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Madras High Court · body

2000 DIGILAW 1010 (MAD)

A. Murugesan v. Tmt. Kuppammal

2000-10-13

K.SAMPATH

body2000
Judgment : 1. The details as regards the suits, appeals and the second appeals therefrom are given in a tabular form below: xxxxxxx 2. The plaintiff in O.S.No.3551 of 1983 on the file of the 13th Assistant City Civil Judge, Madras is the defendant in O.S.No.6351 of 1984 is the defendant in O.S.No.3551 of 1983. The 1st plaintiff in O.S.No.6351 of 1984 Muthukrishnan who was not a party in O.S.No.3551 of 1982 and who was the first plaintiff in all the other suits died pending the suits and his legal representatives were brought on record as plaintiffs 3 to 8 in the said suits. Except in S.A.No.950 of 1993, where Murugesan alone is the appellant, in the other second appeals Murugesan and the legal representatives of Muthukrishnan are the appellants. 3. In the course of this discussion, depending on the context the parties will be referred to either by their names, Kuppammal, Muthukrishnan, Murugesan or by their ranks in the suits. There are two schedules A and B in the suits ruled by the Muthukrishnan and Murugesan. A-Schedule is the same in all the suits while the B-Schedule in each suit is the portion alleged to have been encroached by the respective defendants. 4. The earliest suit is O.S.No.3551 of 1982 filed by Kuppammal against Murugesan. The extent covers an area of 1,260 sq.ft the part of which is the 240 sq.ft shown as B-Schedule in O.S.No.6351 of 1984 filed by Murugesan and Muthukrishnan against Kuppammal. The defendant in O.S.No.6562 of 1984. Govindan is the husband of Muniammal a cousin of Kuppammal the plaintiff in O.S.No.3551 of 1982 and the defendant in O.S.No.6351 of 1984. The defendant in O.S.No.6563 of 1984 Govindaraj is the son-in-law of Kuppammal. The defendant in O.S.No.6564 of 1984 Kuppan alias Shanmugam is the son-in-law of Govindan. The defendant in O.S.No.6562 of 1984 and Muniammal the second defendant Jayaraman in O.S.No.6565 of 1984 is the son of Kuppammals brother-in-law. 5. O.S.No.3551 of 1982 is for a permanent injunction restraining Murugesan from interfering with Kuppammals possession and enjoyment of an extent of 18 ft by 17 ft equal to 1,260 sq.ft in R.S.No.780/5 in 145, Melpatti Ponnappa Mudali Street, Madras and for a mandatory injunction for the removal of a wall. 5. O.S.No.3551 of 1982 is for a permanent injunction restraining Murugesan from interfering with Kuppammals possession and enjoyment of an extent of 18 ft by 17 ft equal to 1,260 sq.ft in R.S.No.780/5 in 145, Melpatti Ponnappa Mudali Street, Madras and for a mandatory injunction for the removal of a wall. So far as the other suits are concerned as already noticed the A-Schedule is the same in all the suits, while the B-Schedule gives the portion alleged to have been encroached by the various defendants. A plan has been filed along with the plaint in each of those suits showing the various encroached portions. The B-Schedule in O.S.No.6561 of 1984 in which Kuppammal is the defendant, the encroached portion is marked No.(1) and the area is given as 16 feet east west and 15 feet north south = 240 sq.ft. In O.S.No.6562 of 1984 the area encroached is marked by the No.4 and the extent is given as 10 feet east west and 16 feet north south= 260 sq.ft. In O.S.No.6563 of 1984 the area encroached is marked by the No.2 and the area is given as 8 feet east west and 6 feet north south = 48 sq.ft. In O.S.No.6564 of 1984 the number given as 3 and the area encroached is given as 10 ft. east west and 15 feet north south = 150 sq.ft. In O.S.No.6565 of 1984 the numbers given are 5 and 6 and the total area encroached is given as 10 ft. east west and 22 ft. north south = 220 sq.ft. 6. Theaverments in O.S.No.3551 of 1982 filed by Kuppammal are as follows: The property subject matter of the suit belonged to one Brahamalambigai Ammal. She usufructuarily mortgaged the property to Narayanaswami Naicker and Rajambal and on the death of Narayanaswami Naicker and Rajambal, Kannammal wife of Narayanaswami Naicker and mother of Kuppammal became entitled to the property and Kannammal gave the property in equal share to Kuppammal and Muniammal, daughter of Rajammal equally and under separate settlement deeds on 11.3.1982. There was an earlier suit O.S.No.677 of 1957 filed by Brahamalambigai Ammal for delivery of vacant possession of the suit property and the suit was dismissed for default on 14.7.1957. Brahamalambigai Ammal did not take steps for taking possession of the mortgaged property. There was an earlier suit O.S.No.677 of 1957 filed by Brahamalambigai Ammal for delivery of vacant possession of the suit property and the suit was dismissed for default on 14.7.1957. Brahamalambigai Ammal did not take steps for taking possession of the mortgaged property. Narayanaswamy Naicker and Rajambal continued in possession for over the statutory period and had prescribed for title by adverse possession. There was an attempt by Murugesan, the defendant in the suit and the owner of the adjoining property to encroach upon the suit property and he had also annexed certain portions of the same by committing illegal trespass. He had secretly dug pits within the property of Kuppammal for laying foundation for constructing a wall or building or to put up a fence, inspite of protests and warnings from Kuppammal and her men and agents. A complaint was also given to police on 4.6.1982. It was under these circumstances the suit came to be filed. 7. The suit was resisted by Murugesan on the following averments: Murugesan and his brother Muthukrishnan purchased the suit property along with other portions under a duly registered deed of sale dated 5.7.1955 and they were put in possession of the property purchased on 5.7.1955 itself. They continued in possession and enjoyment along with other portions eversince that date. They also got the patta transferred in their names. They had been paying out rents, Urban Land Tax and Corporation Taxes eversince the date of their purchase in 1955. The Corporation Assessment also stood in the name of Murugesan. Murugesan had been in possession and enjoyment of the suit property along with other portions as absolute owner without any interference from anybody. Kuppammal had not derived any right, title or interest from Brahamalambigai Ammal as Brahamalambigai Ammal had sold away the property in 1955 itself. Kuppammal knew about these facts and it was in those circumstances she had made her mother Kannammal to execute a deed of settlement in her favour hoping that it would create a title in her favour. As Kannammal herself had no title or interest in the property the settlement