Nesamony (Died) vs Selvamony

C.S. Karnan, J.—The short facts of the case are as follows:

The Plaintiff stated that in the Suit Schedule mentioned property is the specific Plot of 32.280 cents which was already carved as Plot No. 2 of the Final Decree and Plan in O.S. No.432 of 1967 of the District Munsif''s Court, Kuzhithurai The above said Suit O.S. No.432 of 1967 of the District Munsif''s Court, Kuzhithurai is for Partition and for redemption for the Mortgage right of one Nagamony, one Kumaraswamy, one Ganapathi and one is Swamammal. The Plaint Schedule property was allotted in favour of the above said Nagamony. the Kumaraswamy, Ganapathi and Swamammal. But the above said Nagamony alone was in possession and enjoyment over the same, since he redeemed the earlier Mortgage, which relates to the Suit property under registered Document No.6089 of 1960 of the Munchirai Sub-Registrar''s office The Suit property was allotted in favour of the above said four persons, the said Nagamony alone was in possession and enjoyment ever the Suit property. That is why the above said Nagamony, Kumaraswamy, Ganapathi and Swamammal had not taken delivery of the Suit property till now under the said Final Decree in O.S No.432 of 1967 dated 4.12.1973. The said Final Decree and Plan also already got time barred. The said Nagamony and others having only Mortgage right over the Suit property and the said Nagamony alone was in possession under the above said other Mortgagees. The Plaintiff''s father Joseph was the Jenmi of the Suit property under his Sale Deed dated 21.5.1117 ME/5.1.1942 AD. He was having earlier Mortgage right also. After the death of Joseph, Plaintiff got absolute right over the same. Since the said Nagamony was in possession over the Suit property under the said Mortgages, Plaintiff took release the said Mortgages from the said Nagamony on 21.9.1973. Thus from 21.9.1973 onwards Plaintiff got absolute title and possession over the Suit property. Plaintiff got Patta for the Suit property and paying tax for the same from 1973 onwards. In the meantime, the First Munsif''s Court, Kuzhithurai claim right within the Suit Survey Number property under the above said Mortgage right mentioned in O.S. No.432 of 1967. In the said Suit the above said persons mentioned in the Plaint namely Swamammal and Ganapathi admit the exclusive possession of the above said Nagamony. Against the Judgment and Decree in O.S. No.305 of 1972 the First Defendant filed A.S. No.83 of 1998 before the Subordinate Judge''s Court, Kuzhithurai and the Appeal was also dismissed. After that the very same Defendant filed Suit for Partition in OS. No. 311 of 1975 before the District Munsifs Court, Kuzhithurai again claiming the above said right mentioned in O.S. No. 432 of 1967. The above said Suit was also dismissed on 16.10.2000. Against that no Appeal. The Defendants made one such attempt on 20.12.2004 and it was averted by the timely intervention of the Plaintiff. After that also the Defendants are taking hasty steps to do the said illegal acts by gathering more people. In these circumstances, the Plaintiff is necessitated to seek declaration of his title and possession over the Suit property and for consequential injunction The Plaintiff asked the Defendants to settle the matter out of Court several times and finally on 29.12.2004. But the Defendants are not amenable. Hence, this Suit.

The Defendants have filed Written Statements which are as follows:

