R. Banumathi, J. - (1.) This appeal arises out of the judgment dated 13.04.2006 passed by the High Court of Madras at Madurai Bench in Second Appeal No.255 of 2005 in and by which the High Court set aside the final decree passed by the trial court and affirmed by the First Appellate Court by holding that the appellant/plaintiff cannot lay a claim in respect of Survey No.988 which the first respondent/second defendant claims entitled to.
(2.) Brief facts as seen from the Plaint averments are as follows:- The suit properties that is plaint A Schedule property and Plaint B Schedule property belonged to Kali Pillai, Krishna Pillai and others of Varukkapilavila Veedu, which was outstanding on a mortgage. On 27.12.1088 M.E.(11.08.1913) Kali Pillai, Krishna Pillai, Champakakutty Pillai alias Bhagvathi Pillai and Kalyani Pillai and Lakshmi Pillai mortgaged the said properties to Kutti Bhagvathi for Rs.785/- (Rs.109.04). The mortgage was an usufructuary with Kuzhikkanam for a period of twelve years. While Kutti Bhagvathi was enjoying it, she assigned her mortgage right to Eravi Pillai Parvathi Pillai from whom Parameswaran Pillai of Kavavilai got an assignment under deed No.1231 of 1107 and came into possession. Parameswaran Pillai sub-mortgaged portion of Plaint B Schedule property to Kesava Pillai Narayana Pillai which right has become vested in the second Defendant. The fourth Defendant has also right in the suit mortgage. The third Defendant has also right in the suit mortgage. The third Defendant has leasehold right over some portion of B Schedule property under Parameswaran Pillai. The first Defendant is in possession of A Schedule property as the heir of the deceased assignee mortgagor Parameswaran Pillai. The mortgagors 1 and 2 died and their right devolved on the legal heirs of mortgagors - Kalyani Pillai and her mother Lakshmi Pillai. The first Plaintiff - Kalyani Pillai inherited the equity of redemption of the plaint property on the death of her mother Lakshmi Pillai. The first Plaintiff is thus the mortgagor by derivative title who is entitled to redeem the mortgage from Defendant Nos.1 to 4. In so far as her mortgage rights, the first plaintiff-Kalyani Pillai executed an agreement of sale on 27.12.1968 in favour of the second Plaintiff - Vasudevan Pillai with respect to the mortgage property and as such he has joined as the second Plaintiff. Suit Properties within the stated boundaries are said to be situated in respect of A Schedule property in Survey numbers 990 - extent of 85 cents and Survey No.983/12A - 1 acre and 35 cents; Survey No.983/13A - 5 acres 96 cents and Survey No.983/14A 0.64 acres in respect of B schedule property.
(3.) The respondent-second defendant who is the main contesting defendant resisted the suit inter-alia contending that he is in possession of Survey No.983/14A for which the appellants/plaintiffs have no right of possession. The second defendant-Gopalakrishnan Nair inter-alia further pleaded that the property in old Survey No.988 belongs to him and the third defendant is residing in a building situated in Survey No.988 on rental basis.;