th defendant as D.W.1, 8th defendant as D.W.3, apart from three other witnesses as D.Ws.2, 4 & 5. The learned Subordinate Judge, Periakulam, while evaluating the above materials, weighing the same in the proper scale and also applying the provisions of law as to the extent required, came to the conclusion that the plaintiff had established his title to the suit property, that the contesting defendants though had purchased only a portion of the suit property, not entitled to claim right on the basis of the sale deeds, in view of the fact that their sale deeds are affected by Section 64 of C.P.C., as the properties were attached in the execution proceedings on 24.11.1966, that the defendants who were in possession of the property originally as mortgagees, are not entitled to claim adverse possession, since the suit was filed by the plaintiff within 12 years from the date of his acquisition of the property under the court sale, in addition to the fact that the suit was also filed within 12 years from the date permissible for foreclosure of the mortgage and therefore, the question of adverse possession would not arise for consideration. Thus, the learned Subordinate Judge, considering the case of the plaintiff positively, as well as testing the case of the plaintiff from the defence side also, came to an irresistible conclusion, that the defence should fail and the plaintiff's case should succeed. In this view, he granted a decree, declaring the plaintiff's title ordering possession, directing the mesne profits enquiry to be conducted under Order XXI Rule 12 C.P.C. at later point of time, on 29.11.1985.
5. The aggrieved defendants viz., 6 to 9 questioned the trial Court's judgment in O.S. No. 151/82 before the I Additional District Judge, Madurai in A.S. No. 194/96. The learned Additional District Judge, considering the case and counter case, unable to agree with the findings of the trial Court, reversed the findings. In this view, accepting the defence of the contesting respondents, allowed the appeal, set aside the decree and judgment of the trial Court, thereby ordering the dismissal of the suit and giving cause of auction for the plaintiff's Lrs, to file this appeal, as aforementioned.
6. This Court, while admitting the second appeal formulated the following substantial questions of law, for consideration.
1. Where a party claims title to a property on the basis of a private sale, subsequent to a valid attachment made by the plaintiff in a suit, whether that party putting forth right to the property on the basis of a private sale, can derive valid title, contrary to Section 64 of the Code of Civil Procedure?
2. Where a defendant claims right to property without producing the original assignment in deference to the claim put forth by the plaintiff, is it the duty of the plaintiff to produce the original assignment deed?
7. The learned counsel for the appellants submitted that the first appellate Court failed to note the effect of the attachment, as contemplated under Section 64 of the Code of Civil Procedure, thereby landed in rendering a perverse finding, which requires setting aside. It is the further contention of the learned counsel for the appellants, that the first appellate Court has not properly appreciated the recitals in the sale deeds, relied on by the contesting defendants, wherein there are intrinsic evidence for the non existence of the mortgage. Therefore, according to the learned counsel for the appellants, the first appellate Court erred in concluding that the contesting defendants were in possession of the property in pursuance of the mortgage, which could not be accepted.
8. On the other hand, the learned counsel for the contesting respondents would contend, that there is no substantial question of law, since the first appellate Court has given a clear finding, based on documentary as well as oral evidence, and that the 8th defendant and others have purchased the property without knowing the attachment if any, and therefore, they should be construed as owners and that there was no actual delivery of the possession of the property, which should follow the possession is not disturbed or interrupted at any point of time, which should give title to the 8th defendant, by adverse possession also. He would further contend, that the contesting defendants are bona fide purchasers and their right should be protected. At the outset, I should say, the claim of the bona fide purchaser, is not pleaded anywhere and therefore, this defence based on facts, cannot be taken without plea, at the stage of the second appeal and this plea is only taken for rejection.
9. Heard the learned counsel for the appellants, Mr. A. Shanmugavel and the learned counsel for the respondents, Mr. P. Chidambara Subramanian.
10. The defendants 6 to 9, who are respondents 1 to 4 in this second appeal, aggrieved by some of the findings of the first appellate Court, have filed the cross objection to set aside the adverse findings against them, regarding the confirmation of the attachment, its subsistence at the time of the sales in their favour, questioning the finding regarding Ex.A5 and the binding nature of the execution proceedings against the LRs of the original owner of the suit property, thereby praying to allow the cross appeal, in order set aside the adverse observation passed in A.S. No. 194 of 1986, by the first Additional District Judge, against them.