The present Defendants 1 to 4 filed a detailed Written Statement opposing the maintainability of the Suit dragged the same for five years and endorsed as not pressed on 04.03.2004. Suppressing the aforesaid facts contradicting the pleading raised in O.S. No.88 of 1998. the Plaintiff claimed Plot No. II situated immediately on the east of Plot No. III. belonged to these Defendants The Plaintiff''s claim found in the Plaint in O.S. No. 88 of 1998 will convince that he is stopped from claiming Plot No. II. A Suit for Partition in O.S. No. 432 of 1967 was instituted by Issakkiel Nadar, son of Kolappan Nadar claiming partition and separate possession of his ? share from the total extent of 1 Acre and 35 cents in Punathuvilai Purayidom blocked in O. Sy. No. 2190 and got it decreed preliminary on 22.12.1971. The ?th share i.e. ? share from the remaining 1/2 was given to Kumaraswamy the husband of 1st Defendant and father of Defendants 2 to 5 as 6th Defendant along with Nagamony Nadar, Ganapathy and Swamammal as Defendants 5, 7 & 8. The remaining ?th share was allotted to other Defendants therein. Thus, the exclusive possession claimed by Nagamony quite against the germs of the said Decree in view of the Release Deed dated 26.11.1960 is not maintainable. The admission that Nagamony did not take delivery in O.S. No.432 of 1967 is enough to hold that he is not in possession of the Suit property. The predecessor-in-interest of the Plaintiff-Yesuvadian Joseph executed Mortgage over the Suit property in favour of Neelan Kumar an on 8.2.1086 ME. Was followed by a Purakkadom on 27.6.1936. The Mortgagee-Neelan Kumaran died and was succeeded by his sons executed a Sub-Mortgage to Kunchupillai and his wife Chempakakutti on 13.10.1106 ME. The aforesaid Sub-Mortgages executed otti to Nagamony on 25.7.1942. The original Mortgage of the year 1086 ME became time barred by non-redemption and the Mortgagee-Neelan Kumaran perfected title executed a Sale Deed in favour of Kunjamma the First Defendant herein on 7.2.1972 with a recital to redeem the Mortgage taken by Nagamony. The First Defendant after the passing of Preliminary Decree in O.S. No. 432 of 1967 when enquired with the Sub-Register in Munchirai came to know that the Mortgage executed by Yesuvadian Joseph in favour of Neelan Kumaran became time barred Therefore, she instituted a Suit in O.S. No. 305 of 1972 against the present Plaintiff as Third Defendant and others for redemption. The aforesaid Sub-Mortgagee-Nagamony was arrayed as 10th Defendant in that Suit and thus, the First Defendant herein got a Preliminary Decree on 19.8.1977. Issue No. 1 of the preliminary Judgment also reveals that the aforesaid original Mortgage of the year 1086 ME became time-barred. The present Plaintiff filed another Suit in O S No.515 of 1972 though got it tried jointly with O.S. No. 305 of 1972. miserably failed, has preferred A.S. No. 529 of 1977, also ended in dismissal on 20.11.1981. Thus the Preliminary Decree obtained by this First Defendant in O.S. No.305 of 1972 became conclusive and binding on the present Plaintiff since it has superceded the Decree passed in O.S. No.432 of 1967 dated 24.12.1971. Thus the First Defendant herein as a Decree-holder in O.S. No.305 of 1972 applied for passing Final Decree under I.A. No. 1401 of 1977 and a Final Decree was passed by excluding the western 320 cents based on the Final Decree passed in O.S. No.432 of 1967. Aggrieved by it, the First Defendant herein preferred A.S. No. 148 of 1982. In the meantime, the present Plaintiff instituted another Suit in O.S. No.286 of 1982 and in view of the Interim Injunction passed therein a modified Decree for ? share from the total extent excluding 320 cents Against this finding the present First Defendant preferred Second Appeal No. 119 of 1984. In the meantime the aforesaid Suit filed by the Plaintiff in O.S. No.286 of 1982 was dismissed. The Trial Court after the remand also went against the spirit of the aforesaid Remand Order again followed the erroneous decision in AS. No. 148 of 1982. The present Plaintiff as a Respondent therein received summon and participated in all proceedings is still pending for disposal. Having full knowledge and having participated in all proceedings in the aforesaid Appeals had deliberately suppressed them and instituted this frivolous and vexatious Suit and obtained an Interim Injunction Order. These Defendants apposed the Injunction filed a detailed Counter after convincing the real facts, vacated the Injunction Order and passed an Order of status quo on 21.07.2005. Since the executant is incompetent to execute the same no right or possession is conveyed to Joseph and no devolution of any right can be claimed by the Plaintiff from Nagamony on 21.9.1973 is untrue and it will not take effect. The Plaintiff did not and could not get Patta and the fact that he paid tax from 1973 onwards must be established through authenticated records. The claim of the present Plaintiff over Plot No. 2 carved out in the Plan appended to the Final Decree in O.S. No. 432 of 1967 is baseless. He is also estopped from raising such an untenable claim since he claimed Plot No.3 in the said Plan through a Suit in O.S. No. 88 of 1998 as Plaintiff contented to the Plaintiff and got it dismissed as not proceeded. The Plaintiff got no right or possession over Plots 2 or 3 in the Final Decree in O.S. No. 432 of 1967, he is non-suited. The Plaintiff asked the Defendants to settle the matter out of Court is denied. No such request ever was made on 29.12.2004. Therefore the Plaintiff has no cause of action to institute this vexatious Suit. Hence, the Suit may be dismissed with costs

The averments of the Reply Statement filed by the Plaintiff to the Written Statement filed by the Defendants are briefly as follows:

The Property Schedule in this Suit is only Plot No.2 under the Final Decree and Plan in O.S. No. 432 of 1967 of Kuzhithurai Munsif''s Court. Hence, this Suit is not in any way connected with the Plot No. 3 under the Final Decree and Plan in O.S. No. 432 of 1967. The Suit in O.S. No. 88 of 1998 of Kuzhithurai Munsif Court relied by the Defendant in their Written Statement is only related to Plot No. 3 under the Final Decree and Plain in O.S. No.432 of 1967 of Kuzhithurai Munsif Court. Hence, the said O.S. No. 88 of 1998 is in no way connected with this Suit. The relief claimed in this Suit in only in relation to Plot No. 2 under the Final Decree and Plan in O.S. No. 432 of 1967 The Plaintiff alone redeemed the said Mortgage right from the said Nagamony and got the possession over the Suit property. The claim of Defendants that the Decree in O.S. No. 432 of 1967 was superceded by the Decree in O.S. No. 305 of 1972 is without any basis and opposed to facts and law. The said O.S. No. 305 of 1972 and O.S. No.515 of 1972 were filed only after admitting the Final Decree and Plan in O.S. No. 432 of 1967. The Final Decree for redemption under O.S. No 305 of 1972 is excluding the western 32? cents based on the Final Decree Plan in O.S. No. 432 of 1967. Thus the Final Decree passed under O.S. No.305 of 1971 is excluding the Property Schedule in this Suit as categorically admitted by the Defendants in their Written Statement. The Defendants not being satisfied by the Decree in O.S. No.305 of 1972 have filed Appeal A.S. No 83 of 1998 which was also dismissed oil 13.02.2003. To restore the said A.S. No.83 of 1998 the Defendants filed an Application and the same was also dismissed. Apart from all these things, the Defendants admitted the case of the Plaintiff that the Suit property was in the possession of Nagamony and the First Defendant got his Sale Deed dated 07.02.1972 with a recital to redeem that Mortgage right from Nagamony. But the Plaintiff alone redeemed the Mortgage right from the said Nagamony and got possession over the Suit property. Hence, the Defendants are estopped from claiming possession over the Suit property. Thus, the pleadings of the Defendants in their Written Statement also reveals that the Plaintiff alone is in physical possession over the Suit property. The Defendants already filed O.S. No.305 of 1972 for redemption of the same Suit property and their Suit was finally dismissed and so far they have not redeemed the Mortgage right of Nagamony, hence the Defendant could not claim possession over the Suit property. But the Plaintiff alone redeemed the said Mortgage and Plaintiff alone is paying land tax for the Suit property. The Plaintiff also got title over the Suit property under the above said O.S. No. 432 of 1967. Hence, the Plaintiff is entitled to get all the relief claimed in this Suit and it is prayed that the Reply Statement be accepted and this Suit may be decreed as prayed for.

