High Court Kerala High Court

B.Madhavi Amma vs K.Karunakaran Nair on 3 February, 2011

Kerala High Court
B.Madhavi Amma vs K.Karunakaran Nair on 3 February, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 111 of 1998()



1. B.MADHAVI AMMA
                      ...  Petitioner

                        Vs

1. K.KARUNAKARAN NAIR
                       ...       Respondent

                For Petitioner  :SRI.K.P.SREEKUMAR

                For Respondent  :SRI.P.KESAVAN NAIR

The Hon'ble MR. Justice S.S.SATHEESACHANDRAN

 Dated :03/02/2011

 O R D E R
                S.S.SATHEESACHANDRAN, J.
                ---------------------------------------
                    S.A.No.111 of 1998
                ---------------------------------------
         Dated this the 3rd day of February, 2011

                           JUDGMENT

Plaintiffs in a suit for redemption,

O.S.No.122/84 on the file of the Additional Munsiff’s Court,

Nedumangad are the appellants. Both the courts below

have negatived their claim for redemption of the suit

property, finding merit in the contentions taken by the

respondent/defendant denying the mortgage, and of

claiming anterior possessory right over the suit property,

more than a decade before the alleged mortgage, by way

of trespass, with a further plea of prescribing title over the

same by adverse possession. Before the lower appellate

court, the plaintiff had moved an application for amending

the plaint to seek an alternative relief for recovery of

possession on the strength of their title, but that was also

turned down as belated while dismissing their appeal, and

confirming the dismissal of the suit by the trial court.

S.A.No.111 of 1998

:: 2 ::

2. Short facts necessary for consideration of

the substantial questions of law raised for disposal of the

appeal can be summed up thus:

Suit property having an extent of 8 cents was

obtained by the 1st plaintiff under Ext.A6 partition deed.

Second plaintiff is her daughter and 3rd plaintiff, her son in

law. Pursuant to Ext.A6 partition deed, the 1st plaintiff

executed Ext.A3 mortgage deed over the suit property, for

a sum of ` 5,000/-, in favour of the defendant and put him

in possession of the property. A term of 6 years was fixed

under the deed after which right to redeem was to

commence. Subsequently, she executed A2 settlement

deed in favour of her daughter, 2nd plaintiff, authorising

her to redeem the property, and the 2nd plaintiff in turn

executed Ext.A3 sale deed authorising her husband 3rd

plaintiff, to redeem the property. When the period fixed

was over, alleging that the defendant has committed

damage to the tune of ` 2,000/- and the improvements

S.A.No.111 of 1998

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effected by him for digging a well, that alone, was ` 100/-,

the plaintiffs, all of them together, laid the suit for

redemption, seeking adjustment of the sum due as

damages in the mortgage price payable to the defendant.

3. The defendant resisted the suit claim

disputing the mortgage (Ext.A1) and contended that the

property belongs to him. He claimed of obtaining

possession over the property by trespass in 1965, and of

conducting a tea shop in the building put up by him.

Ext.A3 mortgage is a fraudulent document created by the

plaintiffs to claim right over the property, was his further

case. He also contended that the 1st plaintiff has not

obtained right over the property under Ext.A6 partition

deed. Impeaching Ext.A3 mortgage deed as not binding

on him and disowning his liability to surrender the

property as a mortgagee, he further contended that

Ext.A1 is the product of fraud and impersonation. In the

alternative, it was contended that if at all the plaintiffs

S.A.No.111 of 1998

:: 4 ::

have any right over the suit property, their rights have

been lost by adverse possession and limitation by his

continuous hostile possession over the property from 1965

onwards. Claim for a sum of ` 20,000/- towards value of

improvements was also canvassed, if for any reason, the

property is found to be redeemable.

4. The trial court, on the pleadings of the

parties, raised the following issues:

(i) Whether the plaintiffs are entitled to

redeem the mortgage, and if so, the claim

of damages raised, or any part thereof, is

sustainable?

(ii) Whether Ext.A3 mortgage deed is binding

on the defendant?

(iii) Is the suit barred by limitation and adverse

possession?

(iv) Has the defendant any special right over

the property and

(v) What, if any, is the value of

improvements?

5. On the materials tendered by both sides,

which consisted of Pws.1 to 5, Exts.A1 to A11 for the

S.A.No.111 of 1998

:: 5 ::

plaintiffs, DWS.1 and Exts.B1 to B15 for the defendant and

Ext.C1 report prepared by the advocate commissioner,

after conducting local inspection over the suit property,

the trial court came to the conclusion that the defendant

had come into possession long before Ext.A3 mortgage

and that there was no clinching evidence to conclude that

he is a mortgagee under Ext.A1 deed. His possession was

not under Ext.A1 deed, but by trespass over the property

much earlier, as contended, was found more probable to

the trial court, which concluded that the plaintiffs are not

entitled to redeem the property as if the defendant was a

mortgagee over the property. Since there was no prayer

for recovery of possession on the basis of title, the trial

court held that the suit has to be dismissed. The trial court

also held that the materials tendered in the case

supported his claim of special right over the property, as it

indicated that he had constructed a building, dug a well,

and effected various improvements in the property.

