Case: Venugopal Padayachi (Dead) through L.Rs Vs. V. Pichaikaran (Dead) through L.Rs

1. On the basis of a document dated 20th March 1959, which was styled as simple mortgage, Original Suit No. 2249 of 1981 was filed by the Respondent/original Plaintiff praying for redemption of mortgage and for recovery of possession2. The Appellant/original Defendant in his written statement pleaded that under the aforesaid simple mortgage, the Defendant was not put in possession; that subsequently a document dated 12.11.1960 was entered into between the parties under which the original Plaintiff purported to convey title in favour of the Defendant; and, that it was in pursuance of this subsequent document that the Defendant was put in possession3. It must be noted here that the document dated 12.11.1960 being an unregistered document was not allowed to be exhibited and could not be relied upon as a document of title4. We need not advert to first round of the litigation whereafter the matter stood remanded. The trial Court after remand accepted the plea set-up by the Defendant that with effect from the document dated 12.11.1960, the possession of the Defendant over the land in question became adverse to the original Plaintiff. It was further found that since the suit was filed more than 12 years after the aforesaid document dated 12.11.1960, the Defendant had perfected his title by adverse possession. The suit thus came to be dismissed5. The findings rendered by the trial Court were affirmed by the lower Appellate Court and the appeal preferred by the original Plaintiff was dismissed6. The Plaintiff, being aggrieved, carried the matter further by filing Second Appeal No. 209 of 1989 in the High Court at Madras. The High Court framed the following substantial question of law:Whether the Courts below are right in law in finding adverse possession when the execution of the mortgage deed is not disputed by the Defendant?and, found as under:4. Admittedly, the Plaintiff executed a mortgage on 20.03.1959 in respect of the suit mentioned immovable property for a consideration of Rs. 300/-, which he borrowed from the Defendant. What was all contended by the Plaintiff before both the Courts below was that the Defendant was put in possession in lieu of interest on the mortgage but a reading of Ex. A1 mortgage would indicate that it was a simple mortgage simplicitor and hence the said contention of the Plaintiff/Appellant that the Defendant was put in possession in lieu of interest was rightly rejected. The case of the Defendant is that he purchased the property from the Defendant on 12.11.1960 for a consideration of Rs. 750/- in which the mortgage amount was adjusted. Both the Courts have not looked into the document since it was necessarily a registrable one but remains unregistered and hence the contention of the Defendant that he got the sale of the property cannot be countenanced. But it is an admitted position that the Defendant has been in possession of the property. Before both the Courts below, it was contended by the Defendant that he has also acquired title by prescription. Both the Courts have also accepted the contention though the sale deed filed by the Defendant was not marked and relied on by the parties. Under the stated circumstances, the Defendant could have got into possession on some understanding between the parties. However, from the available evidence, it would be quite clear that what was executed by the Plaintiff in favour of the Defendant was a simple mortgage and the Plaintiff has also filed a suit for redemption7. The High Court thus arrived at a finding that the Defendant could have got into possession on "some understanding", which was not the case set up by any of the parties. Holding the arrangement under the mortgage to be continuing, it accepted the appeal and passed a decree of redemption holding that the Plaintiff was entitled to deposit the mortgage amount with simple interest within a time frame8. The original Defendant is presently in appeal by special leave challenging the view so taken by the High Court. It must be mentioned here that during the pendency of this appeal, both the Plaintiff and the Defendant have expired. The heirs of original Plaintiff were brought on record and were served in the matter but they have chosen not to appear in this Court.

Reasoning:
With the assistance of the learned Counsel, we have gone through the document in question and find that the Defendant was put in possession pursuant to said documentThe issue is no longer res integra as the matter has been decided by this Court on few occasions13. In Rukmani Ammal (supra), this Court succinctly extracted the law on the subject and observed as follows: