John Bosco (Died) vs Varghese (Died) on 30 January, 2023

[Cites 16, Cited by 0]

Madras High Court

John Bosco (Died) vs Varghese (Died) on 30 January, 2023

2.The plaintiff had filed O.S.No.490 of 1999 on the file of the 2/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 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 3/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 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 4/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 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 5/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 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 protecting the possession of the defendant. The plaintiff had filed Crl.R.C.No.812 of 1998 before the High Court and the same was also dismissed with an observation that the plaintiff has only taken symbolic possession of the property in O.S.No.242 of 1967.

9.The defendant had further contended that he filed O.S.No.602 of 1997 before the District Munsif Court, Kuzhithurai for permanent injunction as against the plaintiff. Since the R.D.O had passed orders in his favour, he has chosen to not press the said suit. He had further contended that he has fenced the property and he has put up a temporary shed and has allowed the members of Catholic charismatic prayer centre to conduct prayers.

10.The defendant had further contended that the Revenue Divisional Officer, Padmanabhapuram had initiated proceedings under Section 107 of Cr.P.C in M.C.No.10 of 2000. In the said proceedings, the defendant was directed to execute a bond to keep peace. Challenging the same, the 6/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 defendant had filed Crl.O.P.No.4766 of 2000 and the same was allowed by the High Court. Hence, according to the defendant, he is in lawful possession of the suit property and hence, no question of attempting to trespass into the suit property would arise. Hence, he prayed for dismissal of the suit.

11.Finding of the Trial Court:

(i).Exhibits A3 to A7 marked on the side of the plaintiff are xerox copies and the plaintiff was not a party to the said proceedings and hence, these documents cannot be accepted as a piece of evidence.

(ii).The sale certificate discloses that the plaintiff has purchased 5 acres and 76 ½ cents through Court auction. However, the present suit has been filed seeking permanent injunction for an extent 6 acres and 26 ½ cents.

(iii).The plaintiff has filed only two tax receipts namely Exhibits A8 and A22 for R.S.No.699/3. The patta marked as Exhibit A23 also reflects only R.S.No.699/3. Apart from these documents, the plaintiff has not produced any other document to establish his possession.

(iv).The order of the High Court arising out of Section 145 Cr.P.C 7/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 proceedings disclose that the delivery taken by the plaintiff in the Court auction proceedings is only a symbolic delivery and hence, the plaintiff has not established his physical possession over the suit schedule property.

(v).All the legal heirs of the usufructuary mortgagee have not been made as party to O.S.No.242 of 1967 and hence, the decree would not be binding upon the legal heirs of the usufructuary mortgagee.

(vi).Though the plaintiff got a decree in counter claim in O.S.No.602 of 1997, the same has been challenged in A.S.No.13 of 1999 which pending before the Subordinate Court and hence, the plaintiff cannot rely upon the decree in counter claim in O.S.No.602 of 1997.

(vii).The defendant in their written statement have specifically disputed the title of the plaintiff and hence, the plaintiff should have filed a suit for declaration of title and permanent injunction and hence, the present suit for bare injunction is not maintainable. The legal heirs of usufructuary mortgagee had filed O.S.No.394 of 1997 seeking declaration that they become the owners of the property due to non-redemption of usufructuary mortgage. Even assuming that the said decree was set aside that will not confer title upon the plaintiff. In a suit for permanent injunction, the entire 8/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 burden is upon the plaintiff to establish his possession of the property on the date of filing of the suit. The plaintiff, apart from few tax receipts, has not filed any document to establish his possession. That apart, the plaintiff is claiming an injunction for a larger extent than the extent of land that was purchased by him in the Court auction.

(viii).The defendant has also not produced any document to prove his possession except relying upon the order of Revenue Divisional Officer in 145 Cr.P.C proceedings which was confirmed by the High Court. Based upon the above said findings, the trial Court dismissed the suit.

12.Findings of the First Appellate Court:

(i).The plaintiff has not redeemed the usufructuary mortgage which was subsisting on the date of Court auction sale and in view of the fact that the mortgage has become time barred, the plaintiff cannot be considered to a owner of the property.

(ii).The findings and the order passed under Section 145 Cr.P.C proceedings will not bind the civil Court.

