Jeevarathinam v. Marimuthu & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :01.10.2009CORAM :THE HON’BLE MR. JUSTICE S.TAMILVANANS.A.No.97 of 2001Jeevarathinam .... Appellant (Defendant)vs.1. Marimuthu2. Patchaiammal3. Maragadam4. Anandayee .... Respondents(Plaintiffs)Second Appeal filed under Section 100 of the Code of CivilProcedure against the Judgment and Decree, dated 31.07.2000 made inA.S.No.76 of 1999 on the file of the Principal District Judge,Pondicherry.(O.S.NO.190 of 1996 dated 25.9.1998 on the file of theCourt of the III Additional District Munsif, Pondicherry)For Appellant: Mr.R.SubramanianFor respondents: Mr.R.Sunil Kumar J U D G M E N TThe second appeal has been preferred against the Judgment andDecree dated 31.07.2000 passed in A.S.No.76 of 1999 on the file ofthe Principal District Judge, Pondicherry, confirming the Judgmentand Decree, dated 25.09.1998 made in O.S.No.190 of 1996 on the fileof the III Additional District Munsif, Pondicherry.2. The defendant before the trial court is the appellantherein. The suit was filed by the respondents / plaintiffs before thetrial court, seeking a decree for redemption of usufructory mortgage,dated 25.09.1974 and the suit was decreed as prayed for.3. By Judgment and Decree, dated 25.09.1998, the trial courtgranted preliminary decree, which reads as follows :"1. That the defendant do pay into the court on orbefore the day of .... or any later date up towhich the time of payment may be extended by thecourt the said sum of Rs.4,000/- with interestat....% per annum on Rs.4,000/- from the date ofplaint till date of payment.2. That on such payment and on payment thereafterbefore such date as the court may fix of suchamount as the court may adjudge due in respect ofsuch costs of the suit and such costs, charges and https://hcservices.ecourts.gov.in/hcservices/ expenses as may be payable under Rule 10, togetherwith such subsequent interest may be payable underRule 11 of Order XXXIV of the First schedule tothe Code of Civil Procedure, 1908, the plaintiffshall bring into court all documents in hispossession or power relating to the mortgagedproperty in the plaint mentioned and all suchdocuments shall be delivered over to the defendantor to such person as he appoints and the plaintiffshall, if so required, reconvey or retransfer thesaid property free from the mortgage and to clearof and from all encumbrances created by theplaintiff or any person claiming under him or anyperson under whom he claims and shall, if sorequired deliver up to the defendant quite andpeaceful possession of the suit property. 3. And it is hereby further ordered and decreedthat in default of payment as aforesaid, theplaintiff may apply to the court or a final decreefor the sale of the mortgaged property and on suchapplication being made, the mortgaged property ora sufficient part there of shall be directed to besold and for the purpose of such sale theplaintiff shall produce before the court or suchofficer as it appoints all documents in hispossession or power relating to the mortgagedproperty.4. And it is hereby further ordered and decreedthat the money realised by such sale shall be paidinto the court and shall be duly applied (afterdeduction therefrom the expenses of the sale) inpayment of the amount payable to the plaintiffunder this decree and under any further ordersthat may be passed in this suit and in payment ofany amount which the court may adjudge due to theplaintiff in respect of such costs, charges andexpenses as may be payable under Rule 10 togetherwith such subsequent interest as may be payableunder Rule 11 of Order XXXIV of the First Scheduleto the Code of Civil Procedure, 1908 and thatbalance, if any shall be paid to the defendant orother persons entitled to receive the same.5. And it is hereby ordered and decreed that ifthe amount realised by such sale shall not besufficient for payment in full of the amountpayable to the plaintiff as aforesaid theplaintiff shall be at liberty (where such remedyis open to him under the term of his mortgage andis not barred by any law for the time being inforce) to apply for a personal decree against thedefendant for the amount of the balance: and thatthe parties are at liberty to apply to the courtfrom time to time as they may have occasion, andon such application or otherwise the court maygive such directions as it thinks fit. " https://hcservices.ecourts.gov.in/hcservices/