11. The undisputed facts in this case are, that the suit property originally belonged to one Kader Mohideen Rowther, whose wife is Rosammal and their sons are Diwan Mohideen and Ponnu, that Kader Mohindeen Rowther had executed an othi on 21.5.1934 in favour of Amir Basha Rowther in respect of the suit property under Ex.B2, that after the death of Kader Mohideen Rowther, his son executed a mortgage deed in favour of Alla Pitchai Rowther, the father of the 8th defendant and that Amir Basha Rowther had assigned the othi in favour of the subsequent mortgagee viz., Alla Pitchai Rowther on 27.10.1953 under Ex.B3. It is also more or less an admitted fact and evidenced by Ex.B9 that Alla Pitchai Rowther had filed O.S. No. 653/66, obtained a preliminary decree on 13.10.1966, as evidenced by Ex.B10. It seems, thereafter, the preliminary decree holder had not persuaded further, to obtain a final decree, which is mandatory for its execution and finality.
12. The appellants claim title to the suit property on the basis of a sale certificate i.e. Ex.A4, issued in E.P. No. 106/74, in pursuance of the court auction sale held on 28.8.1974. On the other hand, the defence appears to be two fold viz., the contesting defendants are entitled to the suit property by virtue of the sale deeds and the second defence is that they have prescribed title to the suit property by adverse possession. In order to appreciate the facts in issue, and to reach the just conclusion, we have to see the history of the cases, starting from the year 1965.
13. As submitted by the learned counsel for the appellants and as seen from the records, the original plaintiff by name Paramasivam filed a suit in O.S. No. 227/1965, and obtained a money decree on 4.8.1965 against Ponnu and others. It is the further case of the appellants that the plaintiff in that suit filed E.P. No. 796/66 and attached the suit property on 24.11.1966. When the decree holder in O.S. No. 227/65 attempted to realise the decree amount, by bringing the property for sale, he failed in his first attempt and E.P. was dismissed, continuing the attachment. Thereafter the plaintiff filed E.P. No. 106/74 and brought the property, which was already attached, for sale and in the auction held on 28.8.1974, obtaining the leave of the Court, he purchased the property and in pursuance of the same, sale certificate was also issued in his favour. The above facts submitted by the learned counsel for the appellants are not contradicted and they are also supported by Exs.A2, 3 and 4. It is the further case of the appellants, that in pursuance of the sale certificate, E.A. No. 668/75 was filed, for delivery of possession and possession was also taken through Court on 14.1.1976, after the removal of obstruction. The learned counsel for the appellants further submits, that the second defendant, who was in possession of the property at the time of delivery, also attested the delivery warrant Ex.A5 and the delivery was recorded by the Court on 23.1.1976. Regarding these facts, the findings rendered by the Courts below are not challenged before me. Therefore, I should conclude that in pursuance of the decree obtained by the original plaintiff in O.S. No. 227/1965, the suit property was attached and later on, brought for sale, sold in the court auction and the plaintiff became the owner also. This is the finding of the trial Court, which was not accepted by the first appellate Court to some extent. The learned counsel for the appellants, submits that the sales in favour of the contesting defendants were all subsequent to the valid attachment of the property on 24.11.1966 and therefore, even assuming that there were sale transactions, in respect of the suit property, the same would not convey any valid title, overriding the effect of Section 64 C.P.C., which prohibits private transfer or which says that private transfers are void, if the property was conveyed during the subsistence of the attachment.
14. The fact that the suit property was attached on 24.11.1966, is not challenged before me, though it appears there was some abortive attempt before the courts below. Till the property was sold in the court auction, ie. On 28.8.1974, there was valid attachment. Admittedly, even as per the case of the contesting defendants, they have purchased the property from the heirs of original owner viz., Kader Mohideen Rowther, under Exs.B11 to B14 as well as got release deed under Ex.B15. Ex.B11 is dated 10.4.1967, Ex.B12 is dated 15.2.1968, Ex.B13 is dated 10.11.1968, Ex.B.14 is dated 15.2.1968 and Ex.B15 is dated 28.4.1970, thereby showing all these transactions, came into being only after the attachment on 24.11.1966 and it was in subsistence till the property was sold in the court auction on 28.8.1974. In this context, we have to see what is the effect of this kind of transaction.