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(iii).The defendant has not produced any document to establish whether the usufructuary mortgagee or his legal heirs have paid tax to the suit schedule property.

(iv).The defendant has filed a suit for specific performance as against the legal heirs of usufructuary mortgagee in O.S.No.16 of 1998 and the defendant has to work out his remedy only in the said suit.

(v).Until the defendant works out his remedy in the specific performance suit, the plaintiff is entitled to a decree for permanent injunction that he should not be disturbed unless by due process of law.

13.Based upon the said findings, the First Appellate Court reversed the judgement and decree of the trial Court and granted a qualified decree of permanent injunction restraining the defendant from disturbing the possession of the plaintiff unless by due process of law.

14.The second appeal has been admitted on the following substantial questions of law:

“(i).Whether the First Appellate court has got jurisdiction to grant limited injunction relief to the respondent till proper action as per law is taken against him when he was defeated in the Section 145 Cr.P.C proceedings as per Ex.B.5?

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(ii).Having found that Ex.B1, usufructuary mortgage was not redeemed and barred by limitation, conferring title on the legal heirs of the mortgagee thereunder, whether the First Appellate Court is legally correct in not accepting the validity of the agreement for sale, Ex.B.7 executed in favour of the appellant by the legal heirs of the mortgagee and part performance of the said contract by the appellant?

(iii).Whether the lower Appellate Court is legally correct in over looking Ex.B5, Section 145 Cr.P.C proceedings and finding possession in favour of the respondent when he has not pleaded and proved how he entered into possession after he lost his false claim of possession in Ex.B5?”

15.Contentions of the learned counsel appearing for the appellants:

(i).The money decree in O.S.No.242 of 1967 is based upon a simple mortgage dated 18.04.1955. After 6 months, the mortgagor has created a usufructuary mortgage in favour of one Siluvai Arukkanchi on 04.10.1955.

When the suit in O.S.No.242 of 1967 was filed, Siluvai Arukkanchi had already died in the year 1965. However, a dead person was shown as one of the defendants and O.S.No.242 of 1967 was filed. The said suit was dismissed on 12.02.1967. However on appeal in A.S.No.113 of 1971, the same was allowed.

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(ii).The learned counsel for the appellants had further contended that the decree holder/mortgagee had brought the property for sale in E.P.No.59 of 1982. In the said proceedings, all the legal heirs of usufructuary mortgagee were not impleaded. Only one of the legal heirs, namely Pious Fernando was impleaded. He was a minor at that point of time. However, he was shown as a major and the execution proceedings had been conducted as against the said Pious Fernando. Hence, the execution proceedings were null and void and not binding upon the legal heirs of the usufructuary mortgagee.

(iii).The learned counsel had further contended that when delivery was ordered, the legal heirs of the usufructuary mortgagee were in possession of the property. The auction purchaser would be entitled to take only a symbolic possession and he will not be entitled to take physical possession of the property without redeeming the usufructuary mortgage. Hence, the delivery receipt only reflects a paper delivery and actually delivery was not taken by the plaintiff.

(iv).The learned counsel for the appellants had further contended that the original owner of the property had created an usufructuary mortgage in 12/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 favour of Siluvai Arukkanchi on 04.10.1955. The said mortgage has become time barred in the year 1985. Thereafter, the mortgagor of the property will not have any right of redemption. What the plaintiff has purchased in the Court auction is only right of redemption of the said mortagor. When the mortgagor has already lost his title, the Court auction sale would not confer any title upon the plaintiff. Hence, the sale certificate issued in favour of the plaintiff will not confer any title to the plaintiff.

(v).The learned counsel for the appellants had further contended that the legal heirs of usufructuary mortgagee had filed O.S.No.394 of 1997 for the relief of declaration that they have become owners of the property due to non-redemption of the mortgage. The said suit was decreed on 27.10.1997. Hence, the plaintiff will not get any title over the property by way of Court auction purchase.

(vi).The learned counsel for the appellants had further contended that he had filed a suit for permanent injunction as against the plaintiff in O.S.No.602 of 1997. Pending suit, the Revenue Divisional Officer, Padmanabhapuram had passed an order on 16.07.1998 under Section 145 Cr.P.C confirming the possession of the defendant. Hence, the defendant 13/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 had not pressed the said suit on 16.12.1998. However, the defendant in the said suit (plaintiff herein) had filed a counter claim for declaring that the decree in O.S.No.394 of 1997 has become null and void. The counter claim was decreed by the Court on 16.12.1998. Such declaration would not confer any title upon the plaintiff or will confirm the possession of the plaintiff in the suit schedule property.