The contentions raised in the Additional Written Statement filed by the Second Defendant on his behalf and on behalf of the Defendants 1, 3 to 5 are briefly as follows:

It is pertinent to note that the relief of demarcation claimed in O.S. No. 88 of 1998 for the western most Plot No. III carved out in the Plan appended to the Final Decree passed in O.S. No.432 of 1967 anticipating the failure, cunningly withdrew the same as not pressed on 04 03.2004 and filed this vexatious test Suit claimed in Plot No. II in the aforesaid Plan. The Decree in O.S. No.432 of 1967 does not speak that Nagamony got right over Plot No. II. Hence, the said Nagamony did not and could not take delivery of such a Plot. The unchallenged Preliminary Decree obtained against the Plaintiff herein as 3rd Defendant in O.S. No. 305 of 1972 proceeded through the Final Decree remanded from this Court in A.S. No. 148 of 1982, decreed subsequently against the spirit or Remand Order again challenged in A.S. No. 83 of 1998 dismissed for default, refused the restoration of the same and is still pending in C.M.A No.64 of 2003 before the Court of District and Sessions Judge, Nagercoil. Hence, the Plaintiff did not and could not take possession over any portion of the Suit property The alleged execution of Release Deed by the Sub-Mortgagee-Nagamony on 219 1973 over the time-barred original Mortgage of 1086 ME. as found in lines 37 to 40 of Paragraph 17 of the Judgment in O.S. No.305 of 1972 dated 19.08.1977 did not and could not confer any title or possession to the Plaintiff. The Reply Statement of the Plaintiff admitting the Sale Deed executed by Nagamony in favour of the First Defendant on 07.02.1972 with a recital to redeem Nagamony and the subsequent Decree passed preliminary in O.S. No. 305 of 1972 on 19.08.1977 for redemption pending in Final Decree proceedings will not affect the right of these Defendants. The reply statement that these Defendants have admitted in their Written Statement about the exclusion of the Suit property in O.S No.305 of 1972 will not confer title to the Plaintiff. On the whole the Plaintiff is not definite about the title or possession over the Suit Plot, in fact he is not in possession of Plot No. 2 or 3 cited in the Plan appended to the Final Decree in O.S. No. 432 of 1967. The Plaintiff, who preferred a good number of Complaints before the Police and tried to snatch away. The Suit property from these Defendants during the pendency of this Suit miserably failed is still out of possession Hence, the Suit may be dismissed with compensatory Costs.

Based upon the above said pleadings, this Court framed the following issues for trial:

1 Whether the Plaintiff is owner of the Suit property ?

2 Whether Plaintiff is entitled to the Decree for declared as a owner of the Suit property ?

3 Whether the Plaintiff is in possession and enjoyment of the Suit property ?

4 Whether the Plaintiff is entitled to a Decree for Injunction against the Defendants ?

To what other relief and costs ?

On the side of Plaintiff, Thiru. Nesamony was examined as PW1 and Thiru Selvadhas was examined as PW2 and Exs.A1 to A13 were marked. On the side of Defendants, 2nd Defendant Thiru Selvamony was examined as DW1 and Thiru Nesamony was examined as DW2 & Exs.B1 to B15 were marked.

Issue No. 1 and 2:

Plaintiff''s Counsel argued that Suit property for the extent of 32.250 cents comprised in Old Sy. No.2170 as Plot No.2 carved out in the Final Decree passed in O.S No.432 of 1967 in Piuinathuvilai Purayidam. Suit property originally belonged to Plaintiffs father Joseph through a Sale Deed dated 21.05.1118 ME. 05.01.1942 AD. That Sale Deed is marked as Ex.A1, Tamil copy is marked as Ex.A2. Nesamony redeemed the earlier Mortgage with respect of the Suit property under Release Deed dated 26.11.1960, which is marked as Ex.A3 and Tamil copy is marked as Ex. A4, Otti redeemed Deed dated 21.9.1973 which is marked as Ex.A5 and the Tamil copy is marked as Ex.A6, Judgment copy in O.S. No.311 of 1975 dated 16.10.2000 is marked as Ex.A7 and the Tamil copy is marked as Ex. A8. Plaint copy of O.S. No.305 of 1972 is marked as Ex. A9. Copy of Judgment in Appeal Suit No. 83 of 1998 dated 22.09.2003 which is marked Ex.A10. Land Tax Receipt dated 18.11.2000 is marked as Ex.A11 Copy of Final Decree Judgment in O.S. No.432 of 1967 dated 04.12.1973 which is marked as Ex. A12. Copy of Plaint in O.S. No. 88 of 1998 is marked as Ex. A13. Further Plaintiff''s Counsel argued that predecessors in interest of Suit property. Yesuvadian Joseph executed a Mortgage over the Suit property in favour of Neelakandan. Plot Nos.2 & 3 lies as single plot covered by the compound wall. The above said fact was admitted by DW2. The Mortgage of Nagamony in O.S. No. 305 of 1972 was redeemed by the Plaintiff as per Ex. A5. Even though Ex.B3 is for Plot No.3 in O.S. No.432 of 1967. As per documentary evidence also Defendants cannot claim any possessory right over the Suit property The Respondents Defendants have not obtained any Final Decree for redemption of the earlier. Mortgage. So that Preliminary Decree alone is kept in the hands of the Defendants So, their possession also not followed by any one of the Decree So. during the pendency of the Suit for redemption the Release Deed has been obtained by Petitioners predecessors in title. So the Plaintiff is in possession of the property according to the document submitted on his side and Tax Receipts also found in the name of the Petitioners. On Respondent side also Chitta Adangal found in the name of the Respondents. In such circumstances oral evidence of the both sides is very essential for deciding the rights of the parties. According to the documents submitted by the Plaintiff side, it reveals that the Release Deed relating to the earlier Mortgage was executed in favour of the Petitioner predecessors in title. So, there is no such Mortgage prevailing at the present position. The Defendants are relying upon the Preliminary Decree passed for redemption of Mortgage right there two contentions raised by both sides could not be decided until oral evidence is let in. So, both parties are directed to maintain status quo till the disposal of the Suit. For the Suit property the Defendants filed only one Suit O.S. No.311 of 1975 Ex.A7 is the Judgment in O.S. No.311 of 1975 Ex. A8 is the Decree in O.S. No. 311 of 1975 also dismissed. No Appeal till today. As submitted above Plaintiff alone is in possession over the Suit property and Defendant could not claim any right or possession over this Suit property. Hence, the Suit may be decreed as prayed in the Suit.

The Defendants'' Counsel argued that the predecessor-in-interest of the Plaintiff named Yesuvadian Joseph executed a Mortgage over the Suit property to Neelan Kumaran on 08.02.1086 ME 24.09.1910 A.D., followed by a Purakkadam on 27.06.1936. The sons of Neelan Kumaran executed a Sub-Mortgage to Kunjupillai and Chembaka Kutty on 13.10.1106 ME./27.01.1931 A.D., the aforesaid Sub-Mortgagee executed another Mortgage to Nagamony on 25.07.1942. Since the original Mortgage of 1086 ME. became time-barred by non-redemption, the Mortgagee-Neelan Kumaran perfected title, he executed a Sale Deed to the First Defendant Kunjamma on 07.02.1972 with a recital to redeem the Mortgage obtained by Nagamony. Further Defendants, Counsel argued that the First Defendant herein as Plaintiff and Decree-holder in O.S No.305 of 1972 applied for passing Final Decree under I.A. No. 1401 of 1977 and a Final Decree was passed for an indefinite portion. Aggrieved by it the First Defendant preferred A.S. No. 148 of 1982 which gave a Decree for ?th excluding the western ?th share. Again the First Defendant preferred S.A. No. 1199 of 1984 which remanded the same to the Trial Court on 17.6.1995. In the meantime, the Plaintiff filed another Suit in O.S. No.286/1982 and obtained an Injunction Order which was dismissed subsequently for default. The Application to restore the same also dismissed.

During the examination of DW1, who is the Second Defendant Thiru Selvamony, he disposed in his evidence stating that-

",t;tHf;fpYs;s gpujpfspd; chpikfis tpsf;Fk; bghUl;L F";Rg;gps;is kw;Wk; mth; kidtp brk;gff;Fl;o MfpnahUf;F 13/10/1106 vk;/,/ 27/1/1931y; bfhLj;j rpw;bwhw;wp Mtzk; gp/rh/M/1 mjd; jkpH; efy; gp/rh/M/2 Mff; Fwpaplg;gl;Ls;sJ/ ,t;tHf;fpd; 1k; gpujpf;F 7/2/1972y; fpilj;j fpua Mttzk; gp/rh/M/3 mjd; jkpH; efy; gp/rh/M/4 MFk;/ ,t;tHf;fpd; thjp jhf;fy; bra;j mry; tHf;F vz;/515-1972d; jhth efy; gp/rh/M/5 MFk;/ mry; tHf;F vz;/305-1972 kw;Wk; 515-1972 ,tw;iw ,izj;J xd;whfg; gpwg;gpf;fg;gl;l bghJj; jPh;g;g[iu efy; gp/rh/M/6 MFk;/ mry; tHf;F vz;/432-67y; gpwg;gpf;fg;gl;l Kjy;epiyj; jPh;g;ghiz efy; gp/rh/M/7 MFk;/ mry; tHf;F vz;/305-1972y; Vw;gl;l ,Wjpepiyj; jPh;g;ghiz efy; gp/rh/M/8 MFk;/ mjd; kPJ cah;ePjpkd;wj;jpy; ,uz;lhtJ nky;KiwaPL vz;/119-1984y; gpwg;gpf;fg;gl;lj; jPh;g;g[iu efy; gp/rh/M/9 MFk;/ mry; tHf;F vz;/88-1998y; cs;s jhth efy; gp/rh/M/10 MFk;/ mjpy; Vw;gl;l jPh;g;g[iu efy; gp/rh/M/11 MFk;/ mjd; jPh;g;ghiz efy; gp/rh/M/12 MFk;/ jhthr; brhj;Jf;Fhpa tpy;y'';f rhd;wpjH; gp/rh/M/13 MFk;/ 1k; gpujp bgahpy; Vw;gl;l epythp urPJ gp/rh/M/14 MFk;/ nkYk; mth; bgahpy; Vw;gl;l rpl;lh kw;Wk; ml'';fy; rhd;W gp/rh/M/15 MFk;/ ,it midj;Jk; thjp ,t;tHf;fpy; cWj;Jf;fl;lisf; nfhhp jhf;fy; bra;j kDtpy; vjph;kDjhuh; jug;g[ rhd;whtz'';fs; 1 Kjy; 15 tiu MFk;"