deed would not create any right in favour of Kuppammal. The document had been cooked up to suit her convenience. As Kannammal herself had no title or interest in the property the settlement deed would not create any right in favour of Kuppammal. The document had been cooked up to suit her convenience. She committed trespass just prior to the filing of the suit and when she was asked to remove the trespass she had filed the suit in order to give a colour of reality. In fact, she pleaded for time before the Panchayathars to remove the trespass and taking advantage of the indulgence given to her she had filed the suit. Brahamalambigai Ammal having sold away the property on 5.7.1955, she had no right to file any suit in 1957. The documents filed by Kuppammal also did not relate to the suit property. Photostat copy of the decree filed by Kuppammal in respect of O.S.No.677 of 1957 did not contain any schedule to correlate the same to the suit property. As Brahamalambigai Ammal owned vast extent of land it was the bounden duty of Kuppammal to establish to the satisfaction of the court that the alleged documents in respect of the suit properties created title in her favour. The original owner borrowed a sum of Rs.100 from Narayanaswamy Naicker and Vellai Naicker and executed a letter in their favour and subsequently paid the amount due to them. She never executed any deed of usufrusturary mortgage in favour of Narayanaswamy Naicker and Rajambal. Even otherwise Kuppammals mother Kannammal alone had no exclusive title to the suit properties to settle the same on her daughter. The original owner might have filed the suit by mistake and when she realised that she had already sold the suit properties she must have allowed the suit to be dismissed for default. As Murugesan had continued to be in possession of the suit properties along with other appellants from 1955 onwards, there was no question of Kuppammal prescribing title by adverse possession. Kuppammal never asserted her title nor did she deal with the properties and so possession if any way only an innocent possession which would not create any title by adverse possession in her favour or her predecessors in interest. The deed of settlement dated 11.3.1982 was invalid in law as the settlor herself had no title to the suit properties. The present suit against Murugesan alone without impleading the other co-owner was bad in law. The deed of settlement dated 11.3.1982 was invalid in law as the settlor herself had no title to the suit properties. The present suit against Murugesan alone without impleading the other co-owner was bad in law. As Murugesan had put up wall in his own land, it was not liable to be removed as claimed by Kuppammal. 8. Originally, this suit alone went to trial as the other suits had not been filed by then. The learned 13th Assistant City Civil Judge. Madras by his judgment and decree dated 22.6.1984 dismissed the suit holding that the title of Kuppammal was denied by Murugesan and Kuppammal had not sought declaration of title and she was not entitled to the relief of permanent injunction or mandatory injunction and in case she wanted she could file a suit for declaration of her title separately. 9. As against that judgment Kuppammal filed an appeal in A.S.No.262 of 1985, the learned 5th Additional City Civil Judge by his judgment and decree dated 11.7.1985 allowed the appeal and remanded the suit for fresh disposal. By then O.S.No.6561 of 1984 had been filed and the learned 5th Additional City Civil Judge while remanding the matter directed joint trial of O.S.No.3551 of 1982 and O.S.No.6561 of 1984. While disposing of the appeal the learned 5th Additional Judge made certain observations which it would be appropriate to extract at this stage. In paragraph 6 of his Judgment the learned Judge observed as follows: 10. In paragraph 7 the learned Judge has observed that Murugesan had purchased a larger site under Ex.B-1 and this site included the property subject matter of the usufructuary mortgage under Ex.A-1 dated 9.1.1947, that Murugesan had not discharged Ex.A-1 usufructuary mortgage and that these was nothing to show that the mortgage had been discharged and Kuppammal was therefore entitled to be in possession of the properties subject matter of the usufructuary mortgage and Murugesan was not entitled to disturb her possession. The learned Judge further observed that Kuppammal had produced Exs.A-5 to A-12 being Corporation Property Tax receipts, Ex.A-20 being the voters list and the letter correspondence being Exs.A-13 to A-16, thus showing her possession of the suit properties and it was not open to Murugesan to raise the contention that Kuppammal was not in possession of the properties subject matter of the usufructuary mortgage. 11. 11. The learned Judge further observed in paragraph 8 of his judgment that after executing a sale deed under Ex.B-1 on 5.7.1955 in favour of Murugesan the mortgagor Brahmalambigai Ammal had no right to file a suit for redemption in the year 1957 and if at all anybody had any right to seek redemption it was only Murugesan and Murugesan had not filed any suit for redemption. 12. In paragraph 9 of his Judgment the learned Judge has further referred to the fact that Kuppammal in the schedule to the suit had claimed that an extent of 70 feet north south into 36 feet east west = 2,520 sq.ft as against an extent of 60 feet north south and 36 feet east west = 2,160 sq.ft which is the property covered by the usufructuary mortgage and that this claim for an extra extent was not warranted by the terms of Ex.A-1 mortgage deed and in case in this extra extent of 10 feet by 36 feet in case Murugesan attempted to put up any construction she had no right to prevent it or to remove it. The learned Judge has also pointed out that in the suit Kuppammal had not pinpointed the area alleged to have been trespassed by Murugesan by filing a plan, that the had not taken steps to have an Advocate Commissioner appointed for inspecting the property and submitting a report and in those circumstances she would not be entitled to seek either permanent injunction or mandatory injunction. However, the learned Judge ultimately held, merely because Kuppammal had not asked for declaration, her suit for mere permanent injunction and mandatory injunction could not be dismissed on that score. It was enough if on the basis of the pleadings her case was examined. It was also open to her to seek amendment with regard to the extent. With the above observations, as already noticed the case was remanded to the trial court for consideration afresh along with the other suit O.S.No.6561 of 1984. 