15. Section 64 of the Code of Civil Procedure says, private alienation of property, after attachment would be void and the Section reads:
(1) Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.
16. Our case does not come within the meaning of Section 64(2) and it is not the submission also before me. As concurrently held by the courts below, which cannot be assailed, the property was attached on 24.11.1966 and only thereafter, the contesting defendants, appeared to have purchased some portion of the suit property, when the property was in the possession of the original owner, and the same was the subject matter of the valid attachment, which was subsisting. Therefore, the sale, regarding the attached property, should be construed as void, since the plaintiff's claim is enforceable under the attachment. In support of the above, the learned counsel for the appellants submitted some of the decisions of the Supreme Court.
17. In S.G. Films Exchange v. Brijnath Singhji , the Apex Court of this land had laid down the law, regarding the transaction during the lease under Section 52 of the Transfer of Property Act, as well as the effect of Section 64 of Civil Procedure Code, observing that the lease of theatre executed in favour of a company, during the attachment, was stuck by the doctrine of lis pendens and also by provisions of Section 64 of the Civil Procedure Code. The same position was reiterated in Om Prakash Garg v. Ganga Sahai holding that during the subsistence of the attachment if any, transaction such as lease was effected, the same has to be affected by Section 64 of the Civil Procedure Code.
18. In Nancy John Lyndon v. Prabhati Lal , the Apex Court once again had the occasion to consider the effect of Section 64 C.P.C. and in the said decision, it is held -
"where the sale by the judgment-debtor of the property attached in execution was effected during the subsistence of the attachment, would be void".
19. In Vijayalakshmi Leather Industries (P) Ltd. v. K. Narayanan , a Division Bench of this Court had the occasion to consider the effect of Order XXI Rule 98 and 102 C.P.C., regarding the right of the transferee from the judgment debtor pending the case, though the transferee of the transferee of the judgment-debtor was not a party to the proceedings and he was not impleaded as a party. The Bench ruled:
"Though Order 21, Rule 98 and 102 refer to the 'transferee from the judgment-debtor' the term "transferee from the judgment-debtor" would also include the transferee of a 'transferee from the judgment-debtor'. If the words "transferee of the judgment-debtor" mentioned in these Rules are to be interpreted to exclude transferee of the transferee from judgment-debtor, then the purpose of the restriction of transfer pendente lite and also the purpose of making certain provisions of CPC inapplicable to such transfer will become redundant. It is the duty of the Court to give full effect to the meaning of every word for the purpose for which the statute is enacted. In fact Rule 98 and 102 of Order 21, CPC must be read along with Section 52 of the Transfer of Property Act. In view of the statutory bar under S.52 of the T.P. Act any transfer made by any of the party to the proceeding pendente lite is non-est in the eye of law because the transferee will be entitled for the right of his transferor alone and nothing more. It could not be said that since transferee of 'transferee of the judgment-debtor' was not a party to the proceeding and he was not impleaded as a party the decree is not binding on him. In such circumstance, it is not open to him to claim that he is a bona fide purchaser without notice of the litigation. The encumbrance certificate may not reveal the pending litigation. However, it could not be said therefrom that he is a bona fide purchaser."
20. Here also, a feeble attempt was made on behalf of the contesting respondents, that in the previous suit, all the heirs of Kader Mohideen Rowther were not the parties and therefore, the attachment and other connected proceedings could not have the valid effect. Admittedly, as held by the courts below also, in the execution proceedings, the Lrs of the original owner were brought on record and it should be held, the said proceedings were binding on them, as well against the person who claims under them. While considering the effect of Section 64 C.P.C., the main question that should be considered is, whether the property which was the subject of the transfer, was under valid attachment or not? The concurrent findings of the courts below is that there was a valid attachment, not questioned before me, by the learned counsel for the contesting respondents, though cross objections were filed to assail the said finding. Once it is established that there was a valid attachment, then as aforementioned, any private transfer or delivery of the property attached shall be void, against all the claims enforceable under the attachment.
21. In this view, it should be held, unhesitatingly that under Exs.B11 to B.15, the defendants have not acquired any right in the suit property, whether it is in respect of a portion or otherwise and therefore, the trial Court was right in concluding, that the contesting defendants are not entitled to oppose the claim of the plaintiff, on the above said documents. But, unfortunately, the first appellate Court took a different view on the basis of the actual delivery of the property observing that there was no actual delivery, which seems to be incorrect and the reasons would follow.