Further Defendants'' Counsel argued that Plaintiff has no right, possession and enjoyment over the Suit property, since the original Mortgage of 1086 M E became time-barred. In this circumstances, Plaintiff is not entitled to any relief in the Suit, the Suit may be dismissed.

On considering the facts and circumstances of this case, the Suit has been instituted for declaration of title and possession over the Plaint Schedule property of 32.250 cents comprised in Old Sy. No.2170 alleged to have been obtained as Plot No. 2 carved out in the Final Decree passed in O.S. No. 432 of 1967. According to the Plaintiff in the Final Decree proceedings in O.S. No. 432 of 1067, Plot No.2 was allotted in favour of Nagamony, Kumaraswamy, Ganapathy and Swamammal. Since Nagamony redeemed the earlier Mortgage in respect of the Suit property in the year 1060. From then, Nagamony has been in possession and enjoyment of the Suit property Plaintiffs father Joseph obtained the Suit property through Sale Deed on 21.5.1117 ME. Plaintiff released of the said Mortgages from Nagamony on 21..1973 From 21.9.1973, Plaintiff got title and possession over the Suit property Plaintiff and Defendants admitted that the Suit property involved in O.S No. 432 of 1967 in which Preliminary Decree and Final Decree were passed. As per Ex. A12, Final Decree and Plan Suit Plot No.2 was allotted to Defendants 5 to 8 on that Suit. Aggrieved against the finding in O S. No.432 of 1967 present Defendants filed an original Suit in O.S. No.305 of 1972. on counter-blast of that Suit, present Plaintiff and others filed in O.S. No.515 of 1972. The above said two Suits O.S Nos. 305 of 1972 and 515 of 1972 were jointly tried by this Court and passed a Preliminary Decree. The Judgment copy in O.S. No.305 of 1972 and O.S. No 515 of 1972 which is marked as Ex. B6 and Decree copy is marked as Ex.B7 The above said Judgment and Decree in O.S No. 305 of 1972 was decreed in favour of the present Defendants and O.S No.515 of 1972 was dismissed against the present Plaintiff and others. The above said Judgment original Mortgage of 1086 ME was decided as a time-barred Mortgage. Plaintiff himself admitted in the Plaint that Defendants claim right only under time-barred Mortgage right under Ext.B3. On perusal of the Plaint averments, Plaintiff admitted in the Plaint that the right acquired by Nagamony Kumaraswamy, Ganapathy and Swamammal were not passed because Final Decree passed in O.S. No. 432 of 1967 on 4.12.1973 the said Final Decree became time-barred. The contention raised by the Plaintiff as Final Decree became time-barred is not an acceptable one. Plaintiff derived the title from the share allotted in O.S. No.432 of 1967. But he himself admitted that Final Decree became time-barred.

Present Plaintiff already has filed an another Suit in O.S. No.88 of 1998 arraying present Defendants as the Defendants in the above said Suit claiming the relief of declaration and demarcation of Plot No. 3 passed in O.S. No. 432 of 1967. In this Suit, the Plaint copy is marked as Ex. A13. In the Plaint copy in O.S. No. 88 of 1998 present Plaintiff, endorsed that Suit was not pressed in the Plaint. On his endorsement the Suit was dismissed against present Plaintiff. On perusal of the Plaint averments in O.S. No. 88 of 1996, present Plaintiff claimed right over Plot No. 3 in the present Suit. Plaintiff claims right over Plot No. 2 which is an inconsistent stand taken by the Plaintiff in the above said Suits.