(vii).The learned counsel for the appellants had further contended that the tax receipt and the patta granted to the plaintiff would clearly establish that they have been issued for only survey number namely Survey.No.699/3 and they will not confer any right upon the plaintiff for all the survey numbers and for the entire extent for which the decree for permanent injunction has been prayed for.

(viii).The learned counsel for the appellants had further contended that the Revenue Divisional Officer, Padmanabhapuram in his proceedings dated 16.07.1998 had categorically found that the defendant is in possession of the property. This order was challenged by the plaintiff before the High Court in Crl.R.C.No.812 of 1998. The said revision petition was dismissed by the High Court on 24.08.1999 with an observation that the delivery taken 14/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 by the plaintiff in the Court auction proceedings is only symbolic delivery. However, the High Court has directed the plaintiff to approach the competent civil Court to establish his title and possession over the subject matter of the property. However, the present suit filed by the plaintiff for permanent injunction alone which is not maintainable.

(ix).The learned counsel for the appellants had further contended that when the High Court has already arrived at a finding that the possession of the plaintiff is only symbolic, the plaintiff cannot claim a decree for permanent injunction to protect his physical possession based upon the said symbolic delivery. He had further contended the defendant has entered into a registered sale agreement with the legal heirs of the usufructuary mortgagee on 30.07.1997 and the possession was also handed over to the defendant under the said document. He had also filed O.S.No.16 of 1998 for specific performance to enforce the said agreement and the same is pending. Hence, his possession is protected under Section 53-A of the Transfer of Property Act.

(x).The learned counsel for the appellants had further contended that the non-redemption of usufructuary mortgage is being admitted. The trial 15/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 Court as well as the First Appellate Court have arrived at a concurrent finding that the redemption of usufructuary mortgage has become time barred and in the light of the said findings, the plaintiff is not entitled to a decree for permanent injunction.

(xi).The learned counsel for the appellants had further contended that the sale certificate issued by the Court is always subject to usufructuary mortgage and unless the said mortgage is redemeed, the plaintiff would not be entitled to get physical possession of the property. In the present case, having not redeemed the mortgage, he is not entitled to a decree for permanent injunction.

(xii).The learned counsel for the appellants had further contended that the pendency of the specific performance suit will not confer any right upon the plaintiff to seek a decree for permanent injunction. The said specific performance suit is between the legal hiers of the usufructuary mortagee and the defendant. Unless the plaintiff establishes his title and physical possession over the suit schedule property, he is not entitled to a decree for permanent injunction much less a qualifed permanent injunction as granted 16/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 by the First Appellate Court. Hence, he prayed for allowing the second appeal.

16.Contentions of the learned Senior Counsel appearing for the respondents.

(i).The learned Senior Counsel appearing for the respondents had contended that the suit schedule property was originally brought to Court auction sale in O.S.No.242 of 1967 and in the said proceedings, the plaintiff was the successful bidder and he had taken possession on 17.02.1991 under delivery receipt. The sale certificate is the title deed of the plaintiff and the delivery receipt will establish the possession of the plaintiff.

(ii).The learned Senior Counsel had further contended that based upon the possession, the plaintiff has also paid tax under Exhibits A8 and A22. The plaintiff has also been issued with patta under Exhibit A23. These documents will clearly establish the possession of the plaintiff. She had further contended that originally the legal heirs of usufructuary mortgagee have executed a registered power deed in favour of the defendant on 30.07.1997. However, some of the legal heirs have cancelled the said power 17/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 on 12.02.1998. Once the power deed is cancelled, thereafter, the defendant cannot represent the legal heirs of the deceased usufructuary mortgagee. The learned Senior Counsel had also relied upon a judgement of this court in C.R.P(NPD)(MD).No.328 of 2005 wherein this Court has arrived at a finding that the defendant cannot call himself to be a power agent of the deceased usufructuary mortgagee in view of the cancellation of the power deed on 12.02.1998.

