Venkatachala Gounder vs Periyasami Gounder

P. Thangavel, J.—Those appeals are filed against the common judgment and decree passed in A.S. Nos. 21 of 1983 and 35 of 1983 on 22.12.1983 by the learned Subordinate Judge, Tiruppur. The plaintiff - Venkatachala Gounder in O.S.No.476 of 1980 has come forward with the suit for permanent injunction restraining the defendant-Periasamy Gounder from interfering with his peaceful possession and enjoyment of the suit property on the following grounds:- The suit property has come to be owned by the plaintiff as per the decision of partition decree in I.A. No. 1031 of 1969 in O.S. No.365 of 1965 on the file of the learned Subordinate Judge, Coimbatore. The plaintiff has been in possession and enjoyment of the suit property in his own right and the defendant has no right or title or possession in the said property. Since the defendant was unsuccessful in purchasing the above said property, he is interfering with the possession and enjoyment of the plaintiff and therefore, the plaintiff has come forward with the suit as mentioned above.

The defendant-Periyasamy Gounder has filed the suit in O.S. No. 939 of 1980 on the file of the learned District Munsif, Tiruppur for declaration of the title to the suit property, for partition and separate possession of 2/5th share and for past and future mesne profits, resisting the claim made by Venkatachala Gounder on the following grounds:- Venkatachala Gounder the plaintiff in O.S. No. 476 of 1980 did not became the owner of the suit property as per the partition decree dated 28.8.1962 and the above said decree cannot bind defendant Periasamy Gounder, since Periasamy Gounder and his predecessor-in-title were not parties to the proceedings in O.S. No. 301 of 1965. The defendant - Periyasamy Gounder is entitled to 1.74 acres out of 4.35 acres in S.No.,4/1 in Nallur Village, Palladam Taluk, by virtue of the Court auction purchase made by him in E.P.No.620 of 1967 in O.S.No.150 of 1967 on the file of the District Munsif, Tiruppur. He took symbolic possession of the above suit property through Court in E.A. No. 2158 of 1969 in E.P.No.620 of 1967 in O.S. No. 150 of 1967 on the file of the above said Court. Since the defendant is deemed to be in possession of 1.74 acres referred to above, the plaintiff Venkatachala Gounder has no right to ask for the relief of permanent injunction as prayed for in the suit in O.S. No. 476 of 1980. On the other hand, according to the defendant, who is the plaintiff in O.S.No.939 of 1980, he is entitled to the relief of declaration and permanent injunction as well as partition and separate possession of 2/5th share out of 4.35 acres in S.No.4/1, Nallur Village, Palladam Taluk, apart from the past and future mesne profits, as prayed for in the suit filed by the defendant as plaintiff in O.S. No. 939 of 1980.

After considering the material evidence placed before the trial Court, the learned District Munsif has come to the conclusion that the property measuring 1.74 acres out of 4.35 acres in S.No.4/1, Nallur Village, Palladam Taluk has been in possession and enjoyment of the plaintiff for about 40 years, that the defendant-Periasamy Gounder or his predecessor-in-title has not redeemed the usufructuary mortgage with regard to that property, which has been in existence in favour of Venkatachala Gounder at any time before the expiry of statutory period and that therefore, the plaintiff Venkatachala Gounder is entitled to the relief of permanent injunction as prayed for in O.S. No. 476/80 against Periyasamy Gounder, even though Periasaray Gounder has purchased the said property in Court auction and had taken symbolic possession before filing the suit in O.S.No.939 of 1980 within the period of 12 years from the date of purchase of the above said 1.74 acres out of 4.35 acres in S.No.4/1 Nallur Village, Palladam Taluk, through Court as mentioned above. In view of the above said reason, the suit in O.S. No. 939 of 1980 filed by the plaintiff for the relief of declaration and permanent injunction, partition and separate possession of 2/5th share and past and future mesne profits, was dismissed by the trial Court. Aggrieved against the common judgment and decree in O.S.Nos.476 of 1980 and 939 of 1980 dated 29.11.1982 on the file of the learned District Munsif, Tiruppur, the defendant in O.S.No.476 of 1980, who is the plaintiff of O.S. No. of 1980 has preferred the appeals in A.S.Nos.21 of 1983 and 35 of 1983 on the file of the learned Subordinate Judge, Tiruppur. The learned Subordinate Judge, Tiruppur after considering the material evidence placed before the court has come to the conclusion that the appellant Periyasamy Gounder had purchased 2/5th share in court auction on 10.9.1968. which was confirmed on 15.11.1968 by the competent Court, that the appellant had taken symbolical possession of the said 1.74 acres out of 4.35 acres in S.No.4/1 Nallur Village, Palladam Taluk on 9.1.1970 and the same was recorded by the Court on 23.1.1970, that the appellant is deemed to be in possession of the about said property along with the plaintiff, that therefore, the plaintiff is entitled to the relief of declaration and permanent injunction as well as partition and separate possession of 2/5th share. For coming to the above said conclusion, the first appellate Court had also found that the compromise decree recorded between Venkatachala Gounder''s brother, Kuppanda Gounder and the plaintiff - Venkatachala Gounder to which the appellant is not a party, is not binding on the appellant and that the defendant, an agriculturist is entitled to the benefit of Act of 1938 i.e. Tamil Nadu Debt Relief Act and that the entire mortgage debt is deemed to have been discharged, since the plaintiff - Venkatachala Gounder has been in possession of the usufructuary mortgaged suit property for over 30 years. Therefore, the first appellate Court dismissed the suit in O.S.No.476 of 1980 and decreed the suit in O.S. 939 of 1980 for the relief of declaration and injunction as well as partition and separate possession of 2/5th share. But the appellate Court has held that the appellant is not entitled to claim past and future mesne profits as prayed for in the suit. Aggrieved against the common judgment and decree in A.S.Nos.21 of 1983 and 35 of 1983 dated 22.12.1983, Venkatachala Gounder - Plaintiff in O.S.No.476 of 1980 and defendant in O.S.No.939 of 1980, as appellant has come forward with these appeals.