S.A.No.111 of 1998

:: 6 ::

Though the question of title of the plaintiffs over the

property was not cast as an issue in the suit, the trial court

examined that also to consider the plea of adverse

possession and limitation raised by the defendant and,

then, upholding such challenges mooted by the defendant

to resist the redemption, the suit was dismissed.

6. The lower appellate court, in the appeal

preferred by the plaintiffs against the dismissal of their

suit, turned down their request for amendment of the

plaint to seek recovery of possession on the strength of

their title, rejecting the application moved in that regard

as belated. Re-appreciating the materials tendered in the

case, that court concurring with the view of the trial court,

confirmed the dismissal of the suit.

7. Substantial questions of law raised for

consideration in the appeal are thus:

(i) Has the defendant pleaded and proved his

case of adverse possession and limitation?

S.A.No.111 of 1998

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(ii) Are not the plaintiffs entitled to get recovery

of property on the strength of their title, even

if the mortgage deed in favour of the

defendant is not proved.

(iii) Can the production of the licence to conduct

tea shop in the schedule building and

possession over the building from 1973 to

1984 to prove adverse possession and

limitation.

(iv) Are not the plaintiffs in the case entitled to

rely on the legal presumption that possession

follows title?

(v) Is the appellate court justified in dismissing

the petition for amending the plaint on the

basis of the documents produced in the case?

(vi) Is the court justified in rejecting the petition

for production of fresh documents if the said

documents are vital and a just decision

demands their acceptance in evidence?

8. I heard the counsel on both sides. Both the

courts below have mis-appreciated the facts and

circumstances involved, and also the materials tendered

S.A.No.111 of 1998

:: 8 ::

in the case, and the claim of the appellants/plaintiffs for

redemption of the property was negatived placing

unmerited value on the defence projected by the

respondent/ defendant to deny the execution of Ext.A3

mortgage deed, is the submission of the learned counsel

for the appellants. Even assuming there is some force in

the plea of the defendant to deny Ext.A3 mortgage, where

the plaintiffs have produced Ext.A6 partition deed showing

the pre-existing title of the 1st plaintiff over the suit

property, the lower appellate court should have allowed

the application moved for amendment of the plaint, to

seek recovery of possession of the property on the

strength of their title, according to the counsel. Dismissal

of that application, by the court below holding it as highly

belated, it is submitted, is totally unjustified especially

where the trial court, without raising an issue over title,

rendered an adverse decision against the plaintiffs

upholding the claim of adverse possession canvassed by

S.A.No.111 of 1998

:: 9 ::

the defendant with a further finding that the suit claim for

redemption is barred by limitation. Plea raised by the

defendant denying the execution of Ext.A3 mortgage, and,

at the same time, setting forth a claim of adverse

possession and limitation, disputing the title of the

plaintiffs over the suit property, should have been found

to be unworthy of any merit, and the suit claim for

redemption proved by the materials deserved only to be

allowed, is the submission of the counsel.

9. Per contra, contending that no interference

with the concurrent decision rendered by the two courts

below that the plaintiffs are not entitled to redeem the

property and that the defendant has established his right

over the property, as having prescribed title by adverse

possession, the learned counsel for the respondent

submitted that on the materials placed, the plaintiffs have

miserably failed to show that the defendant was put in

possession of the property under Ext.A1 mortgage deed.

S.A.No.111 of 1998

:: 10 ::

His possession over the property long prior to Ext.A1

mortgage deed asserting his title over the same, is

demonstrated by the materials tendered in the case, is the

submission of the counsel. When Ext.A1 mortgage was

denied by the defendant contending that his possession is

not as a mortgagee, and that such deed is the product of

fraud and impersonation, it is submitted, burden was upon

the plaintiff to prove that the defendant is in possession

of that property under Ext.A1 mortgage deed. The

evidence of Pws.2 and 3, the document writer and an

attester respectively to Ext.A3, examined by the plaintiff,

according to the counsel, as rightly found by both the

courts, not only does not assist the plaintiff in proving the

possession of the property by the defendant as a

mortgagee under the deed, but, on the contrary, support

the case of the defendant that after committing trespass,

at least one decade before the mortgage, he had come

into possession of the property and continued to be in

S.A.No.111 of 1998

:: 11 ::

possession and enjoyment effecting valuable

improvements, including the construction of a building,

asserting his hostile animus to the real owner. Both the

courts below have rightly and correctly held that the

defendant has prescribed title over the property by

adverse possession and limitation, and the claim of the

plaintiffs even assuming that they have any title,

according to the counsel, is barred by limitation. No

interference with the concurrent findings made by the

courts below, on the proved the facts and circumstances

involved and the materials placed in the case, is called for,

is the submission of the counsel. The dismissal of the

application moved for amendment of the plaint by the

lower appellate court also does not call for any

interference in the given facts of the case and, more so,

where the suit commenced more than three and a half

decades ago is the further submission of the counsel to

contend that this appeal deserves only to be dismissed.