(iii).The learned Senior Counsel had further contended that the defendant as power agent had filed O.S.No.394 of 1997 for declaration that they have become owners of the property. The defendant as power agent of the legal heirs of the usufructuary mortgagee had filed O.S.No.394 of 1997 to declare that they are owners of the property due to non-redemption of the usufructuary mortgage. The plaintiff has taken delivery of the property on 17.02.1991 even without impleading the plaintiff. The said suit was filed in the year 1997 as against the legal heirs of the mortgagor alone. An exparte decree came to be passed on 27.10.1997. This exparte decree was set aside in the counter claim in O.S.No.602 of 1997 by a decree dated 16.12.1998. 18/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007

(iv).The learned Senior Counsel appearing for the respondents had further contended that the decree passed in the counter claim was challenged by the defendant in A.S.No.13 of 1997 and the same was dismissed for default. The defendant had filed I.A.No.457 of 2003 to restore the appeal. However, the same was dismissed on 09.08.2004. Challening the said dismissal order, the defendant had filed CRP(NPD)(MD).No.328 of 2005 before the Madurai Bench of Madras High Court. The revision was dimsissed on 27.06.2017 both on the ground of maintainability and on merits. Hence, according to the learned Senior Counsel, the decree in O.S.No.394 of 1997 has already been set aside and therefore, the same cannot be relied upon by the defendant to contend that the usufructuary mortgagee has become the owner of the property.

(v).The learned Senior Counsel had further contended that the defendant originally claimed that he is the power agent of the legal heirs of deceased usufructuary mortgagee and attempted to disturb the possession. This Court in CRP(NPD)(MD).No.328 of 2005 has already held that the defendant is not the power agent of the legal heirs of usufructuary mortgagee. That apart, unless the suit for specific performance in O.S.No.16 19/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 of 1998 is decreed in favour of the defendant and a sale deed is executed in his favour, the defendant cannot claim to be the owner of the property. Hence, as on today, the defendant is neither power agent nor owner of the property. On the other hand, the plaintiff has established his title and possession over the suit schedule property and hence, he is entitled to a decree for injunction.

(vi).The learned Senior Counsel had further contended that the finding rendered by the First Appellate Court that the suit for redemption of usufructuary mortgage has become time barred is not legally correct in view of various Supreme Court judgments.

17.Based upon the above said findings, the learned Senior Counsel appearing for the respondents has prayed for sustaining the decree granted by the First Appellate Court.

18.I have considered the submissions made on either side and perused the oral and documentary evidence available on records. Discussion:

19.It is not in dispute that one Sam Michael is the owner of the suit schedule property in dispute. He had executed a simple mortgage on 20/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 18.04.1955 in favour of Arkalos Morais for an extent of 5.76 acres. 6 months thereafter, the owner has executed a registered usufructuary mortgage in favour of one Siluvai Arukkanchi on 04.10.1955. Due to non payment of the mortgage money, the simple mortgagee namely Arkalos Morais filed a foreclosure suit as against the Sam Michael in O.S.No.242 of 1967. The said suit was dismissed on 12.02.1967. The said simple mortgagee had filed A.S.No.113 of 1971 before the Subordinate Court, Nagercoil and the suit was decreed.

20.Based upon the decree, the mortgagee had filed E.P.No.59 of 1982 in which the suit schedule property was brought to Court auction sale. The plaintiff in the present suit namely Varghese was the successful bidder and he had purchased the property on 09.11.1984. Thereafter, the plaintiff is said to have taken delivery of the property by way of delivery receipt on 17.02.1991. According to the plaintiff, he is in possession of the suit schedule property from 17.02.1991 and patta has been issued in his favour on 27.01.1992 under Exhibit A23.

21.Per contra, the defendnat has questioned the validity of the decree and execution in O.S.No.242 of 1967. They have also disputed that the 21/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 usufructuary mortgage has become time barred. The defendant had further contended that the finding in Section 145 Cr.P.C proceedings will have a bearing upon the civil Court. Hence, these issues have to be analysed before arriving at a finding relating to the sustainability of the decree passed by the First Appellate Court.