13. Inthe other suits filed by Muthukrishnan and Murugesan we have already referred to the fact that the schedule consisted of the whole extent of 2,800 sq.ft. covered by the sale deed Ex.B-1 in favour of Muthukrishnan and Murugesan and B-Schedule consisted of the portion alleged to have been trespassed by the various defendants. 13. Inthe other suits filed by Muthukrishnan and Murugesan we have already referred to the fact that the schedule consisted of the whole extent of 2,800 sq.ft. covered by the sale deed Ex.B-1 in favour of Muthukrishnan and Murugesan and B-Schedule consisted of the portion alleged to have been trespassed by the various defendants. The common averment in those suit on behalf on Muthukrishnan and Murugesan is that in 1979, the various defendants had committed trespass in the B-Schedule property and the suit had been filed for recovery of the several portions covered by the B-Schedule in the various suits. 14. The defend set out by Govindan in O.S.No.6562 of 1984 is as follows: Muniammal was the absolute owner of the land over which the superstructure stood and the surrounding area to an extent of 18 feet by 17 feet by virtue of a registered settlement deed executed by her aunt Kannammal on 11.3.1982. In other respects the written statement proceeded on the same basis as the plaint of Kuppammal and her written statement in O.S.No.6561 of 1984. The written statement further stated that Murugesan himself came to the rear portion of the settled property only about 15 years prior to the suit though he claimed to purchase the same in 1955 itself. The thatched structure was put up in the year 1957 itself. From the date of the usufructuary mortgage he was in the occupation of the property, in view of the right of his wife. 15. In O.S.No.6563 of 1984 the defendant Govindaraj who is the son-in-law of Kuppammal has stated that he was a permanent resident of Vellore and his capacity as son-in-law of Kuppammal he was living with her for a brief period, that there was no trespass in the year 1981 as alleged by Muthukrishnan and Murugesan. Kuppammal was the absolute owner of the property by virtue of the settlement deed. There was no complaint filed against him by Muthukrishnan and Murugesan before the police. The suit was liable to be dismissed. 16. The defendant in O.S.No.6564 of 1984 Kuppan alias Shanmugam claimed that he was the son of Muniammal and that he was residing in the portion which belonged to his mother. He had not committed any unlawful trespass. There was no police complaint nor was there any notice. The sale deed itself was sham and nominal. 16. The defendant in O.S.No.6564 of 1984 Kuppan alias Shanmugam claimed that he was the son of Muniammal and that he was residing in the portion which belonged to his mother. He had not committed any unlawful trespass. There was no police complaint nor was there any notice. The sale deed itself was sham and nominal. There was no recital about the subsisting mortgage in the sale deed. The vendor of Muthukrishnan and Murugesan did not redeem the mortgage till the date of the filing of the suit and the same had become time barred. 17. The second defendant in O.S.No.6565 of 1984 Jayaraman alone has filed a written statement to the effect that he was the son of Kuppammals brother-in-law and that he was residing in the B-Schedule property as licensee from Kuppammal and that he was not a trespasser. The suit was liable to be dismissed. The first defendant Sadhurpujam did not contest the suit. 18. The learned 13th Assistant City City Judge, Madras framed the necessary issues in the several suits and had a joint trial. On the basis of the oral and documentary evidence he accepted the case of Kuppammal and rejected the case of Murugesan and the legal representatives of Muthukrishnan, decreed the suit O.S.No.3551 of 1982 as prayed for and dismissed the suits filed by Muthukrishnan and Murugesan by his common judgment dated 27.8.1990. 19. Before remand, on the side of Kuppammal Exs.A-1 to A-22 had been marked and P.Ws.1 to 3 had been examined. After remand Exs.A-23 to A-29 were marked on her side and Govindan, defendant in O.S.No.6562 of 1984, husband of Muniammal, was examined as P.W.4. 20. On side of Muthukrishnan and Murugesan before remand, D.Ws.1 and 2 were examined and Exs.B-1 to B-6 were marked. After remand there was no further oral evidence on their side but Exs.B-7 to B-20 were marked. 21. While decreeing the suit of Kuppammal and dismissing the suit of Muthukrishnan and Murugesan the learned trial Judge made certain observations which would be relevant to note at this stage itself. In paragraph 19 of his judgment the learned Judge observed as follows: The obvious reference by the learned Judge is to paragraph-9 of the order of remand. A reading of paragraph-9 of the order of remand does not say that the learned trial judge has observed. In paragraph 19 of his judgment the learned Judge observed as follows: The obvious reference by the learned Judge is to paragraph-9 of the order of remand. A reading of paragraph-9 of the order of remand does not say that the learned trial judge has observed. What the order of remand says has already been referred to. The learned trial judge, in my view, has misread the order of remand. The judgment of the trial court does not stop with that. If further observes that the order of remand had found that Kuppammal and Muniammal wife of Govindan, the defendants in O.S. No.6562 of 1984 were in possession of 18 feet by 60 feet in their own right and this finding would operate as res judicata This finding is also wrong. The order of remand does not say so. On the basis of his own way of reading of the order of remand the learned trial judge held that Kuppammal and Muniammal were in possession and enjoyment in their own right. It is faulty. What the order of remand says is that these two were in possession pursuant to the settlements in their favour, which in their turn purport to draw inspiration from the usufructuary mortgage Ex.A-1 of the year 1947, that the mortgagor having sold the property to Muthukrishan and Murugesan, had no right to apply for redemption after the sale in their favour and that Murugesan alone had that right and he had no exercised that right till the passing of the order of remand. The trial court had read something into the order of remand, which is really not there. This has clouded its reasoning. No doubt, the order of remand says that Muthukrishnan and Murugesan had purchased a larger property, which included the mortgaged property. The trial court has further reasoned in paragraph 21 of its judgment that Ex.A-1 usufructuary mortgage deed provided for redemption after two years, that is from 1949 and redemption had to be sought within 30 years therefrom, that is before 1979 and Muthukrishnan and Murugesan not having applied for redemption before 1979, they had lost their right and rights accrued to Kuppammal and Muniammal by reason of their possession and that nobody could question that. 22. 