4. Aggrieved by the Judgment and Decree of the trial court,the defendant in the suit preferred appeal. The first appellatecourt, by its Judgment and Decree, dated 31.07.2000 made in A.S.No.76of 1999, confirmed the Judgment and Decree passed by the trial courtand dismissed the appeal without costs. Aggrieved by which, thissecond appeal has been preferred.5. This Second Appeal was admitted on the followingSubstantial Questions of Law :"1. Whether the learned appellate Judge was rightin casting the burden of proof on the appellantto show that the respondents have lost theirtitle to the property ?2. Whether the lower appellate court was right innot drawing an adverse inference against therespondents for non-production of the partitiondeed, dated 03.02.1988 ?"6. Substantial Question of Law No.1 : It is not in disputethat the respondents, as plaintiffs have filed the suit, seekingpreliminary decree for redemption of the usufructory mortgage,created as per mortgage deed, dated 25.09.1974 for a sum ofRs.4,000/-, the deed was executed by one Mannammal and the plaintiffsin favour of the appellant / defendant, which was registered asDocument No.1465-74 before the Sub-Registrar, Oulgaret and to directthe cancellation of the same, for delivery of possession of the suitproperty from the defendant and for costs. In the event of failure ofthe appellant / defendant to deliver possession of the suit property,pass final decree for delivery under Order XXXIV CPC.7. It is an admitted fact that the mortgaged property,agricultural lands, were originally belonged to the plaintiffs andtheir mother, late Mannammal. In order to discharge certainantecedent debts, the respondents and their mother had borrowed a sumof Rs.4,000/- from the appellant / defendant and created registeredusufructory mortgage, by executing the deed, dated 25.09.1974, underwhich the respondents / plaintiffs agreed to repay the principalamount after 7 years and the appellant was entrusted with thepossession and enjoyment of the property of the hypotheca in lieu ofinterest. In addition to the lands covered by the plaint schedule,the respondents had also executed another usufructory mortgage deed,dated 27.12.1974 in favour of the appellant in respect of certainother properties situated in Shanmugapuram in a different village.The respondents filed a petition under Section 83 of the Transfer ofProperty Act before the learned Principal District Munsif,Pondicherry in O.S.No..2 of 1993 in respect of the mortgage and wasready to repay the principal amount covered by the two mortgagedeeds, dated 25.09.1974 for Rs.4,000/- in respect of the suitproperty and the deed, dated 27.12.1974 for Rs.5,000/- in respect ofcertain other properties in Shanmugapuram, which is not covered bythe suit.8. The respondents filed a lodgment schedule before the trialcourt to deposit the entire amount of Rs.9,000/- towards the mortgagedebts. According to the respondents / plaintiffs, the appellant wasnot inclined to receive the mortgage amount, hand over the title https://hcservices.ecourts.gov.in/hcservices/ deeds and to surrender the vacant possession of the suit property ascontemplated under Section 83 of the Transfer of Property Act, hence,the suit was filed for redemption of mortgage.9. According to the respondents, the mortgage deed, dated25.09.1974 was jointly executed by Mrs.Mannammal and her sons,respondents 1 to 4 herein in favour of the appellant. Subsequently,Mannammal died and the respondents 1 to 4, being her legal heirs,filed the suit against the mortgagee, the appellant herein. It is notin dispute that Mannammal's husband having predeceased her, had lefthis wife Mannammal and the respondents herein alone as his legalheirs, prior to the death of Mannammal and after her death, therespondents / plaintiffs are her legal heirs. 10. In the written statement, the appellant herein had deniedthe plaint averments saying that the possession of the property wasnot handed over by the respondents / plaintiffs. According to him,the defence made by the respondents with regard to a sum ofRs.5,000/- borrowed from them was in respect of a different propertyand also stated that there is misjoinder of cause of action and onthat ground pleaded for dismissal of the suit, however, the saiddefence raised by the appellant / defendant was negatived by thecourts below. 11. In the written statement, the appellant has admitted thefact that the respondents / plaintiffs are the owners of the propertyand they had mortgaged the property along with their mother, but theappellant claimed title to the property by way of adverse possessionagainst the respondents / plaintiffs and further stated that therespondents / plaintiffs are not entitled for redemption of mortgageand on the plea, he prayed for the dismissal of the appeal. 