The only substantial question of law that arises for consideration in those two appeals, before this Court is, as to whether, on the facts and circumstances of the case, the lower Court is right in holding that the mortgage is automatically discharged under the Debt Relief Act especially even when there is no pleadings, issue and evidence for the same.

The plaintiff in O.S.No.476 of 1980 Venkatachala Gounder, who is the defendant in O.S.No.939 of 1980 on the file of the learned District Munsif, Tiruppur was examined as P.W.1 while the defendant - Periyasamy Gounder in O.S. No. 476 of 1980, who is the plaintiff in O.S.No.939 of 1980 referred to above was examined as D.W.1 before the trial Court. The plaintiff Venkatachala Gounder, who is the appellant, hereinafter will be called as appellant and Periyasamy Gounder, who is the respondent in this appeal, will be referred to as respondent for the purpose of convenience. The fact remains that 1.74 acres out of 4.35 acres of Nanja lands in S. No. 4/1, Nallur Village, Palladam Taluk belonged to one Nachimuthu Gounder towards his 2/5th share and the said Nachimuthu Gounder usufructuary mortgaged the above said 1.74 acres for Rs.300/- in favour of one Karumanda Gounder. The above said Karumanda Gounder enjoyed the above said property mortgaged to him usufructuarily for about 16 years and made over the above said usufructuary mortgage in favour of Kuppanda Gounder, the elder brother of the appellant on 28.4.1943 as seen in Ex.A-1 and Kuppanda Gounder was to be in possession of the above said 1.74 acres out of 4.35 acres of Nanja lands. It is evident from the case put forward by the appellant that there was a partition suit in O.S.No.365 of 1965 on the file of the learned Subordinate Judge, Coimbatore between the appellant and his brother and in that suit a compromise memo was filed and a compromise decree was passed in IA.No.1031 of 1969 in O.S.No.365 of 1965 on the file of the learned Subordinate Judge, Coimbatore. According to the appellant, the property, which is the subject matter of these appeals, was allotted in the compromise decree, which was marked as Ex.A-2 dated 23.8.1962. Ex.A-3 is the petition filed for recording the compromise on 28.8.1969. The compromise decree based on which the appellant claimed title to 1.74 acres out of 4.35 acres in S.No.4/1, Nallur Village, Palladam Taluk cannot bind the respondent, since neither the respondent nor his predecessor-in-title were parties to the above said proceedings, as contended by the learned Counsel for the respondent. The fact remains that the appellant is in possession of the demised property, in view of the usufructuary mortgage deed executed on 25.5.1927 by Nachimuthu Gounder in favour of Karumanda Gounder, who, in turn, assigned the mortgage in favour of Kuppanda Gounder, the brother of the appellant on 28.4.1943. The fact that the appellant is in possession of the demised property has also not been denied by the respondent. Therefore, it is evident that the appellant is in possession of the suit property, which was usufructuary mortgaged by its owner, Nachimuthu Gounder on 25.5.1927.