22. In Ex.A-1 the material portion runs as follows: From this, according to the learned Judge, the period for redemption of the mortgage would begin to run from the second year and by 1979 the right to seek redemption ceased and Kuppammal and Muniammal became absolutely entitled to the property in their own right. I will refer to this aspect of the legal position at a later stage in the course of this judgment. The learned trial judge chose to accept Exs.C-1 and C-2 on the ground that no objection had been raised my Murugesan. 23. The relevant portion of the learned Judges order is as follows: The learned Judge has overlooked the criticism in the order of remand about Kuppammal not taking steps to have an Advocate Commissioner appointed and identify the various items. The learned trial judge is also conscious of the fact that the Advocate Commissioner had not taken the assistance of a Surveyor to fix the boundaries. Merely on the ground that Muthukrishnan and Murugesan had not raised any objection to the report and the plan, the learned trial judge ought not to have accepted Exs.C-1 and C-2. 24. There were several appeal filed, the details of which have already been noticed at the beginning of this judgment. The learned 6th Additional City Civil Judge, Madras by his judgment dated 16.2.1993 confirmed the decision of the trial Court and dismissed the appeals of Murugesan and the legal representatives of Muthukrishnan. 25. It should be noticed at this stage that the order of remand specifically states that Kuppammal claimed rights in a larger area than was covered under her settlement deed and without seeking amendment with regard to the extra extent claimed, it was not open her to maintain the suit for the entire extent. Notwithstanding this observation in the order of remand, it does not appear that Kuppammal took any steps to have her plaint amended. 26. The learned 6th Additional City Civil Judge while confirming the decision of the trial court observed as follows: It cannot be accepted that Brahamalambigai Ammal did not pursue her suit O.S.No.677 of 1957 for redemption as the property mortgages to Narayanaswami Naicker and Vellai Naicker was different from the property covered under the sale in favour of Muthukrishnan and Murugesan. The learned 6th Additional City Civil Judge while confirming the decision of the trial court observed as follows: It cannot be accepted that Brahamalambigai Ammal did not pursue her suit O.S.No.677 of 1957 for redemption as the property mortgages to Narayanaswami Naicker and Vellai Naicker was different from the property covered under the sale in favour of Muthukrishnan and Murugesan. The purchasers namely Muthukrishnan and Murugesan did not find out whether there was any encumbrance in the properties which they were purchasing. If only they had seen that they would have known about the usufructuary mortgage in respect of the suit properties. Therefore, it had to be held that the mortgaged property formed part of the larger property covered by the sale property in favour of Muthukrishnan and Murugesan. Even at this stage it may be pointed out that irrespective of whether encumbrance certificate was obtained or not, it was incumbent on Kuppammal to establish the identity of the property, that is to say that the mortgaged property formed part of the property sold to Muthukrishnan and Murugesan. In any event it was up to her to establish on ground the property in respect of which she claimed a right. 27. With regard to the period of limitation the learned Additional Judge agreed with the reasoning of the trial court and found that Muthukrishnan and Murugesan should have filed the suit before 1979, February. The learned Additional Judge is also conscious of the fact that the Commissioner had not taken the assistance of the Surveyor to fix the boundaries but in as much as Muthukrishnan and Murugesan did not object to C-1 and C-2, according to the learned judge they had to be accepted. The learned Additional Judge also find that the possession of Kuppammal and Muniammal had become adverse even in 1979. He further finds that in respect of the various defendants in the suits filed by Muthukrishnan and Murugesan, the extent of the trespass had not been establish by them. As already noticed the learned Additional Judge dismissed the appeals. The learned Additional Judge also find that the possession of Kuppammal and Muniammal had become adverse even in 1979. He further finds that in respect of the various defendants in the suits filed by Muthukrishnan and Murugesan, the extent of the trespass had not been establish by them. As already noticed the learned Additional Judge dismissed the appeals. Aggrieved, the present second appeals have been filed and at the time of admission the following substantial question of law were framed for decision in the second appeal: “(1) Whether the redemption in respect of usufructuary mortgage under Ex.A-1 is liable to be reckoned from the date of payment for recovery of possession or from the date of execution of the mortgage under Art.61(a) of the Limitation Act. (2) Whether the application of the decision of Gnanakan Nadar v. Gnanammal 1980 T.L.N.J. 217 (D.B.) applies in the case of redemption of usufructuary mortgage as 30 years after the payment of the monies in the usufructuary mortgage for recovery of possession and if so, whether the suit filed in 1984 for recovery of possession would be within time as the same is still to be paid and redeemed. (3) Whether the property covered under Ex.B-12 sale deed, would entitle the purchaser for redeeming the mortgage under Ex.A-1. (4) Whether Ex.A-2 is a bar for redemption of the mortgage. (5) Whether the adverse title could be pleaded by usufructuary mortgagee and the successors of usufructuary mortgagee against the paramount title holder in the face of Ex.B-12. (6) Whether the suits for recovery of possession are liable to be decreed on the basis of title under Ex.B-12 in favour of the appellants.” 