12. After the trial, the trial Court found that there is causeof action for maintaining the suit and held that the plaintiffs haveestablished their case and accordingly, decreed the suit holding thatthe respondents / plaintiffs are entitled to the relief of redemptionof mortgage, as prayed for in the suit.13. Learned counsel appearing for the appellant / defendantsubmitted that the Courts below have shifted the burden on theappellant against law to establish that the respondents have losttheir title to the property and according to the appellant /defendant, the courts below could have drawn adverse inferenceagainst the respondents / plaintiffs for non-production of theirpartition deed.14. It is pertinent to note that the defendant, who wasexamined as D.W.1 has admitted the fact that Mannammal, the motherof the plaintiffs had created the suit mortgage along with therespondents / plaintiffs. It is not in dispute that the suitproperty had originally belonged to the father of the plaintiffs andafter his demise, the same was devolved uipon his wife, the deceasedManammal and his children, the plaintiffs herein and on 05.09.1974,they had mortgaged the property for a sum of Rs.4,000/- with theappellant / defendant, by way of executing the usufructory mortgageEx.A.1. According to the appellant / defendant, who was examined as https://hcservices.ecourts.gov.in/hcservices/ D.W.1, the mortgage could have been redeemed within seven years fromthe date of mortgage. As the same was not redeemed, the respondents /plaintiffs have no right to get a decree for redemption of mortgage.Learned counsel appearing for the respondents / plaintiffs submittedthat the defence raised by the appellant / defendant is not legallysustainable, since he has admitted that he is only a mortgagee andthe property belongs to the respondents / plaintiffs. As per themortgage deed, after the expiry of 7 years, the appellant / defendantcould file a suit in order to realise the amount advanced under themortgage deed and as mortgagee, he could have brought the propertyfor sale, in order to realise the amount paid as consideration underthe mortgage deed. However, being the mortgagee, the appellant /defendant is not legally entitled to claim title to the property, byway of adverse possession. It is a well settled proposition of lawthat once a mortgagee is always a mortgagee and the mortgagee cannotclaim title to the mortgaged property, merely on the ground of longpossession and enjoyment of the property, by way of adversepossession. Hence, the plea raised by the appellant / defendantagainst law is not sustainable. 15. The first substantial question of law is that the courtbelow have shifted the burden to establish that the respondents havelost their title to the property on the appellant / defendant. It isan admitted fact that the appellant / defendant is only a mortgageeand the respondents / plaintiffs are the owners of the suit property,that has been admitted by the appellant as mortgagee, hence, there isno question of shifting the burden on the appellant. Being mortgagee,the appellant cannot claim title to the property, by way of adversepossession. Having admitted the title of Mannammal and theplaintiffs, the appellant / defendant accepted the mortgage createdby them, hence, it is not open to the appellant / defendant todispute the title of the respondents / plaintiffs to the property.When they are ready and willing to redeem the mortgage, the appellant/ defendant as mortgagee had no other option, except to get back themoney advanced by him and hand over the possession of the property,by way of cancelling the mortgage. The appellant / defendant is inpossession and enjoyment of the property in lieu of interest payableto him, hence, he is only a mortgagee and he cannot claim any otherright, except the mortgagee of the property.16. Considering the well settled legal position, as once amortgagee is always a mortgagee and also on the admitted facts, I amof the view that the courts below have not shifted the burden on theappellant / defendant, as stated by the appellant / defendant, sincethe mortgagee cannot claim title to the property by way of adversepossession. Accordingly, the first substantial question of law isdecided against the appellant / defendant and in favour of therespondents.17. Substantial Question of Law No.2 : It is an admitted factthat the appellant / defendant was only a mortgagee and the suitproperty was admittedly owned by Poongavanam, father of therespondents / plaintiffs and after his demise, the property devolvedupon his wife Mannammal and the respondents / plaintiffs, being hislegal heirs and after the demise of Mannammal, only the respondents https://hcservices.ecourts.gov.in/hcservices/ herein became the absolute owners of the property and that had beenmortgaged by them along with their mother. 