It is evident from the case put forward by the respondent that the above said Nachimuthu Gounder had borrowed loan from one Sait, who obtained a decree against the above said Nachimuthu Gounder, that the above said decree was made over to Rackiappa Gounder, who in turn had brought the 2/5th share of Nachimuthu Gounder in S.No. 4/1 measuring 4.35 acres, that is 1.74 acres in court auction for realising the decree debt that the respondent herein had purchased the above said 1.74 acres out of 4.35 acres, namely 2/5th share in Court auction in E.P.No.2158 of 1969 in O.S. No. 150 of 1967. On 10.9.1968, as seen in Exs.B-1 and B-2 and that he look symbolic possession of the above said site of 1.74 acres out of 4.35 acres on 9.1.1970, as seen in the possession receipt, Ex.B-3 and the report of the belief, as seen in Ex.B-4. To support the alleged fact of taking symbolic possession by the respondent through Court, the respondent has examined as DW2, Muthusamy Gounder, who is said to have attested the possession receipt, at the time of alleged delivery of the suit property symbolically on 9.1.1970. There can be no doubt that the respondent had purchased Nanja lands measuring 1.74 acres out of 4.35 acres in S.No.4/1 at Nallur Village, Palladam Taluk in the Court auction, as mentioned above. But the fact remains that the respondent was not put in actual possession if the suit property at the time of filing of suit in O.S. No. 939 of 1980 for the relief sought for in the above said suit.

It is not in dispute that the mortgagor or the persons stepping into the shoes of mortgagor, has right to redeem the above said mortgage within 60 years from 25.5.1927 as the law of limitation stands at that time. But the above said limitation of 60 years was reduced to 30 years, admittedly after coming into force of the Limitation Act, 1963 (Act 36 of 1963) Learned Counsel for the respondent has not claimed that the mortgagor or the persons who are stepping into the shoes of the mortgagor had redeemed the mortgage within the period of 60 years from 25.5.1927 and had also not pleaded that the amended period of 30 years will not have application to the facts of the present case. Therefore, it is evident that the usufructuary mortgage deed executed by Nachimuthu Gounder has to be redeemed by him or by persons, who have stepped into the shoes of Nachimuthu Gounder within 30 years from 25.5.1927. But in this case, Nachimuthu Gounder or any other persons, who are stepping into the shoes of Nachimuthu Gounder had not redeemed the mortgage, within the above said period or at any time before filing the suit in O.S.No.939 of 1980 by the respondent as plaintiff for the relief sought for in the above said suit. Section 27 of the Limitation Act, 1963 would disclose that at the determination of the period thereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. In view of the above said position, the learned counsel for the appellant was right in contending that the right of Nachimuthu Gounder or persons claiming through him, namely the respondent herein had lost the right of instituting a suit for possession after expiry of 30 years from the date of mortgage namely 25.5.1927. In view of the above said fact alone, the respondent, who is the plaintiff in O.S.No.939 of 1980 has to be non suited as rightly contended by the learned counsel for the appellant.

Learned Counsel for the respondent had attempted to establish that the respondent had not only purchased the property in Court auction on 10.9,1968, but also took symbolic possession on 9.1.1970 and therefore, he has get a right in the suit property jointly with the appellant. In view of the amendment of the Limitation Act curtailing the period for redemption from 60 years to 30 years and in view of the fact that the respondent has come forward with the suit filed in O.S.No.939 of 1980 in the year 1980 only for partition and separate possession, the right of redeem the mortgaged property has already been extinguished. Since the respondent has purchased the above said property in Court auction only on 10.9.1968, which was subsequent to the Limitation Act, 1963 came into force, there was no salable interest available for Nachimuthu Gounder in his 2/5th share of 1.74 acres out of 4.35 acres in S.No.4/1 Nallur Village, Palladam Taluk, at the time of auctioning the said property in Court auction. The respondent, who had purchased the property in Court auction ought to have taken every effort to verify the title of Nachimuthu Gounder in the suit property at the time of purchase, and the failure on his part has to be blamed for himself and not with any body else. Learned Counsel for the respondent further contends that the property purchased by the respondent in Court auction need not necessarily be the usufructuary mortgaged property and might be from and out of the remaining 3/5th share out of 4.35 acres in S.No. 4/1, Nallur Village, Palladam Taluk and therefore, the relief sought for by the respondent as plaintiff in the suit in O.S.No.939 of 1980, cannot be denied with due respect to the learned counsel for the respondent, this Court is not able to agree with such contention, since no case has been pleaded in the pleadings in the plaint or written statement filed by him in both the suits and no evidence has been let in before the trial Court and no arguments had also been advanced before the Courts below. The respondent is at liberty to work out his remedy if any available, elsewhere, and the arguments advanced by the learned counsel as mentioned above cannot be accepted. Therefore, the respondent cannot claim any right in the demised property, relying on the Court auction purchase made by him as mentioned above.