Validity of the decree and execution proceedings in O.S.No.242 of 1967

22.The plaintiff is the successful Court auction purchaser in the above said suit. According to the defendant, the usufructuary mortgagee had already died on the date of filing of the said suit and hence, the suit being instituted as against a dead person is invalid. That apart, all the legal heirs of the usufructuary mortgagee were not impleaded during the execution proceedings. The delivery that was effected in O.S.No.242 of 1967 could only be a paper delivery in view of the fact that the usufructuary mortgagee was in possession of the property and the said mortgage has not been redeemed.

23.In a suit for recovery of money based upon a simple mortgage, a preliminary decree is passed. The said preliminary decree is only in the nature of a personal decree as against the mortgagor for repayment of the 22/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 mortgage money. Only when there is any default in payment of the mortgage money, a final decree is passed to bring the security for Court auction sale so as to release the mortgage money. Therefore, till passing of the preliminary decree, the suit continues to be a money suit wherein the usufructuary mortgagee who is in possession of the property can only be a proper party and not a necessary party. Therefore, the non impleading the legal heirs of the deceased usufructuary mortgagee during the preliminary decree proceedings will not be fatal to the said proceedings.

24.In the final decree proceedings, one of the legal heirs of the deceased usufructuary mortgagee has been impleaded as the 4th defendant. According to the defendant, the non-impleading of the other legal heirs would be fatal to the final decree proceedings. The Division Bench of our High Court in a Judgment reported in 1976 (89) LW 291 (Subramania Pillai Vs. Masterly) in Paragraph No.3 has held as follows:

"3.All that is necessary to see is whether in the execution sale proceedings there was proper representation by the judgmnet debtor or his legal representatives. It is not always a legal requisite that, inevitably, only the heirs, all of them or any of them, should figure as legal representatives. The procedural law requiring representation 23/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 will stand satisfied if there is substantial representation in the sense that all that could be done in defence was done by someone interested in the issue in the suit...."

25.In view of the judgement of the Hon'ble Division Bench, when one of the legal heirs among and other legal heirs is impleaded, it could be considered to be a substantial representation of the estate of the usufructuary mortgagee and hence, the final decree proceedings cannot be found fault with. The defendant had relied upon the age reflected in the legal heir certificate of usufructuary mortgagee to contend that the impleaded legal heir was a minor at that point of time. The legal heir certificate is issued only to establish the heirship of the enumerated persons with deceased person and it is not a document to establish the age of the legal heirs. Apart from the said legal heir certificate, no other document has been filed to establish that the impleaded legal heir was minor at that point of time. Moreover, none of the legal heirs of the usufructuary mortgagee have chosen to challenge either the money decree or execution proceedings in O.S.No.242 of 1967 at any point of time.

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26.The defendant had further contended that the usufructuary mortgagee being a possession of the property, the delivery effected in favour of the plaintiff could only be considered to be a paper delivery. It is pertinent to point out that none of the legal heirs of the usufructuary mortgagee have contended that it is a paper delivery or they continue to be in possession of the property despite delivery. The plea of paper delivery cannot be raised by a party to the proceedings. One of the legal heirs of the usufructuary mortgagee was a party to the execution proceedings and he cannot turn around and contend that the delivery was only a paper delivery. The present defendant is not claiming any independent right, but only under the legal heirs of the usufructuary mortgagee. The defence that was not available to the usufructuary mortgagee will not be available to the defendant who is said to be an agreement holder from the legal heirs of the usufructuary mortgagee.

27.In a judgment reproted in 1991-1-LW 244 ( C.Ramasami Vs. Kuruva Boyan and others) in Paragraph No. 2 it is held as follows:

“2...It is not possible for a court to ignore the evidence 25/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 afforded by the Court officials to the effect that delivery has been effected, on the mere allegation that there was no actual delivery. In order to reject the official records such as the bailiff's endorsements, there must be a definite and specific plea of fraud. In the absence of a plea of fraud with full particulars as are necessary to support the same, the court shall not direct an enquiry as to whether there is actual delivery. In every case, the judgment debtor is interested in stating that there is no physical delivery in order that he may obtain an order of stay in the appellate Court. A bare allegation that the delivery is a paper delivery and the appellant continues in possession is hardly sufficient to direct an enquiry whether there is physical delivery. The presumption under S.114 of the Evidence Act that official acts are performed regularly will undoubtedly apply....”