18. When the mortgage is subsisting, the appellant / defendantremains only a mortgagee and he cannot claim title to the mortgagedproperty, by way of adverse possession. The non-production of thealleged partition deed dated 03.02.1988 has no relevance in thiscase, since the appellant / defendant as mortgagee has admitted thetitle of the respondents / plaintiffs, by accepting the mortgagecreated by the respondents and their mother. Appellant, being a partyto the mortgage deed, Ex.A.1 cannot dispute the document and thetitle of the respondents / plaintiffs. 19. As contemplated under Section 58 of the Indian Evidence,Act, it is clear that admission needs no proof. In the instant case,the appellant / defendant has admitted the title of the respondents /plaintiffs, being the mortgagee, hence, he cannot made anunsustainable claim by disputing the title of the respondents /plaintiffs and ask the court to draw adverse inference on account ofthe non-production of the alleged partition deed of the respondents /plaintiffs. Being the mortgagee under Ex.A.1, the appellant islegally estopped from disputing the title of the respondents /plaintiffs to the suit property, hence, the appellant / defendantcannot raise a defence, based on his plea of non-production of thealleged partition deed of the respondents / plaintiffs and alsoaskthe court to draw adverse inference on the ground of non-production of a partition deed, hence, the second substantialquestion of law is also decided against the appellant / defendant andin favour of the respondents / plaintiffs. 20. In the decision, T.Anjanappa vs. Somalingappa and anotherreported in 2006 (7) SCC 570 : 2007 (7) MLJ 911, the Hon'ble ApexCourt has held that adverse possession really means the hostilepossession, which is expressly or impliedly in denial of title of thetrue owner and in order to constitute adverse possession, thepossession proved must be adequate in continuity, in publicity and inextent so as to show that it is adverse to the true owner for astatutory period. The Hon'ble Apex Court has held in paragraph 22 asthus : "22. It is well-recognised proposition of law thatmere possession however long does not necessarilymean that it is adverse to the true owner. Adversepossession really means the hostile possession,which is expressly or impliedly in denial of titleof the true owner and in order to constituteadverse possession, the possession proved must beadequate in continuity, in publicity and in extentso as to show that it is adverse to the true owner.The classical requirements of acquisition of titleby adverse possession are that such possession indenial of the true owner's title must be peaceful,open and continuous. The possession must be openand hostile enough to be capable of being known bythe parties interested in the property, though itis not necessary that there should be evidence of https://hcservices.ecourts.gov.in/hcservices/ the adverse possessor actually informing the realowner of the former's hostile action."21. In the decision, Annakili vs. A.Vedanayagam and others,reported in 2007 (6) MLJ 1494 : 2008 (1) LW 69 (SC), the Hon'ble ApexCourt has formulated the principles to ascertain adverse possessionat page number 1500 in the decision reported in MLJ as follows :"22. Claim by adverse possession has two elements :(1) the possession of the defendant should becomeadverse to the plaintiff; and (2) the defendant mustcontinue to remain in possession for a period of 12years thereafter. Animus possidendi as is well knownis a requisite ingredient of adverse possession. Itis now a well-settled principle of law that merepossession of the land would not ripen intopossessory title for the said purpose. Possessormust have animus possidendi and hold the landadverse to the title of the true owner. For the saidpurpose, not only animus possidendi must be shown toexist, but the same must be shown to exist at thecommencement of the possession. He must continue inthe said capacity for the period prescribed underthe Limitation Act. Mere long possession, it istrite, for a period of more than 12 years