The Defendants'' Counsel contented that Plaintiff named Yesuvadian Joseph executed a Mortgage over the Suit property to Neelan Kumaran on 8.2.1086 M.E. 24.9.1910 A.D., followed by a Purakkandam on 27.6.1936 the sons of Neelan Kumaran executed a Sub-Mortgage to Kunjupillai and Chembaka Kutty on 13.10.1106 ME 27.1.1931 A.D. The aforesaid Sub-Mortgagees executed another Mortgage to Nagamony on 25.7.1942 Since the original Mortgage of 1086 ME became time-barred by non-redemption, the Mortgagee-Neelan Kumaran perfected title executed a Sale Deed to the First Defendant Kunjamma on 7.2.1972 with a recital to redeem the Mortgage obtained by Nagamony. The First Defendant herein as Plaintiff and Decree-holder in O.S. No.305 of 1972 applied for passing Final Decree under I.A. No. 1401 of 1977 and a Final Decree was passed for an indefinite portion Aggrieved by it the First Defendant preferred A.S. No. 148 of 1982 which gave a Decree for 1 4th excluding the western ?th share. Again the First Defendant preferred S.A. No. 1199 of 1984 which remanded the same to the Trial Court on 17.6.1995. In the meantime the Plaintiff filed another Suit in O.S. No.286 of 1982 and obtained an Injunction Order which was dismissed subsequently for default. The Application to restore the same was also dismissed. Even after the remand, the Trial Court followed the erroneous view and the First Defendant herein again preferred. A.S. No.83 of 1998 and when it stood posted for arguments in the list was dismissed for default on 13.2.2003. Later they sought the same to be restored which was also dismissed. Hence, C.M.A. No. 64 of 2003 is pending before the District and Sessions Court, Nagercoil, stands posted to 21.11.2006.

Defendants derived the title from the Preliminary Decree and Final Decree passed in O.S. No. 432 of 1967. But the Plaint itself he stated that the Final Decree passed in O.S. No.432 of 1967 dated 4.12.1973 became time-barred. Plaintiff suppressed the material facts that there was a Suit between the present Defendants and Plaintiff in O.S. No.305 of 1972. In which Preliminary Decree was passed in favour of the present Defendants. The above said Suit 1086 ME Mortgage became time-barred. Further against the Suit in O.S. No.305 of 1972. and Appeal has been preferred in A.S. No. 148 of 1982. Again the First Defendant preferred Second Appeal No. 1199 of 1984 which remanded the same to the Trial Court on 17.6.1995. The First Defendant again preferred the A.S. No 83 of 1998 and against that Order he preferred a C.M.A. No. 64 of 2003 before the District and Sessions Court Nagercoil. The above said case is posted for hearing on 21.11.2006. For the reasons stated above many Suits were instituted between the present Plaintiff and Defendants regarding the same Suit property in various Courts. Now C.M.A. No.64 of 2003 is pending before the District Court, Nagercoil. It the rights of the Plaintiff is decided in the Suit it will affect the findings and will be passed in C.M.A. No.64 of 2003 Plaintiff has not proved his case that he is the owner of the Suit property. So, Plaintiff is not entitled to Decree for declaration of owner as in the Suit property. He answered the Issue Nos. 1 & 2 accordingly.

Issue Nos. 3 and 4.

Plaintiff and Defendants admitted that present Suit property was a Suit property in O.S. No.432 of 1967. Plaintiff claimed right through the Final Decree proceeding in O.S. No.432 of 1967 For which Plaintiff marked Ex.A12, as a Final Decree order with Plan. On perusal of the O.S. No. 432 of 1967 the Suit property is comprised in O.Sy. No.2190 of Punathuvilai Puraidom. But present Suit Plaintiff has instituted the Suit for declaration of title and possession over the Suit property comprised in O.Sy. No 2170. The Second Defendant in the Suit was examined stating that Suit property Survey Number is different. DW1 deposed in his evidence stating that.

"mjd;gpd; ,t; cz;ikfis kiwj;J itj;J nkw;go tHf;fpYs;s 1k; thjp kl;Lk; xnu thjpahf ,t;tHf;fpy; nkw;go ,Wjpepiy jPh;g;ghizapy; fhQqk; ,uz;lhtJ fz;lk; brhj;ij mth; bgahpy; kl;Lk; tpsk;g[if bra;at[k; cWj;Jf;fl;lis tH'';ft[k; nfhhp giHa g[y vz; 2170 vd;W jtwhf fhl;o ,t;tHf;if jhf;fy; bra;Js;shh;/ Mdhy; jhthr; brhj;jpd; r/vz;/2190 MFk;"

So, Plaintiff claimed a Suit property in wrong Survey No. 2170 instead of 2190. Further regarding the Suit property already O.S. No. 305 of 1972 was decided in favour of First Defendant declared 1086 ME Mortgage was time-barred. Relating to the O.S. No.305 of 1972, C.M.A. No.64 of 2003 is pending before the District Court, Nagercoil. So, Plaintiff is not in possession and enjoyment of the present Suit property in the Suit. Hence, he holds that, Plaintiff is not in possession and enjoyment of the Suit property and also he is not entitled to get Injunction against the Defendants in the Suit. He decided the Issue Nos. 3 & 4 accordingly.

Issue No.5: For the reasons stated as above, he hold that Plaintiff is not the owner of the Suit property. Plaintiff is not entitled to declare himself as the Owner of the Suit property in this Suit. Further, he holds that Plaintiff is not in possession of the Suit property and he is not entitled for Injunction against these Defendants in this Suit.

In the result, this Suit is dismissed

Aggrieved by the dismissal of the said Suit the Plaintiff has filed an Appeal in A.S. No. 135 of 2006 on the file of the II Additional Subordinate Court, Nagercoil. The learned Judge after hearing the arguments from both side learned Counsel and on perusing the Trial Court Judgment, the Appeal Suit has been dismissed on merits and confirmed the Trial Court Judgment.

