P. Veerana Thevar vs Karuppayi and Others

Ganapatia Pillai, J.—The appellant in this second appeal was the plaintiff in a suit for redemption of a usufructuary mortgage, Ex. A-4 of the

year 1917. His case was that the mortgaged property belonged to one Mayandi Thevar who had mortgaged it usufructuarily in favour of one

Chinna Thevar for Rs. 125 in 1917 and he was the purchaser of the equity of redemption. This Chinna Thevar is the deceased husband of the first

defendant in the suit. In 1927 the mortgagee Chinna Thevar executed a sub-othi Ex. A-5 of the suit property in favour of his younger brother the

second defendant. The third defendant in the suit is a still younger brother of the mortgagee under Ex. A-4. The main contest was raised by the

third defendant who contended that he was the owner of the property in dispute having acquired it in an oral partition in his family and also by

adverse possession.

The truth and genuineness of the mortgages Exs. A-4 and A-5 were also put in issue. The trial Court found that Exs. A-4 and A-5 were true and

genuine but on the question of paramount title pleaded by the third defendant it found against him because it specifically held that neither the oral

partition nor the adverse possession pleaded by him was made out. But unfortunately the trial Court dismissed the suit without giving a decree for

redemption at least against defendants 1 and 2 when it had held that the mortgages Exs, A-4 and A-5 were true and genuine.

In the lower appellate Court the learned Subordinate Judge agreed with the finding of the trial Court as regards the truth and genuineness of Exs.

A-4 and A-5 but he differed from the trial Court on the question of adverse possession. According to the learned Subordinate Judge, the third

defendant had prescribed title by adverse possession and for this conclusion he relied upon the fact that plaintiff had not proved possession of the

mortgagee within 12 years before suit. The Full Bench decision in The Official Receiver of East Godavari Vs. Chava Govindaraju and Another, ,

no doubt lays down that in a suit for ejectment the plaintiff must establish possession within 12 years before suit to show that he has a subsisting

title. That decision has no relevance whatsoever to the question which arose to be decided before the lower appellate Court.

A person setting up acquisition of title by adverse possession in the case of a property in the possession of the mortgagee according to the Full

Bench decision in Periya Aiya Ambalam v. Shunmugasundaram, ILR (1914) Mad 903: AIR 1914 Mad 334 2 (B), must show knowledge of such

possession by the mortgagor and unless the requisite length of possession is established as also the fact that this possession is open, adverse and to

the knowledge of the mortgagor, no trespasser can claim title by adverse possession against a mortgagor. The finding of the trial Court in this case

that the third defendant had not acquired title by adverse possession is based upon good reasons as could be seen from the fact that the second

defendant and the husband of the first defendant were both elder brothers of the third defendant.

To say that these elder brothers took othis of their own family property in 1917 and 1927 will be almost absurd. Even if Ex. A-4 is said to be a

document which was executed without the knowledge of the husband of the first defendant, Ex. A-5 clinches the issue since the first defendant''s

husband himself has executed it in favour of his own brother the second defendant in 1927. It is nowhere suggested in the evidence that these two

brothers and the third defendant were inimically disposed towards each other or that they had any motive to injure the third defendant. Under the

circumstances the finding of the appellate Judge on the question of adverse possession is clearly wrong and has to be set aside.

The second appeal is therefore allowed and there will be a preliminary decree for redemption of the mortgage covered by Ex. A-4. The

appellant will have his costs in all the Courts payable by defendants and 3. No leave.