28. Mr.N.Krishna Mitra, learned counsel for the appellants in all the second appeals submitted that the courts below clearly overlooked that Kuppammal had not established that the property subject matter of the sale in favour of Muthukrishnan and Murugesan and marked as Ex.B-12 was also the subject matter of the usufructuary mortgage under Ex.A-1 of the year 1947. There was a specific direction given in the order of remand that Kuppammal had to get an Advocate Commissioner appointed and fix the boundaries on ground and admittedly, the Advocate Commissioner was appointed subsequent to the order of remand. He did not take the assistance of any Surveyor and the properties had not been identified. There was a specific direction given in the order of remand that Kuppammal had to get an Advocate Commissioner appointed and fix the boundaries on ground and admittedly, the Advocate Commissioner was appointed subsequent to the order of remand. He did not take the assistance of any Surveyor and the properties had not been identified. According to the learned counsel, the courts below clearly erred in accepting Exs.C-1 and C-2, the report and the Plan of the Advocate Commissioner merely on the ground that Murugesan and the legal representatives of Muthukrishnan did not raise any objection with regard to those two documents. The learned counsel then submitted that even conceding that the property subject matter of sale was the larger property and the property subject matter of mortgage under Ex.A-1 was part of it, till the original mortgagor Brahamalambigai Ammal lost her right to redeem the mortgage after the sale in favour of Muthukrishnan and Murugesan and the filing of a suit by her in 1957 evidenced by Ex.A-2 and its subsequent dismissed for default evidenced by Exs.A-3 and A-4 would not stand in the way of Muthukrishnan and Murugesan claiming title to the properties covered by their sale deed Ex.B-12. In as much as Brahamalambigai Ammal had no right whatsoever to seek redemption and the mere dismissal of her suit for default would not clothe the mortgagees namely, Narayanaswamy Naicker and Vellai Naicker with any rights with regard to the properties subject matter of the mortgage except their right as mortgagees. The reasoning of the courts below that valuable rights had accrued to the mortgagees and the subsequent successors in interest namely Kannammal, Muniammal and Kuppammal in 1979, that is 30 years after the right to seek redemption of the mortgage under the original of Ex.A-1 arose was wrong. According to the learned counsel the right to redeem the usufructuary mortgage under Ex.A-1 was available even after 1979. The learned counsel further submitted that the sale under Ex.B-12 would entitle the purchasers namely, Muthukrishnan and Murugesan to redeem the mortgage under the original of Ex.A-1 and that the dismissal of of Ex.A-2 suit would not be a bar for redemption of the mortgage. The learned counsel further submitted that the sale under Ex.B-12 would entitle the purchasers namely, Muthukrishnan and Murugesan to redeem the mortgage under the original of Ex.A-1 and that the dismissal of of Ex.A-2 suit would not be a bar for redemption of the mortgage. The learned counsel further submitted that this was an usufructuary mortgage and decision of the Bench of this Court in Gnanakan Nadar v. Gnanammal and 3 others Gnanakan Nadar v. Gnanammal and 3 others Gnanakan Nadar v. Gnanammal and 3 others (1980) T.L.N.J. 217 would apply to the facts of the case and the period within which the suits had to be filed should be reckoned under Art.61(A) of the Limitation Act from 1979. 29. Mr.T.R.Rajagopalan, learned Additional Advocate General appearing for the contesting respondents in all the appeals on behalf of Mr.L.Mohan, learned counsel submitted that a clear case of encroachment by Murugesan had been made out. The contention raised by the appellants that there was no mortgage of the properties subject matter of the sale deed Ex.B-12 had been found to be wrong by the courts below and in fact the order of remand itself had expressly held that it was not open to Murugesan to raise the contention that the property covered by the sale deed was different from the property covered by the mortgage deed. According to the learned senior counsel there could not be a dispute that there was a mortgage. On the issues arising for consideration in the various suits the courts below have concurrently held that Murugesan and Muthukrishnan had not sought redemption of the mortgage and they had lost their right to seek redemption. The courts below chose to accept the oral evidence or P.W.2 another mortgagee and the courts below also acted on the admission of D.W.1 that the appellants had not substantiated their stand that Kuppammal and others committed trespass and in fact this stand of the appellants was falsified by the various documents and in particular Exs.A-14 and A-15. 30. In reply Mr.N.Krishna Mitra submitted that the very evidence of P.W.2 would be against the case of Kuppammal and others. 31. A perusal of Exs.A-1 and B-12 would show that the property covered by Ex.A-1 is included in Ex.B-12 document. What was therefore mortgage under the original of Ex.A-1 was old under Ex.B-12 to Murugesan and Muthukrishnan. This was in 1955. 31. A perusal of Exs.A-1 and B-12 would show that the property covered by Ex.A-1 is included in Ex.B-12 document. What was therefore mortgage under the original of Ex.A-1 was old under Ex.B-12 to Murugesan and Muthukrishnan. This was in 1955. In 1957 the original mortgagor filed a suit for redemption of the mortgage created under the original of Ex.A-1 alleging that the amount due under the mortgage had already been paid. For reasons best known to her she did not pursue the suit and allowed it to go for default. It is the contention on behalf of Kuppammal that in as much as the mortgagor had filed a suit for redemption and allowed it to go for default, it must be deemed that she had given up her right to redeem the property. It is not necessary to reiterate that on the date Brahmalabigai Ammal filed the suit in 1957 she had already sold the equity of redemption to Murugesan and Muthukrishnan. The dismissal for default cannot be put against Murugesan and Muthukrishnan if they are otherwise entitled to the properties. 