22. The plaintiff, who had come to the Court claiming certain rights over the suit property, alone is bound to prove his case and this proposition is not in dispute. According to the deceased plaintiff, he had filed a suit against Kader Mohideen Rowther's heirs, in O.S. No. 227/65 and obtained a money decree on 4.8.1965. In order to realise the decree debt, the property was attached on 24.11.1966 and the same was brought for sale and in the auction held on 28.8.1974, the plaintiff after obtaining the leave of the Court, purchased the property, which could be seen from Ex.A4. After the issue of the sale certificate, according to the appellants, the deceased first plaintiff obtained possession of the suit property, through Court on 14.1.1976. To prove the delivery, aid is sought from Ex.A5 and in the execution proceedings, all the heirs of the deceased Kader Mohideen Rowther were parties. It is the further case of the appellants, that the second defendant, who was present at the time of the delivery of possession on 14.1.1976, attested the delivery warrant. This finding of fact, is also recorded by the courts below concurrently and therefore, it should be held that the delivery of the property to the plaintiff was known to contesting defendants also. It seems after the delivery, there was some lease arrangement between the parties, resulting R.C.O.P, where the contesting respondents disputed the title of the plaintiff, thereby compelling him to file the present suit. I do not find any reason, much less valid reason, to ignore the attachment or the subsequent execution proceedings, in which the property was purchased by the deceased plaintiff. Therefore, there is no difficulty in concluding, as per the sale certificate, the deceased plaintiff became the owner and the same is succeeded by the present appellants, after the demise of the original plaintiff. The suit is also filed within 12 years from the date of delivery and therefore, it should be held in the ordinary course, the same is in time. Therefore, if at all, the contesting defendants want to dispel the case of the plaintiff regarding title, it is for them to prove how they have acquired title to the suit property or how the right acquired by the plaintiff was extinguished, under the process known to law. Only in this context, the defendants have claimed adverse possession, as well questioning the delivery of possession also.
23. The undisputable Court records would reveal, that on 14.1.1976, the plaintiff took delivery of possession of the suit property, through Court and the Amin statement also was attested by Rajappa, the second respondent. It seems, at that time, there was some business in the suit property and there is no evidence, that those persons were actually removed and the business materials were vacated from the premises. In this view alone, it appears the first appellate Court took the stand, that there was no actual delivery of possession and if at all the delivery must be a symbolical one.
24. The suit property is in the possession of the contesting defendants. Their original possession was that of a mortgagee as well as assigned mortgagee (othi) holder. Till the period of limitation for the redemption of the mortgage, their possession could not be labelled, as adverse possession, the admitted fact being, they were enjoying the property only as mortgagee(s) or assigned mortgagee. As per the findings of the courts below, the right of redemption came to an end on 31.12.1970. Therefore, if at all, only from 31.12.1970, the possession of the contesting defendants could be construed as adverse possession, as understood under the law. The suit was filed on 6.9.1982 i.e. within 12 years and therefore the question of adverse possession will not validly arise for consideration. Both the courts below have concurrently come to the conclusion, that the claim of the contesting defendants, that they have acquired title to the suit property by adverse possession, is not acceptable and maintainable, which should be accepted. The learned counsel for the contesting respondents also unable to satisfy this Court, how the contesting respondents are entitled to claim adverse possession, though the finding negativing the adverse possession was challenged, in the cross objection. Even assuming, as rightly contended by the learned counsel for the appellants, Mr. A. Shanmugavel, the prior possession also could be taken as adverse possession, there was an interruption at the time of the delivery, thereby breaking the backbone of the adverse possession viz. continuity, and it should follow the question of acquiring title would not arise for consideration in this case acceptably. Whether it is actual delivery or symbolical delivery, there was delivery of possession on 14.1.1976, which is not only a proved fact, but also an admitted fact. Therefore, we have to see, what is the effect of this delivery of possession, even assuming it is a symbolical delivery, as held by the first appellate Court.