Learned Counsel for the respondent would contend that the respondent is a small farmer as defined under Act 4 of 1938 viz. Tamilnadu Debt Relief Act, that the appellant and his predecessor-in-title have been in possession and enjoyment of the demised property for over 30 years as usufructuary mortgage or his assignee and therefore, the debt due under which usufructuary mortgage is deemed to have been discharged. It is because of that, according to the learned counsel for the respondent, the first appellate Court has come to a conclusion, that the respondent, who has purchased the demised property in Court auction as mentioned above, is entitled to partition and separate possession, apart from the other reliefs as prayed for with regard to 2/5th share of Nachimuthu Gounder. As rightly contended by the learned Counsel for the appellant, there is no plea pleaded in the written statement in O.S.No.476 of 1980 or in the pleadings in O.S. No. 939 of 1980, that Nachimuthu Gounder or his successor-in-interest are small farmers coming within the definition of the "small farmer" as defined under the Act 4 of 1938 viz. the Tamil Nadu Debt Relief Act. No evidence was also let into the claim, the benefit of Act 4 of 1938 by the respondent. No issue has also been framed with regard to the above said point, before the trial court. If that be so, it is not known as to how the first appellate Court has come to the conclusion that the respondent is a small farmer entitled to the benefit of the Act 4 of 1938 and that the mortgage debt due under the usufructuary mortgage deed dated 25.5.1927 is deemed to have been discharged. The Apex Court in Banarsi Das v. Brig. Maharaja Sukhjit Singh and Another (AIR 1998 S.C. 179) has held as follows:-

"We find no impediment in the jurisdiction of the High Court in entertaining the Second Appeal in the present case in view of Cl. (c) of sub-section (1) of S. 41 of the Act. The first appellate Court clearly fell in error in coming to the conclusion that the sale deed (Exhibit D-1) was invalid without there being any issue to that effect and without the vendees in whose favour the sale deed was executed being parties to the suit. Again there was a clear error of jurisdiction committed by the first appellate Court when it gave a finding that ''Jamabandi'' was forged and fabricated when no such plea was raised by the plaintiff and there was no evidence to that effect. If we see the issues and the evidence on record, the conclusion is irresistible that there is no evidence to show that the plaintiff was in possession of the land or of his claim to be in possession being the son of Relu Ram and grandson of Ishar......The whole approach of the first appellate Court was based merely on suspicion and his possible bias against the second respondent then an evidence of which there was none and when there was no issue as well to support his findings. It was certainty the case where there was a substantial error or defect in the procedure as prescribed by the Code and the High Court was justified in entertaining the Second Appeal. Once having held that the Second Appeal was maintainable, the High Court was right in setting aside the judgment of the first Appellate Court as it was based on no evidence; was against the record; and was against the procedure prescribed by law."

The Madras High Court reported in the case Subramaniya Chettiyar. T.A. v. Babi Ammal & 4 others (1990 2 L.W. 1120) has held that in suit for recovery of money, if the defendant invoked the benefit of the Tamilnadu Debt Relief Act, the burden is on the defendant to prove that the defendant fell within the definition of "debtor" u/s 3(3) of the Act, that only after the said burden was discharged by the defendant, the onus will shift to the creditor - plaintiff to prove that the debtors fall within the exceptions mentioned in the proviso. It was also held that if the defendant failed to discharge the burden cast on him u/s 3(3) of the Tamil Nadu Debt Relief Act, the question of proving by the plaintiff that the defendant is coming within the exception does not arise. The decisions referred to above will lead to irresistible conclusion that the first appellate Court has committed a grave error in coming to the conclusion that the respondent is entitled to the benefit of the Tamil Nadu Debt Relief Act, (4 of 1938) and that the usufructuary mortgage debt due on the demised property is deemed; to have been discharged, due to the lapse of I 30 years, as prescribed under the above said Act. Therefore, this Court is not able to agree with the conclusion arrived at by the trial Court and there is no reason to interfere with the finding given by the learned trial judge that the respondent has no right to resist the suit of the appellant and seek the reliefs in the suit filed by him without redeeming the mortgage as contemplated under law. Accordingly, the common judgment and decree passed by the first appellate Court, granting the relief of declaration and permanent injunction as well as the partition and separate possession of 2/5th share in the suit property are set aside. Likewise, the denial of relief of permanent injunction sought for by the appellant is also set aside. The common judgment and decree granting the relief of permanent injunction in O.S.No.476 of 1980 and dismissing the suit in O.S.No.939 of 1980 by the trial court are restored. In the result, the second appeals are allowed. There will be no order as to costs in the circumstances of the case. Consequently, no order is necessary in C.M.P. No. 8868 of 1984.