32. There is no dispute that the suit property originally belonged to Brahmalambigai Ammal. She claimed it under a Will from her father. She executed the original of Ex.A-1 in 1947. As per the terms of the document she would have a right to repay the amount borrowed under the said usufructuary mortgage in any June after two years from the date of execution of the mortgage. The mortgage was executed in the names of Narayanaswami Naicker and his brother, Vellai Naicker. Vellai Naicker died on 20.12.1949. As evidenced by Ex.A-27 his wife Rajammal became entitled to the rights under the mortgage in respect of his share. After Narayanaswamy Naickers death his daughter Kannammal became entitled to the rights under the mortgage and she purported to execute Ex.A-17 giving one half of the property covered by the mortgage to her daughter Kuppammal. On the same date she purported to execute another document containing identical terms giving, the other half to Rajammals daugter Muniammal. This document has been marked as Ex.A-29. On the same date she purported to execute another document containing identical terms giving, the other half to Rajammals daugter Muniammal. This document has been marked as Ex.A-29. Both the documents specifically mention that there was a suit filed by the mortgagor Brahmalambigai Ammal in the year 1957 for redemption of the mortgage covered by the two settlement deeds and shown as A-Schedule in both the deeds and that she did not pursue it and let it go for default and she had not cared to take possession of the properties after redeeming the mortgage and that the mortgagees had become entitled to the properties mortgaged in their own right. After obtaining the settlement deed in her favour alleging trespass by Murugesan, Kuppammal filed O.S.No.3551 of 1982. According to Kuppammal she had become entitled to the properties absolutely. She had also prescribed for title by adverse possession by allowing possession by her and her mother and prior to her by her grandfather. Against this case of Kuppammal, Murugesan and Muthukrishnan came forward with a case that they became entitled to the properties by virtue of the sale deed Ex.A-1 in their favour executed by Brahamalambigai Ammal in the year 1955, that even prior to the sale deed in their favour, they were in possession and enjoyment of the suit properties and there was encroachment by various defendants including Kuppammal in various suits in the year 1979 and these encroachments had to be removed and they must be given vacant possession. 33. If as contended by the respondents particularly, Kuppammal that the subject matter of sale under Ex.B-1 and the mortgaged property under the original of Ex.A-1 were one and the same, then the mortgagor after the sale under Ex.B-1 had no right to file a suit for redemption and the dismissal for default of the suit filed by Brahamalambigai Ammal in 1957 would not mean anything. Equally if the property subject matter of the suit by the mortgagor was different from the property covered by the sale deed in favour of Murugesan and Muthukrishnan, then also the dismissal for default of the suit would be irrelevant. Equally if the property subject matter of the suit by the mortgagor was different from the property covered by the sale deed in favour of Murugesan and Muthukrishnan, then also the dismissal for default of the suit would be irrelevant. It is therefore that the reliance placed by Kuppammal and others on the alleged abandonment of any right in the suit properties by the original mortgagor Brahamalambigai Ammal would not in any way advance their case and would not clothe them with any extra right over the properties. Kuppammal has therefore to independently establish her claim to the suit property and this she has to do de hors the dismissal of the redemption suit by Brahamalambigai Ammal that the property subject matter of the settlement in her favour by her mother was a properly executed settlement of property in which the mother had any right. She had to establish that the property covered by Ex.A-1 and the property covered by Ex.B-1o were one and the same. It has already been noticed that both the courts below have found that pursuant to the direction in the order of remand Kuppammal did not identify the various items. The courts below have merely proceeded on the basis that Murugesan and the legal representatives of Muthukrishnan did not object to the Commissioners Report C-1 and his Plan C-2 notwithstanding the fact that the Commissioner had not availed the services of a Surveyor. The order of remand had not been implemented. It had specifically directed Kuppammal to have a Commissioner appointed and fix on ground the properties that she was entitled to. 34. However, having regard to the finding given in the order of remand that it was not open to Murugesan and Muthukrishnan to contend that the property covered by Ex.B-12 sale deed is different from the property covered by the original of Ex.A-1, there cannot be a dispute that there was a mortgage. It is there in the remand order itself. But from the descriptions given in the two deeds, it can be easily seen that Ex.A-1 property is part of the larger property covered by Ex.B-12. This will also be evident from certain other things to be referred to in this judgment. 35. It is there in the remand order itself. But from the descriptions given in the two deeds, it can be easily seen that Ex.A-1 property is part of the larger property covered by Ex.B-12. This will also be evident from certain other things to be referred to in this judgment. 35. In Gnanakan Nadar v. Gnanammal and 3 others Gnanakan Nadar v. Gnanammal and 3 others Gnanakan Nadar v. Gnanammal and 3 others 1980 T.L.N.J. 217 relied on by Mr.Krishna Mitra learned counsel for the appellants an usufructuary mortgage was created in the year 1899. The suit was filed in the year 1968. The contention raised on behalf of the mortgagees representatives in interest was that the suit had become barred by limitation. But the High Court in second appeal held that Tamil Nadu Agriculturists Debt Relief Act (Act IV of 1938) as amended by Act XXIV of 1950 applied in that case and by virtue of the provisions of Act XXIV of 1950 the mortgage was fully discharged by operation of law in the year 1950 and the suit having been filed in 1968 within 18 years from the date of accrual of cause of action on the basis of either Art.148 of the Limitation Act 1908 or Art.61(a) of the Limitation Act, 1963 was in time. In my view this decision has no application to the facts of the present case. 36. A-18 and A-19 are the Encumbrance Certificate relating to Ex.A-1 property. They do not mention about Ex.B-1 sale. There is also a vital admission by Kuppammals witness P.W.2 that Murugesan had been in the suit property from 1972. Ex.A-21 which is a voters’ list for the year 1971 shows that Murugesan is an occupant in the suit property. 37. However, it is not possible to agree with Mr.N.Krishna Mitra, learned counsel for the appellant that the right to redeem the usufructuary mortgage under Ex.A-1 was available even after 1979. The learned counsel is right when he says that the dismissal of Ex.A-2 suit would not be a bar for redemption of the mortgage. But then such a suit should have been filed by 1979. The learned counsel is right when he says that the dismissal of Ex.A-2 suit would not be a bar for redemption of the mortgage. But then such a suit should have been filed by 1979. It is settled position of law that a suit for redemption of a usufructuary mortgage under Art.61(a) of the Limitation Act and the suit for recovery of property under Art.65 of the Limitation Act would attract Sec.27 of the Limitation Act and on the expiry of the period of limitation for a suit for redemption of a mortgage which is virtually a suit for possession of property, the title of the mortgagor to the property extinguished. 