28.Therefore, the plea of paper delivery/symbolic possession cannot be raised either by legal heirs of the usufructuary mortgagee or by the defendant herein who claims to be a power agent of the legal heirs of the usufructuary mortgagee and also an agreement holder from the said usufructuary mortgagee. That apart, the Pious Fernando who was a party to the execution proceedings has also executed a power of attorney in favour of the defendant and also a sale agreement in favour of the defendant. Therefore, it is clear that the defendant claims only through the legal heirs 26/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 of usufructuary mortgagee. Therefore, viewed from any angle, the validity of the decree and execution of the said decree in O.S.No.242 of 1967 cannot be challenged by the defendant.

Whether redemption of usufructuary mortgage is barred by limitation:

29.A perusal of Exhibits B1 and B2 dated 04.10.1955 clearly indicate that it is an usufructuary mortgage deed executed by Sam Michael in favour of the Siluvai Arukkanchi. The defendant in his written statement has also admitted that it is an usufructuary mortgage. The Hon'ble Supreme Court in a judgment reported in (2014) 9 SCC 185 ( Singh Ram(dead) through legal representatives Vs. Sheo Ram and others) in Paragraph Nos. 21 & 22 has held as follows:

"21.We need not multiply reference to other judgments. Reference to the above judgments clearly spell out the reasons for conflicting views. In cases where distinction in usufructuary mortgagor’s right under Section 62 of the T.P. Act has been noted, right to redeem has been held to continue till the mortgage money is paid for which there is no time limit while in other cases right to redeem has been held to accrue on the date of mortgage resulting in extinguishment of right of redemption after 30 years. 27/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007

22. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the T.P. Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly".

30.In view of the above said Supreme Court judgments, the limitation for redeeming the usufructuary mortgage starts only from the date of offering of the mortgage money and not by mere expiry of 30 years period. In the present case, the legal heirs of the usufructuary mortgagee and the defendant herein are under the misconception that by mere efflux of 30 years period, the redemption of usufructuary mortgage become time barred and the usufructuary mortgagee became owners of the property. It is not the case of the defendant that the mortgage money has already been paid out of the rents and profits and 30 years have lapsed from the said date. Therefore, as righly conteded by the learned Senior Counsel appearing for the 28/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 respondents, the findings of the First Appellate Court that the usufructuary mortgage has become time barred is not legally sustainable. A decree for permanent injunction has been granted in favour of the plaintiff by the First Appellate Court. Therefore, as a respondent in the appeal, without challenging the decree, the plaintiff is entitled to object to the findings of the First Appellate Court as contemplated under Order 41 Rule 22 of C.P.C

31.The legal heirs of usufructuary mortgagee through the defendant as power agent had filed O.S.No.394 of 1997 for a declaration that they have become owners of the property due to non-redemption of usufructuary mortgage. The said suit was decreed exparte on 27.07.1997. However, the said decree was declared to be null and void in a counter claim in O.S.No. 302 of 1997.

32.The First Appeal filed by the plaintiff challenging the counter claim decree was dismissed for default and restoration application was also dismissed. The High Court by its order dated 27.06.2017 in C.R.P(NPD) (MD).No.328 of 2005 had dismissed the revision. Therefore, the decree in O.S.No.394 of 1997 being declared as null and void has reached finality. Therefore, viewed from any angle, the contention of the defendant that the 29/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 usufructuary mortgage has become time barred and the mortgagor has lost its title to the property even before the same was brought to Court auction sale is not legally sustainable.

Findings and the binding nature of Section 145 Cr.P.C proceedings over a civil suit:

33.It is settled position of law that any findings rendered in Section 145 Cr.P.C proceedings by the revenue authority would not be binding upon a competent civil Court which is dealing with an issue relating to the title and possession of the property. The order passed in Section 145 Cr.P.C proceedings cannot be a bar upon the civil Court to consider the issue afresh relating to the possession of the property. The Hon'ble Supreme Court in a judgement reported in (2000) 4 SCC 440 ( Amresh Tiwari Vs. Lalta Prasad Dubey and another) in Paragraph No14 has held as follows:

“14....We clarify that we are not stating that in every case where a civil suit is filed, Section 145 proceedings would never lie. It is only in cases where civil suit is for possession or for declaration of title in respect of the same property and where reliefs regarding protection of the property concerned can be applied for and granted by the civil Court that proceedings under Section 145 should not be allowed to continue. This is because the civil Court is competent to 30/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 decide the question of title as well as possession between the parties and the orders of the civil court would be binding on the Magistrate”.