25. In Satyanarayana v. Narasimha [(1966) 1 SCR 628], the Apex Court has ruled, by the delivery of symbolical possession, the adverse possession of the defendant was interrupted and therefore, time had to commence to run from that date alone and not previous to that date, though the defendant was in possession of the property. In the case involved in the above decision, it appears there was a symbolical delivery on 6.11.1939. From the said date, within 12 years, the suit was filed. Considering the above facts as well as the effect of Article 144 of the Limitation Act, the Apex Court has ruled in the above case as follows:
"By the delivery of symbolical possession under the order of November 6, 1939, the adverse possession of the defendants was interrupted. Time has, therefore, to commence to run from that date and so considered, the suit having been brought within twelve years of that date, it was not barred under that article. "
In this view, the adverse possession claimed by the party has been negatived. Here also, as aforementioned, though the contesting defendants and their predecessors in interest were in possession of the property, assuming that the right of redemption already expired, originally as mortgagee and after the expiry of the period of redemption, without any right, which was interrupted by the symbolical delivery on 14.1.1976. Therefore, applying the above principle, I have no hesitation to say, positively that the claim of the defendants, that they have prescribed title to the suit property by adverse possession has no legs to stand and the converse effect is, that the suit is not barred by limitation or in other words, the right of the plaintiff is not extinguished by the lapse of time.
26. This Court, in Jagajothi v. Gopalaswami , following the above principle, took the same view viz., symbolical delivery though not correct in law, thus interrupt adverse possession against purchaser.
27. In Jayagopal v. Gulab Chand , a full bench of Orissa High Court took the view, even symbolical possession, would terminate the continuity of adverse possession. It is held that -
"So far as delivery of possession against the judgment-debtor or any person in occupation on his behalf is concerned, there is no distinction between the two modes of delivery of possession. Law is well settled that as against the judgment debtor symbolical delivery of possession amounts to actual delivery of possession."
It is also further ruled that-
"By obtaining delivery of such symbolical possession the prior adverse possession of the judgment-debtor comes to an end. The decree holder who obtains such symbolical delivery of possession against the judgment debtor in execution of a decree can file a suit for recovery of possession within twelve years of the date of delivery of symbolical possession."
28. In the same way, here the deceased plaintiff, who obtained delivery of possession, whether it is symbolical or actual, could file a suit within 12 years, against the person, who claims interest under the judgment debtor. In this view also, even without going into the merits of the case, viz., whether there was actual delivery or not, accepting the finding of the first appellate Court also, as such there was a symbolical delivery, there would be no difficulty, in concluding that the suit is well within the time and the defendants had not acquired title to the suit property, by adverse possession, since admittedly whatever may be the period of possession, that is interrupted and the suit came to be filed, within the period of limitation.
29. The learned counsel for the appellant submits that the original othi created by Kader Mohideen Rowther in favour of Amir Basha Rowther under B2, must have been discharged. For the above said submission, he sought the aid from the recitals contained in the sale deeds of the defendants, as well as the non production of the original title deed. The fact that on 21.5.1934, Kader Mohideen Rowther had executed an othi in favour of Amir Basha Rowther vide Ex.B2, not in dispute. It is also not the case of the appellants, that Ex.B2 has not come into operation. The mortgagee under Ex.B.2, assigned the same in favour of the father of the 8th defendant on 27.1.1953 under the original of Ex.B3. In addition, it seems, a simple mortgage deed was obtained. Though a suit was filed for the recovery of the mortgage amount and a preliminary decree was obtained, no step has been taken admittedly, for final decree proceedings and admittedly property was not brought for sale. Under Exs.B11 to B.15, the contesting defendants claimed title, to the suit property, whether it is to the entire extent or a portion. In all the documents, as correctly submitted by the learned counsel for the appellants, it is clearly stated, that there was no encumbrance over the suit property. Therefore, according to the learned counsel for the appellants, the mortgage, whether it is an othi or a simple mortgage, might have been discharged, even before the alleged sale deeds and that is why, specific recitals were introduced in the sale transactions, indicating that the property is free from encumbrance. This argument cannot be lightly brushed aside. If really the mortgage was subsisting or not discharged, then the contesting defendants should have included the same in the sale transaction, at least confirming part of the sale consideration. We find no reference. But, the first appellate Court attempted to say that the mortgage should have been discharged, only in pursuance of the sale deed, which is not the case of the contesting defendants. As submitted by the learned counsel for the appellants, the mortgage, Ex.B2, might have been discharged, on the basis of the assignment under the original of Ex.B3. The original assignment deed was not filed. The original assignment deed must be with the contesting defendants. No explanation is forthcoming, acceptably also, for its non production. In a case of mortgage and assignment, the original document woulds play key role, to find out whether the mortgage was discharged or not. There may be an endorsement of discharge in the assignment deed and that could be seen only by the production of the original document. If that is suppressed and copy of the mortgage or assignment deed is produced, the other party, as well as the Court, are deprived of knowing the actual things. In this context, we have to see, what the law says.