38. It has already been referred to that the order of remand specifically states that Kuppammal claimed rights in a larger area than was covered under her Settlement Deed and without seeking amendment to the plaint with regard to the extra extent claimed. It is not open to her to maintain the suit for the entire extent. Kuppammal did not take any steps to have the plaint amended. She had sought for only injunction and mandatory injunction. Then what is the portion in her occupation has to be established by her. Certain other aspects have also to be noticed in this connection. Exs.A-5 to A-10 are house tax receipts from 24.8.1968 to 25.4.1979 for 8/51L. Melpatti Ponnappa Mudali Street. The property is shown to continue to stand in the name of Brahalambigai Ammal though the remittance had been made by Narayanasamy and Rajammal. Ex.A-11 dated 6.11.1979 is the receipt in the name of Brahalambigai Ammal for second half of 77-78. The property is given a new number as 145 for Old No.8/51L. The remitters are Kannammal and Rajammal. Disputes had arisen in August, 1978. Ex.A-12 is a receipt for payment of tax for the first half of 1978-79 and second half of 1978-79 for new No.145 in the names of Rajammal and Kannammal. The remitter being one Pachai. Ex.A-13 bearing date in August, 1978 is the intimation from the Corporation of Madras addressed to Kannammal and Rajammal asking them to pay Rs.6 in the Madras Taluk Treasury towards subdivision fees within a week. There is a reference in this intimation to the applicant by Kannammal and Rajammal bearing date 19.6.1978. Apparently, they had applied for sub-division and separate registry. There is a reference in this intimation to the applicant by Kannammal and Rajammal bearing date 19.6.1978. Apparently, they had applied for sub-division and separate registry. Ex.A-14 is yet another communication from the Corporation to Rajammal with reference to amendment of ownership and her application dated 25.4.1979 and calling upon her to produce the relevant documents on 16.5.1979. Ex.A-15 dated 18.6.1979 is a communication from the Assistant Revenue Officer. Corporation Division-5 addressed to Murugesan and Muthukrishnan asking them to produce the original documents for verification and return on 25.6.1979 at 4 p.m. failing such production the amendment of ownership would be corrected in favour of Rajammal and Kannammal. The copy of the communication had been marked to Rajammal and Kannammal also. Murugesan and Muthukrishnan had asked for amendment of ownership and the Corporation had been asking them to produce documents to prove their ownership. 39. Ex.A-16 dated 17.7.1980 is a communication from the Assistant Revenue Officer to Rajammal and Kannammal informing them that the premises had already been amended in favour Murugesan and Muthukrishnan vide their document No.1943/55 dated 14.10.1955. However, they were request to produce the original documents in their favour for verification on 28.7.1980 for taking further action. 40. Now comes Ex.A-17 dated 12.3.1982. It purports to be a settlement by Kannammal in favour of Kuppammal wife of Pachai Naicker. There is a reference made to the mortgage by Brahalamblgai Ammal, her suit which was dismissed for default and her not taking further steps to take possession after discharging the mortgage and the settlor prescribing for title by adverse possession from 1957. How Kannammal claims to be the sole legal representative is not clear from the document. Apparently, a colour of reality had to be given. Ex.A-18 and A-19 are the encumbrance certificates for the periods 1.1.1982 to 5.10.1982 and 1.1.1947 to 31.5.1969. In Ex.A-18, Ex.A-17 encumbrance is shown. In Ex.A-19 the lease deed dated 9.2.1947 for Rs.100 by Brahalambigai Ammal to Narayanan Naicker and Vellai Naicker is there. But significantly, there is no reference to Ex.B-1 property. This we have already noticed. Ex.A-20 is the voters’ list for the year 1966. Ex.A-21 is the voters list of 1975. In this voters list the name of Murugesan and the name of his wife Rajam are shown as occupants of the suit property. His name also finds a place. But significantly, there is no reference to Ex.B-1 property. This we have already noticed. Ex.A-20 is the voters’ list for the year 1966. Ex.A-21 is the voters list of 1975. In this voters list the name of Murugesan and the name of his wife Rajam are shown as occupants of the suit property. His name also finds a place. Thus even by 1975 Murugesan and Muthukrishnan had started asserting their title to the suit property. Ex.A-22 is an usufructuary mortgage deed, which in my view does not relate to the suit property and is not relevant. Ex.A-23 is the notice by counsel for Muthukrishnan and Murugesan bearing date 13.7.1984 addressed to Kuppammal, Govindaraj, Kuppan alias Shanmugam, Govindan, Sathurbujam, Jayaraman all residing at No.145, Melpatti Ponnappa Mudali Street, Kuppammal residing at No.22 Manicka Vinayagar Kovil Street, and Govindaraj at No.145, Melpatti Ponnappa Mudali Street. The notice alleges trespass in 1979 and further says that those persons have been occupying the small portions and further referring to the dismissal of suit O.S.No.3551 of 1982 by Kuppammal on 22.6.1984. Ex.A-24 is a reply issued on behalf of Kuppammal disputing the ownership of Murugesan and Muthukrishnan, and further saying that Kuppammal and Govindammal W/o Govindan are in absolute possession and enjoyment of 70’ x 36’ in their own right, that the sale deed dated 5.7.1955 is void to the extent of the land in the possession and enjoyment of Kuppammal and Govindammal, as there was no mention of the usufructuary mortgage dated 9.2.1947, that Murugesan and Muthukrishnan were not in possession from 1955, that only Murugesan came to occupy about 2 years prior to the notice, that Murugesan as D.W.1 in O.S.No.3551 of 1982 had admitted to all these aspects, that Govindaraj son-in-law of Kuppammal was staying temporarily, that the trespass pleaded by Murugesan and Muthukrishnan had been found against in O.S.No.3551 of 1982, that only because declaration was not prayed for, the suit was dismissed, and the parties were going to prefer an appeal. Reply further states that Murugesan and Muthukrishnan had kept quiet for 5 years from 1979, that they had not explained their inaction for these 5 years. Reply further states that Murugesan and Muthukrishnan had kept quiet for 5 years from 1979, that they had not explained