The highly competent Counsel Mr. M.P. Senthil appearing for the Appellants submits that the Appellant had expired hence, the Legal Heirs of the First Appellant, Appellants 2 to 5 are brought on records as the Appellants. Further, the learned Counsel submits that the Suit Schedule mentioned property was allotted to and in favour of the Plaintiff and three others namely Kumaraswamy, Ganapathy and Swamammal as per the Partition Decree and Judgment passed in O.S. No.432 of 1967 on the file of District Munsif Court Kuzhithurai. However, the Plaintiff alone was in possession and enjoyment of the said property. The Plaintiff had also obtained Decree for Redemption for the Mortgage rights of the Plaintiff and 3 others. The Plaintiff had redeemed the registered Mortgage pertaining to the Suit Schedule mentioned property. The said Mortgage Deed had been registered as Document bearing No. 6089 of 1960 on the file of Sub-Registrar''s office, Munchirai. Further, the other 3 Decree-holders namely Kumaraswamy, Ganapathy and Swamammal have not delivered their property as per the Decree passed in O.S. No.432 of 1967 dated 4.12.1973, since the limitation period was over for executing the said Decree. The Plaintiff and others having Mortgage rights over the said property The Plaintiffs father Joseph had purchased the said property under the Sale Deed dated 5.1.1942, after his lifetime the Plaintiff has succeeded the property as the absolute Owner.

The very competent Counsel further submits that the Plaintiff possessing valid Title Deeds over the Schedule mentioned property and Patta also had been granted in the name of the Plaintiff and has been remitting mandatory tax to the Statutory Authorities since 1973 onwards. Under the circumstances, the First Defendant namely Kunjammal Nadachi had filed a Civil Suit in O.S. No.305 of 1972 on the file of the District Munsif Court, Kuzhithurai and claimed Civil rights over the Suit Schedule mentioned property on the basis of a Mortgage. The same was dismissed. Against the dismissal of the said Suit, the First Defendant herein had filed an Appeal Suit No. 83 of 1988 on the file of the Sub-Court, Kuzhithurai and the same was dismissed. Thereafter, the First Defendant had filed another Suit for the same property for Partition in OS. No.311 of 1975 on the file of District Munsif Court, Kuzhithurai and the said Suit was dismissed on 16.10.2000 which became final since no Appeal was filed. Under the circumstances, the defendants had attempted to remove the studying fee from the Suit Schedule mentioned property on 20.12.2014, the same was prevailed upon by the Plaintiff. The very competent Counsel further submits that it is an admitted fact that the Plaintiff is in physical possession and enjoying the same without any indifference as absolute owner of the property. In order to prove the ownership, after possession and enjoyment, the Plaintiff had marked relevant documents before the Trial Court as Exhibits namely. Sale Deed. Release Deed, copy of the Judgment in O.S. No. 311 of 1975, the copy of the Final Decree along with Sketch in O.S. No.432 of 1967. etc. Based on the documentary proof, the Plaintiff had adduced evidence and the same was confirmed through PW2''s evidence.

The learned Counsel further submits that the Plaintiff''s predecessor had obtained a Release Deed for redemption. The competent Revenue Authorities had issued Patta in the name of the Plaintiff, who is also remitting tax to the Statutory Authorities, as such the Plaintiff is the absolute Owner of the property and he is in physical possession, therefore, the Plaintiff is entitled to receive remedy for a Declaration and Permanent Injunction restraining the Defendants/Respondents herein. The same was not considered by the Trial Court as well as the First Appellate Court. Hence, the highly competent Counsel entreats the Court to allow the above Second Appeal and set aside the Judgments of the Court below.

The very Competent Counsel Mr. N. Mohamed Asif appearing for the Respondents submits that the Plaintiff had filed a Civil Suit in O.S. No. 88 of 1998 on the file of the District Munsif Court, for demarcation along with others as per the Final Decree passed in O.S. No. 432 of 1967 against the Defendants, the same was resisted by the Defendants, finally the Plaintiff had withdrawn the said Suit as not pressed.

The very competent Counsel further submits that one Isakkiel Nadar had filed a Civil Suit in O.S. No. 432 of 1967 and claimed Partition and separate possession of his share from the entire extent comprising of 1 acre 30 cents in Pld Survey No.2190, situated at Punathuvilai village and it has been decreed on 22.12.1971. As per the Decree, a share of ? was given to Kumaraswamy i.e. the husband of the First Defendant. The other quarter (?) share was allotted to Nagamony Nadar, Swamammal and Ganapathy. The remaining ? share was allotted to other Defendants. As such, the Plaintiff cannot claim the Suit property as per the Release Deed dated 26.11.1960 since the Judicial Decree dated 22.12.1971 is existing over the Suit Schedule mentioned property. The Plaintiff is not in physical possession of the property Actually, the Plaintiff''s predecessor executed a Mortgage to and in favour of Neelan Kumaran dated 8.2.1086 ME which was followed by a Purakkadom on 27.6.1936. The Mortgagee-Neelan Kumaran expired, hence, his sons executed a Sub-Mortgage to Kunchupillai and his wife Chempakakutti dated 27.1.1031. The said Sub-Mortgages had executed Otti to Nagamony on 25.7.1942. The original Mortgage dated 24.9.1910 had expired due to non-redemption, therefore, the original Mortgagee had possessed Title Deeds and had executed a Sale Deed to and in favour of Kunjamma. the First Defendant herein on 7.2.1972.

