- (1.) THE plaintiff in O.S.No.634 of 1980 on the file of the District Munsif Court, Tindivanam, who had succeeded before the trial court and lost before the first appellate court in the appellant herein.
(2.) AT the time of admission the following two substantial questions of law were framed by this Court: 1."Whether the appellant would be bound by the execution proceedings in S.C.No.176 of 1965, District Munsif Court, Tindivanam. 2."Whether the lower appellate court was right in its conclusion that the respondents had perfected title by adverse possession. Heard the learned counsel appearing for the appellant and the learned counsel appearing for the respondents. For convenience, the parties to this appeal will be referred as arrayed before the trial court. The plaintiff instituted the suit seeking for the relief of declaration of his title, for recovery of possession and for other consequential reliefs. The plaintiff though came forward with a specific case that the suit properties originally belonged to Annamalai who had usufructuarily mortgaged the property under Ex.A-2 dated 27.6.1962 to secure repayment of Rs.400 in favour of the first defendant, that the usufructuary mortgagee namely the first defendant was in possession and in enjoyment of the suit property as a mortgagee, that the plaintiff on 13.8.1964 under Ex.A-1 purchased the equity of redemption from the said Annamalai, that as the first defendant had been in possession for more than 10 years, the mortgage stands wiped out in terms of Tamil Nadu Act 40 of 1979, that the plaintiff demanded possession of the suit property which the first defendant had declined to hand over, that the first defendant also contended that he had purchased the equity of redemption in court auction sale under Ex.B-6, dated 5.9.1966, that the auction sale is not binding on the plaintiff, that the first defendant had sold the suit property to the second defendant on 16.8.1979 under Ex.B-19, that the sale by the first defendant in favour of second defendant is not binding and that the plaintiff is entitled to the relief of declaration and recovery of possession. The second defendant had remained ex parte. The first defendant filed a written statement admitting that the suit property and other items were usufructuarily mortgaged to him by Annamalai on 27.6.1962, that apart from the amount advanced on the mortgage, the said Annamalai had borrowed amount under promissory note, that as the said Annamalai failed to repay the amount due under the promissory note the first defendant instituted a Small Causes Suit No.176 of 1965 on the file of the court, that the mortgaged properties were attached and equity of redemption was sold in court auction under Ex.B-6, dated 5.9.1966, that the first defendant being the successful auction purchaser was issued a sale certificate and under Ex.B-7, that he had taken delivery of the suit properties on 18.1.1967, that the first defendant had been remitting the kist under Exs.B-8 to B-17 commencing from the year 1971 onwards, that patta was also issued in favour of the first defendant as seen from Ex.B-18, that on 16.8.1979 the first defendant had conveyed the property to the second defendant under Ex.B-19, that the first defendant/mortgagee who had purchased the equity of redemption that become the absolute owner as there is a merger, that since then, the first defendant had been in possession as absolute owner, that the first defendant had prescribed title by adverse possession, that the sale deed in favour of the plaintiff is a sham and nominal transaction and it is not binding on the first defendant, that neither the original mortgagee nor the plaintiff is entitled to invoke the benefits of Tamil Nadu Act 40 of 1979 and that the plaintiff is not entitled to any relief. The plaintiff marked Exs.A-1 to A-4 and examined himself as P.W.1 while the first defendant has marked Exs.B-1 to B-20 and examined one Palani Chettiar as D.W.1 and Ayyanar as D.W.2.
(3.) IT is to be pointed out that the plaintiff had not filed any reply statement to the written statement filed by the first defendant. The trial court found that Ex.A-1 sale deed executed by Annamalai in favour of the plaintiff is true and valid, that the suit for declaration of title is maintainable, that the plaintiff is entitled for recovery of possession besides mesne profits, that the first defendant has no right to convey the suit property under Ex.B-19 to the second defendant and that the plaintiff is still the owner of the property. The auction sale in favour of the first defendant is not binding on Annamalai. In the light of the said findings, the trial court granted a decree as prayed for. The second defendant preferred A.S.No.6 of 1983 on the file of the Subordinate Judge of Tindivanam. The first appellate court allowed the appeal, set aside the judgment and decree of the trial court and being aggrieved, the present second appeal has been preferred by the plaintiff. According to the first appellate court, Ex.A-5 usufructuary mortgage is not in dispute. The plaintiff had established his purchase under Ex.A-1 on 13.8.1964 from Annamalai Kounder wherein the plaintiff had been directed to discharge the usufructuary mortgage. It is the claim of the plaintiff that the mortgage stands wiped out in terms of Act 40 of 1979. It is also found that the equity of redemption was sold in public auction pursuant to the decree obtained by the first defendant in the Small Causes Suit and Ex.B-7 sale certificate was issued in favour of the first defendant on 18.1.1967. The second defendant contended that as the equity of redemption has been brought to sale and was purchased by the first defendant, neither the plaintiff nor his vendor could assign the equity of redemption as the mortgage himself has acquired the equity of redemption in terms of the court auction sale. It is true that the plaintiff was not a party to Ex.A-6 or Ex.A-7. The plaintiff case being that Exs.B-6 and B-7 are not binding on him as the property had been sold behind his back without impleading him and therefore the auction sale and delivery proceedings are not binding on him. ;