NATESA THEVAR Vs. NARAYANASWAMI PADAYACHI
HIGH COURT OF MADRAS
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Chandra Reddi, J. -
(1.) This second appeal which was referred to a Bench by Satyana-rayana Rao J. raises a question under the Limitation Act. The facts of the case lie within a narrow compass and are not in dispute, the only controversy being whether it is article 134 or 144 or 148 of the Limitation Act that applies to this case. In order to appreciate the point involved in the second appeal, it is necessary to refer to Natesa Thevar vs. Narayanaswami Padayachi and Ors. (28.02.1952 - MADHC) Page 1 of 9 the facts briefly giving rise to this litigation. The suit properties were mortgaged by one Sivanandi Thevar usufructuarily to one Kamakshia Pillai for Rs. 225 on 14-2-1891 the period fixed for redemption being 25 years. The mortgagee executed a simple mortgage of his othi right over the suit properties to Periasami Odayar on 5-4-1898 according to the plaintiff, while it is the defendants' case that it was a mortgage of the properties themselves. Kamakshia Pillai executed another simple mortgage over the same properties to one Chidambara Aiyar for Rs. 290. Periasami Odayar filed a suit on his mortgage, obtained a decree and, in execution of the decree brought the properties to sale which were purchased by one Venkatarama Aiyar at the auction. Chidambara Aiyar also laid an action on his mortgage and in execution of the decree purchased the properties himself. The auction purchasers obtained the sale certificates under Exs. D-l and D-2 and got into possession of the properties. They continued to be in possession and enjoyment thereof till they sold them to the predecessors-in-interest of defendants under Ex. P-4 dated 24-9-1913. The plaintiff who purchased the equity of redemption under two sale deeds Exs. P-5 and P-6 in 1936 and 1943 has filed the present suit for redemption of the mortgage of 1891 and for possession of the suit properties in the District Munsif's Court of Mayavaram.
(2.) One of the defences to the suit was that as the entire interest in the suit properties was sold in court auctions of 1902 and 1904 and the mortgagee was dispossessed shortly thereafter by the auction purchasers who continued to be in possession as absolute owners ever since, till the latter sold them to the predecessors-in-interest of defendants with absolute rights, any right which the original mortgagee had in those properties was lost by limitation and adverse possession. Another plea was that even if the plaintiff was entitled to redeem the mortgage the defendants should be paid compensation for the buildings erected by them on the suit properties.
(3.) The trial court dismissed the suit holding that the suit was barred by Article 134 of the Limitation Act as it was filed beyond 12 years from the date of the sale to the predecessors-in-interest of defendants on 24-9-1913. Another finding given by it was that in case the plaintiff was entitled to redeem the mortgage, he was liable to pay a sum of Rs. 1000 by way of compensation.;
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