withoutanything more does not ripen into a title."22. As per the ruling of the Hon'ble Supreme Court of India,claim by adverse possession has two elements (1) that the possessionof the defendant who claims adverse possession should have becomeadverse to the right of the plaintiff and (2) the defendant mustcontinued to remain in possession for a period of 12 yearsthereafter. To claim adverse possession, the possession must haveanimus possidendi, hence, the mortgagee in possession and enjoymentof an immovable property under an usufructory mortgage may havepossidendi as mortgagee, however, that would not be animuspossidendi, since the mortagee is in possession of the property, byvirtue of the fact that he got the right as mortgagee, Similarly, atenant, lessee, licensee or permissive occupier to the propertycannot claim, so long as they enjoy the property in respectivecapacity. 23. It is well settled that the person, who claims adversepossession should plead and establish his claim in the manner knownto law. In the instant case, the appellant got the possession andenjoyment of the immovable property by virtue of the mortgage deedmarked as Ex.A.1. He has not specifically stated what date or period.There is no relationship of mortagee and mortgagor between himselfand the respondents. There is no evidence to show that theappellant / defendant is in possession and enjoyment of the propertyfor a period of 12 years having animus possidendi. There is noevidence to show that the relationship between the appellant /defendant and the respondents / plaintiffs came to an end asmortgagee and mortgagors at any point of time. In such circumstances,it can be legally construed that the appellant / defendant has noanimus possidendi at any point of time. Even in the case of anyanimus possidendi, the appellant, who is claiming title by way of https://hcservices.ecourts.gov.in/hcservices/ adverse possession has to establish that the animus possidendienjoyed by him is for a period of 12 years, for which there is noevidence. Therefore, the plea of the appellant / plaintiff claimingtitle by way of adverse possession if totally erroneous and againstlaw.24. Section 58 of Indian Evidence Act, 1872 reads as follows:58.Facts admitted need not be proved _ No fact need be proved in anyproceeding which the parties thereto or their agents agree to admitat the hearing, or which, before the hearing, they agree to admit byany writing under their hands, or which by any rule of pleading inforce at the time they are deemed to have admitted by their pleadings:Provided that the Court may, in its discretion, required the factsadmitted to be provided otherwise than by such admissions. 25. In the instant case, the appellant has admitted the factthat Mannamal, the mother of the respondents and the respondents hadjointly executed the said usufructory mortgage in favour of theappellant / defendant. Similarly, it is not in dispute that theappellant / defendant is enjoying the property only by virtue of theusufructory mortgage created by the respondents and therefore, as perthe deed, the appellant / defendant has categorically admitted thetitle of the respondents / plaintiffs and their mother and also thefact that he was in possession and enjoyment of the property only asa mortgagee. When the respondents / mortgagors were ready to redeemthe mortgage and approach him for redemption, the appellant /defendant was not inclined for the redemption. The defence raised inthe suit and the appeals by the appellant / defendant is contrary tolaw, hence, the same cannot be accepted. 26. It has been clearly established by oral and documentaryevidence that the respondents / plaintiffs, being the mortgagers areentitled to a decree for redemption, as prayed for and the courtsbelow have properly held that the respondents / plaintiffs areentitled to the relief sought for in the suit, which cannot beconstrued as perverse, as the finding is based on evidence. As thereis no error or infirmity in the impugned Judgment and Decree, I am ofthe view that there is no scope for interference by this Court in theSecond Appeal, accordingly, the same is liable to be dismissed. 27. In the result, this Second Appeal is dismissed. However,there shall be no order as to costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrartsvn https://hcservices.ecourts.gov.in/hcservices/ To1. The Principal District Judge Pondicherry.2. The III Additional District Munsif Pondicherry.1 cc To Mr.R.Yashod Vardhan, Advocate, SR.50210S.A.No.97 of 2001JRG(CO)sra 25/6/2010