34.The Hon'ble Supreme Court reported in (2004) 1 SCC 438 ( Shanti Kumar Panda .vs. Shakuntala Devi) in Paragraph No.23 has held as follows:

“23.For the purpose of legal proceedings initiated before a competent court subsequent to the order of an Executive Magistrate under Sections 145/146 of the Code of Criminal Procedure, the law as to the effect of the order of the Magistrate may be summarized as under:-

(1) The words 'competent court' as used in sub-section (1) of Section 146 of the code do not necessarily mean a civil court only. A competent court is one which has the jurisdictional competence to determine the question of title or the rights of the parties with regard to the entitlement as to possession over the property forming subject matter of proceedings before the Executive Magistrate;

(2) A party unsuccessful in an order under Section 145(1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under Section 31/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 146(1) of the Code it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the court it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession.

(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and weight before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence.

(4) The Court will be loath to issue an order of interim injunction or to order an interim arrangement inconsistent with the one made by the Executive Magistrate. However, to say so is merely stating a rule of caution or restraint, on exercise of discretion by Court, dictated by prudence and regard for the urgent/emergent executive orders made within jurisdiction by their makers; and certainly not a tab on power of Court. The Court does have jurisdiction to make an interim order including an order of ad-

interim injunction inconsistent with the order of the Executive 32/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 Magistrate. The jurisdiction is there but the same shall be exercised not as a rule but as an exception. Even at the stage of passing an ad- interim order the party unsuccessful before the Executive Magistrate may on material placed before the Court succeed in making out a strong prima facie case demonstrating the findings of the Executive Magistrate to be without jurisdiction, palpably wrong or self- inconsistent in which or the like cases the Court may, after recording its reasons and satisfaction, make an order inconsistent with, or in departure from, the one made by the Executive Magistrate. The order of the court final or interlocutory, would have the effect of declaring one of the parties entitled to possession and evicting therefrom the party successful before the Executive Magistrate within the meaning of sub-section (6) of Section 145”

35.A combined reading of the judgements of the Hon'ble Supreme Court cited supra would clearly establish that the findings rendered by the revenue authority under Section 145 Cr.P.C proceedings will not have any effect whatsoever over a competent civil Court which is dealing with the title and possession between the same parties. In the present case, the trial Court has heavily relied upon Section 145 Cr.P.C proceedings as confirmed by the High Court to conclude that the possession taken by the auction 33/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 purchaser is only a symbolic possession. Any order under Section 145 Cr.P.C proceedings, even if confirmed by the High Court, would not be binding upon a competent civil Court to assess the oral and documentary evidence afresh between the same party to arrive at a finding relating to the possession of the property.

36.In the present case, O.S.No.602 of 1997 has been filed on 23.12.1997 for permanent injunction. While the said suit was pending, the Revenue Divisional Officer, Padmanabhapuram has passed an order on 16.07.1998. Therefore, it is clear that, while a civil suit was pending between the same parties for permanent injunction relating to the possession of the subject matter, the Revenue Divisional Officer, Padmanabhapuram has passed the order.

37.In view of the above said Hon'ble Supreme Court judgements, the findings of the Revenue Authorities and the High Court in Section 145 Cr.P.C proceedings ought not to have been relied upon by the civil Court. Title and possession of the plaintiff:

38.A sale certificate has been issued in favour of the plaintiff under Exhibit A11 dated 17.11.1984. The plaintiff was able to take delivery of the 34/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 property under a delivery list dated 04.02.1991 which is marked as Exhibit A1. The plaintiff relies upon these two documents to establish his title over the property. Per contra, the defendant contends that the simple mortgagor has lost his title in view of non-redemption of usufructuary mortgage. The defendant had further challenged the validity of the decree and execution proceedings in O.S.No.242 of 1967. This Court has already arrived at a finding that the decree and execution proceedings in O.S.No.242 of 1967 are legally valid and there is no lacuna in the said proceedings. This Court has also arrived at a finding that the redemption of usufructuary mortgage has not become time barred. Except these two legal grounds raised by the defendant, no other factual dispute has been raised by the defendant relating to the title of the property.