The highly competent Counsel further submits that the father of the Plaintiff had executed a Mortgage and the same became time-barred. Hence, the First Defendant had filed a Suit in O.S. No.305 of 1972 against the Plaintiff herein and others for redemption. The First Defendant herein had obtained Decree pm 19.8.1977 wherein, it has been expressed that the Mortgage dated 8 2.1086 became time-barred. The present Plaintiff filed another Suit in O.S. No 515 of 1972, subsequently, both Suits were tried together, subsequently the Appeal Suit was also dismissed but the Plaintiff''s Suit in O.S. No. 302 of 1972 became conclusive and biding on the present Plaintiff since, it has superseded the Decree passed in O.S. No 432 of 1967 dated 24.12.1971. Therefore, the Plaintiff cannot claim any rights over the Suit Schedule mentioned property as per the Decree passed in O.S. No.432 of 1967 dated 24.12.1971 since, it became defunct and cannot be implemented upon Further, the First Defendant had obtained a Final Decree in I.A. No. 1401 of 1977 in O.S. No.305 of 1972 The said Final Decree was passed excluding the western portion of lands to an extent of 32.14 cents based on the Final Decree passed in O.S. No 432 of 1967 Against the said Decree, the First Defendant had filed an Appeal Suit No. 148 of 1982. In the meantime, the Plaintiff had filed an Original Suit No. 286 of 1982 and in view of the Interim Injunction passed therein the Decree is modified to ? share from the total extent excluding 32.14 cents The First Defendant had filed a Second Appeal in the meantime the Suit in O.S. No.286 of 1982 was dismissed for default subsequently the same was not restored

The learned Counsel further submits that this Court had remanded the Second Appeal No. 119 of 1984, the Trial Court after the remand went against the spirit of the above said Remand Order again forwarded the erroneous discussion in A.S. No. 148 of 1982. This paved the way for preparing an Appeal Suit No. 83 of 1998 was dismissed for default, hence, the First Defendant had filed C.M. A. No. 64 of 2003 on the file of the District and Sessions Court. Nagercoil, wherein the Plaintiff is a Respondent which is still pending. Further, the father of the Plaintiff is not a Owner of the property as per the Scheduled dated 5.1.1942, since the executor did not possess marketable Deeds to carry the said property to the father of the Plaintiff Therefore, the Plaintiff has absolutely no rights for claiming the Suit Schedule mentioned property. On the side of the Defendant, two Witnesses were examined and 15 Documents were marked out of which the vital documents namely Sitta and Adangal dated 6.10.2004 clearly reveals that the Defendants are in possession besides the Land Tax had been remitted to the Statutory Authorities and it had been marked as Exhibit B14. The Encumbrance Certificate also discloses that the Suit Schedule mentioned property stands in the name of the First Defendant The Trial Court had framed 5 relevant issues and decided the case against the Plaintiff.

The learned Counsel further submits that the First Defendant had filed a Civil Suit in O.S No.305 of 1974, the same was decreed on her favour Consequently, declared that the Mortgage dated 24.9.1999 was time-barred. Against the said Judgment and Decree, now an Appeal is pending. On the basis of a Judicial Decree which is existing in favour of the First Defendant, the Trial Court dismissed the Plaintiff''s Suit, the same was confirmed by the First Appellate Court on merits. Hence, the learned Counsel entreats the Court to dismiss the above Second Appeal.

From the above discussion, this Court is of the view:

(1) The Plaintiff has stated that he is in physical possession from the year 1973 onwards as absolute owner of the property and had stated that the Patta stands in his name. In order to prove the same, the Plaintiff had not marked Patta, tax for the relevant period, besides in order to prove his possession in the Suit Schedule mentioned property, he had not produced any Revenue records or any relevant records especially Sitta and Adangal which are the vital documents to prove the occupation, as such it is confirmed that the Plaintiff is not in physical possession

(2) The Plaintiff had stated that on 20.12.2004, the Defendants had trespassed into the Suit Schedule mentioned property and attempted to cut the standing trees thereon, which is of a Criminal nature, the same was not complained before the nearest Police Station, therefore, for granting Interim Injunction, there is no prima facie case.

(3) The Plaintiffs had not produced any adequate valid Title Deeds for claiming ownership and enjoyment over the Suit Schedule mentioned property. In the absence of market value Title Deeds, the Suit was dismissed by the Trial Court and it was confirmed by the First Appellate Court. Hence, this Court declines to interfere with the Decree and Judgment passed by the Courts below.

Considering the facts and circumstances of the case and arguments advanced by the learned Counsel on either side and on perusing the typed set of papers and the views of this Court as expressed in (1) to (3) as above, the above Second Appeal is dismissed. Consequently, the Decree and Judgment passed in A.S. No. 135 of 2006 on the file of Camp Court at Kuzhithurai dated 1.3.2013, confirming the Judgment and Decree passed in O.S. No. 7 of 2005 on the file of the Principal District Munsif Court. Kuzhithurai dated 15.11.2006 is confirmed.

In the result, the above Second Appeal is dismissed. No costs Consequently, connected Miscellaneous Petitions are closed.