30. The learned counsel for the appellants submits that for the non production of the original made over document viz., the original of Ex.B3, adverse inference has to be drawn, as such secondary evidence cannot be admitted. In this view also, it should be held, because of the discharge, the original is not produced and therefore, it is not open to the defendants, to claim that they were in possession and enjoyment of the suit property as mortgagee or assigned mortgagee, for some time and thereafter as title holder. The first appellate Court having come to the conclusion, that the attachment is valid and that the defendants have not prescribed title to the suit property by adverse possession, erred in coming to the conclusion that the contesting defendants have acquired title to the suit property under some other method. A person could acquire title to a property by his long and continuous possession or by purchase or by exchange or could have acquired title to the suit property under some testament known to law. As seen from the written statement of the contesting defendants, they claimed title to the suit property by adverse possession, as well as under certain sale deeds alone. For the reasons aforementioned, the sales in favour of the contesting defendants are, hit by Section 64 and in this view, they are not entitled to claim title. The claim of adverse possession also negatived and that finding could not be disturbed. The admitted position being so, it is unfortunate that the first appellate Court had come to a conclusion that since Kader Mohideen Rowther or his heirs or the plaintiff having not discharged the mortgage, the 8th defendant had acquired title, which is unknown to law. If, after the expiry of the prescribed period of redemption, there was a continuous possession, with the contesting defendants, especially with the 8th defendant, then the first appellate Court would be justified, in concluding that the 8th defendant had prescribed title by adverse possession. But, as seen from paragraph 15 of the judgment, the first appellate Court has took the view, that the contesting defendants have not prescribed title to the suit property, but at the same time, without mentioning under what category, the 8th defendant had acquired title to the suit property, simply said that the 8th defendant is the owner of the suit property, which could not be recognised under law. In this view, as rightly pointed out by the learned counsel for the appellants, the judgment rendered by the first appellate Court, seems to be perverse in nature and the interference of this Court is an unavoidable one.
31. As held by the Apex Court and as reiterated by this Court in Gengudurai Naicker v. Chockalingam (2003 I MLJ 206), the finding of fact even if erroneous, will generally not be disturbed, but where it is found that the findings stand vitiated on wrong test and on the basis of the assumptions of perversity involved therein, the High Court will be within its jurisdiction to deal with the issue.
32. The first appellate Court, more or less, concurred with the findings of the trial Court, on major issues and negatived the claim of the 8th defendant. But unfortunately, not stopping there, it went to the extent of saying, that the 8th defendant has acquired title to the suit property, in addition to the ground, the plaintiff's predecessors in title have failed to file a suit for redemption, in order to recover possession of the property. In this case, the question of filing the suit for redemption, would not arise for consideration, the fact being that the plaintiff claimed title to the suit property, in pursuance of the court auction sale, which is admitted and proved. If any encumbrance, such as mortgage or othi is subsisting, if it is within time, the party can work out the same and on the ground, that the original mortgagor or his heirs have failed to file a suit for redemption, title could not be vested in favour of the mortgagee, as erroneously held by the first appellate Court. In this view, the perverse finding of the first appellate Court, requires correction.
34. For the foregoing reasons, I am of the considered opinion, that the first appellate Court unnecessarily disturbed the findings of the trial Court, which are well reasoned, supported by legal principles and therefore, it requires restoration and for that purpose, the appeal has to be allowed, setting aside the findings of the first appellate Court, answering the points accordingly. Further for the reasons assigned supra, the findings of the Ist Appellate Court could not be set aside, as claimed in the cross objection.
In the result, the second appeal is allowed setting aside the decree and judgment of the first appellate Court in A.S. No. 194/1996 and the decree and judgment of the trial Court in O.S.151 of 1982 is restored, with costs throughout. Cross objection is dismissed.