their inaction for these 5 years. It is to be noticed that the reply, in so far as, it says that Murugesan came to occupy only 2 years prior to the notice issued in 1984 may not be correct, in as much as, it has already been noticed that Murugesans name finds a place in the voters list of 1975 relating to the suit property. In the admission by Murugesan as D.W.1 in O.S.No.3551 of 1982 could be only in respect of 70 feet by 18 feet. 41. A rejoinder is issued under Ex.A-25 stating that the actual area in the occupation of Kuppammal was not admitted. Ex.A-26 is a notice dated 3.8.1984 stating that the survey number had been wrongly given in the earlier notice and it should be read properly as corrected. Ex.A-27 is a death certificate relating to Vellai Naicker stating that he died on 20.12.1949 in a hut in Melpatti Ponnappa Mudali Street. Exs.A-28 and 29 do not throw much light on the question on hand. 42. Let us now go to Ex.B series. Ex.B-1 is the sale deed dated 5.7.1955 by Brahalambigai Ammal, her son and daughters to Murugesan and Muthukrishnan. There is reference to the lady having obtained probate in O.P.No.241 of 1930. The document further says that possession had been given by the vendor to the purchasers. Description given in Ex.B-1 is as follows: “120 feet North-South by 40 feet East-West in Melpatti Ponnappa Mudali Street bounded on the North by the property belonging to the vendor, on the South by Mepatti Ponnappa Mudali Street, on the West by Gnanambal Ammal/R.S.No.780/4 part, and the East by land belonging to the vendor. Ex.B-2 is dated 13.11.1981. It is the patta issued to Murugesan and Muthukrishnan. Ex.B-3 series is a bunch of 10 property tax receipts relating to the suit property. Murugesan had paid property tax on 4.1.1977. This is followed by another payment of property tax for the first half of 1978-79 on 23.11.1978. Similarly receipts 3 to 12 are payments by Muthukrishnan and Murugesan for 2/1978-79, 1/1979-80 for the earlier period of 1/1976-77, 2/1976-77 (receipts dated 22.12.1977) and for 1/1979-80, 2/1979-80, 1/1980-81, 2/1980-81 and 1/1981-82. Murugesan had paid property tax on 4.1.1977. This is followed by another payment of property tax for the first half of 1978-79 on 23.11.1978. Similarly receipts 3 to 12 are payments by Muthukrishnan and Murugesan for 2/1978-79, 1/1979-80 for the earlier period of 1/1976-77, 2/1976-77 (receipts dated 22.12.1977) and for 1/1979-80, 2/1979-80, 1/1980-81, 2/1980-81 and 1/1981-82. These payments clearly show that Murugesan and Muthukrishnan had been exercising acts of ownership with regard to the suit property. 43. With regard to the property covered by Ex.A-1 it has already been referred to that Kuppammal has not chosen to file a suit for declaration nor did she seek amendment of the plaint, even after observations had been made to that effect. Apparently, on legal advice as the basis on which she can seek declaration may not have legal legs to stand. Apparently, she did not want to take the risk of the burden of proof being fastened on her. She was rest content to pursue her remedy for perpetual injunction and mandatory injunction. She cannot claim by adverse possession. No doubt, in the plaint it was stated that Narayanaswamy and Rajammal, after the dismissal of the suit filed, continued in possession and prescribed for title by adverse possession. Adverse possession cannot commence during the subsistence of the mortgage. It is not open to her to claim adverse possession. She traces her title only through the mortgage and the recitals in the settlement deed also are rather strange. This has already been referred to in the earlier part of this judgment. They can if at all plead any adverse possession only after the period for redemption got over i.e., only from February, 1979. But then Sec.27 of the Limitation Act would come into operation. Sec.27 only extinguishes the right and does not provide in terms in whom the right is to vest. The title to immovable property cannot be in medio or in the air and on its extinguishment it will vest in the trespasser provided the trespasser had prescribed for title by adverse possession. The possession of Kuppammal or her purchasers prior to 1979 cannot be that of trespasser. 44. This is a peculiar situation where Sec.27 of the Limitation Act operates against Murugesan and Muthukrishnan but then Kuppammal had not completed the 12 years on the dates the various suits were filed as trespasser. The possession of Kuppammal or her purchasers prior to 1979 cannot be that of trespasser. 44. This is a peculiar situation where Sec.27 of the Limitation Act operates against Murugesan and Muthukrishnan but then Kuppammal had not completed the 12 years on the dates the various suits were filed as trespasser. The criteria for adverse possession are not satisfied. 45. The question therefore is whether Kuppammals possession can be protected by a decree for injunction and what is basis for or what is her entitlement to it. How and where does she get the right from. Except her alleged possession. She cannot claim to be in possession for even the statutory period after 1979. We have already noticed that Murugesan and Muthukrishnan had established their possession at least from 1975 before the mortgage got extinguished. Does law require him to apply for redemption by a suit, if he can otherwise get possession. 46. In these circumstances, the proper course would be to decree the suits by Murugesan against all persons except Kuppammal. So far as Kuppammal is concerned, we have already noticed that she did not choose to have the plaint amended seeking declaration of title. She wants to maintain her possession. The proper thing would be to direct the lower court to appoint an Advocate Commissioner to visit the suit property and fix the portions in the actual possession of Kuppammal and submit a report. For doing that the Advocate Commissioner has to take the assistance of a Surveyor. So far as the other suits are concerned, plaintiffs are entitled to have a decree in their favour. Consequently, the appeals will stand allowed. However, so far as Kuppammal is concerned the directions earlier given have to be followed and if the portion in her possession is fixed by the Advocate Commissioner she will be entitled to have her possession protected with regard to that area. It is also made clear that she cannot ask for a larger area than she is in occupation. Even if it is found that she trespassed into any area that should also be noted and she must get out from that area also. The other suits filed by Murugesan will stand decreed. Judgments and decrees of the courts below will stand set aside and the suit for recovery of possession will stand decreed.