39.In fact, the plaintiff and the defendant admit that one Sam Michael is the owner of the property. Even as per the averments in the written statement, the defendant claims to be in possession of the property, pursuant to a registered sale agreement dated 30.07.1997. The defendant is only an agreement holder whose suit for specific performance is still pending. Therefore, the plaintiff has got a better title than the defendant and the 35/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 defendant has not created any cloud over the title of property warranting prayer for declaration of title.

40.The plaintiff has relied upon Exhibit A1 delivery receipt to establish his possession over the property. This Court has already arrived at a finding that the plea of paper delivery cannot be raised by a party to the proceedings. In the present case, the defendant claims under a party to the execution proceedings as an agreement holder. As per the delivery recceipt, the plaintiff is said to have taken possession of the property on 17.02.1991 under Exhibit A1 and patta has been issued in favour of the plaintiff on 27.01.1992. The defendant claims to have entered into possession of the property on 30.07.1997 based upon a sale agreement. Therefore, it is clear that the plaitniff has established his possession over the property even prior to the possession as claimed by the defendant. On the side of the defendant, except sale agreement and the observations in Section 145 Cr.P.C proceedings, no other document has been placed before the Court to establish his possession. Therefore, it is clear that the plaintiff has established his possession over the suit schedule property on the date of filing of the suit.

36/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 Extent of possession of the plaintiff:

41.A perusal of Exhibit A11 sale certificate indicates that the plaitniff has purchased only 5 acres and 76 ½ cents in the Court auction sale.

However, the plaint schedule discloses that the plaintiff seeks prayer for permanent injunction for an extent of 6 acres and 26 ½ cents. Therefore, it is clear that the plaintiff is seeking a decree for permanent injunction for a larger extent than what was purchased by him in the Court auction sale. The plaintiff has not offered any explanation in the plaint for seeking a prayer for a larger extent. Therefore, the plaintiff would be entitled to a decree for permanent injunction only for an extent of 5 acres and 76 ½ cents as per Exhibit A11 sale certificate. However, the First Appellate Court has proceeded to grant a decree for an extent of 6 acres and 26 ½ cents. Therefore, the decree of the First Appellate Court requires to be modified and a decree for permanent injunction could be granted in favour of the plaintiff for a lesser extent of 5 acres and 76 ½ cents.

42.In view of the above said discussion, the substaintial questions of law are answered as follows:

37/40

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(i).The observation made in the proceedings under Section 145 Cr.P.C proceedings will not be binding upon a competent civil Court which is dealing with the issue of possession over the property in dispute. Hence, the First Appellate Court has got jurisdiction to grant limited injunction relief.

(ii).The usufructuary mortgage has not become time barred and hence, the First Appellate Court is legally correct in not relying upon the agreement for sale and part performance pleaded by the appellant.

(iii).The plaintiff has pleaded and proved his possession through Exhibits A1, A8, A22 and A23 and therefore, the First Appellate Court was right in overlooking the observations in the proceedings under Section 145 Cr.P.C proceedings.

43.All the substantial questions of law are answered as against the appellants. However, the decree of the First Appellate Court is modified to the effect that the plaintiff would be entitled to a decree for permanent injunction only to an extent of 5 acres and 76 ½ cents within the four 38/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 boundaries as specified in Exhibit A11 sale certificate dated 17.11.1984 in O.S.No.242 of 1967 on the file of the District Munsif Court, Kuzhithurai.

44.With the above observation, this Second Appeal is partly allowed to the extent as stated above. No costs.




                                                                                 30.01.2023

                     Index    : Yes / No
                     Internet : Yes / No
                     NCC      : Yes/No
                     msa


                     To
                     1.The Subordinate Judge, Kuzhithurai

2. The I Additional District Munsif, Kuzhithurai.

3.The Section Officer V.R.Section Madurai Bench of Madras High Court Madurai 39/40 https://www.mhc.tn.gov.in/judis S.A.(MD).No.411 of 2007 R.VIJAYAKUMAR,J.

msa Pre-delivery Judgment made in S.A.(MD).No.411 of 2007 30.01.2023 40/40 https://www.mhc.tn.gov.in/judis

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