S.A.No.111 of 1998

:: 12 ::

10. The defendant in the suit, who is shown to

be a mortgagee in possession of the suit property under a

registered mortgage deed, Ext.A1, has denied his status

as a mortgagee, contending that his possession over the

suit property commenced much earlier as a trespasser,

and he had put up constructions in the property and

continued in possession denying the title of the owner,

whoever he may be, and by such continuance for the

statutory period he has prescribed title over the property

by adverse possession. Suit being one for redemption of

the mortgage covered by a registered deed Ext.A1, what

is the burden cast upon the plaintiffs who claim to be the

mortgagors to sustain their right to redeem it by way of a

decree from the court when resistance thereof is put up by

the defendant disputing the mortgage and setting up title

to himself contending that he had been in possession long

prior to the mortgage and the creation of the mortgage is

only a fraud by the plaintiffs to defeat his valuable

S.A.No.111 of 1998

:: 13 ::

interests in the property, is the pivotal question emerging

for consideration in the case. Have the plaintiffs to prove

their title over the suit property and then seek recovery of

possession of the property, where the defendant disputed

his status as a mortgagee, on the strength of their title, is

yet another question that may demand an answer in the

facts involved. As adverted to earlier, the plaintiffs had

sought for an amendment of the plaint to claim recovery

of possession on the basis of their title at least before the

lower appellate court, but that request was denied holding

that it was belated. Though the suit was one for

redemption and no issue was raised on the basis of the

contention of the defendant as to having prescribed title

by adverse possession the trial court had entered a

finding that the plaintiffs had lost their title upholding the

claim of adverse possession of the defendant. Such being

the situation, at the outset, it has to be stated whether or

not the request by the plaintiffs for amendment sought for

S.A.No.111 of 1998

:: 14 ::

is warranted in the case, the lower appellate court was not

at all justified in turning down the amendment application

moved in appeal by the appellants/ plaintiffs for the

reason that it was ‘belated’.

11. Perusing the judgments rendered by the

trial court as also the lower appellate court, it is seen that

the tenability of the objection canvassed by the defendant

disputing a registered mortgage deed over the suit

property has not been appreciated and considered with

reference to the law applicable to mortgages and the

rights and liabilities of the mortgagor and mortgagee as

covered by the Transfer of Property Act. Leaving aside

the question whether the denial of the mortgage by the

mortgagee would warrant amendment and conversion of a

suit for redemption into one for recovery of possession on

the strength of title, how far and to what extent and under

what circumstances a person in possession of a mortgage

holding, who is shown to be the mortgagee under a

S.A.No.111 of 1998

:: 15 ::

registered instrument, can set up a title adverse to the

mortgagor and if such a defence is raised in a suit for

redemption, how it has to be analysed has to be

examined.

12. Ext.A1 is the registered mortgage over the

suit property which, prima facie, discloses that for a

mortgage price of ` 5,000/- obtained as a loan from the

defendant, as a security thereof fixing a redemption

period of 6 years, the defendant was put in possession of

the property. Ext.A1 deed is imputed as a fraudulent

document created by the plaintiffs to defeat his interests

over the property is the case of the defendant, contending

that he is in possession of the property not as a

mortgagee, but as a trespasser which had commenced

long prior to Ext.A3 mortgage. Ext.A3 mortgage is

executed by the 1st plaintiff wherein her antecedent title

over the property obtained under Ext.A6 partition deed is

spelt out. In view of the denial of the mortgage by the

S.A.No.111 of 1998

:: 16 ::

defendant, Ext.A6 partition deed had also been produced

by the plaintiffs. In addition, plaintiffs have also produced

Ext.A4 series evidencing payment of revenue charges

over the property from 1965. Pursuant to Ext.A1,

mortgage, the transfer effected in favour of the 2nd

plaintiff and later from that plaintiff to the 3rd plaintiff, as

alleged by the plaintiffs, is proved by producing Ext.A2

settlement deed and Ext.A3 sale deed. Ext.A7 is another

mortgage deed obtained from the 3rd plaintiff and another

by the very same defendant in respect of an adjoining

property. The plaintiffs also tendered materials showing

that the defendant had moved an application before the

Tahsildar (Ext.A8) to effect mutation in his name over the

property and a notice thereof was issued to the patta

holders, the plaintiffs seeking their objections. Ext.A9 is

the copy of the notice received by the plaintiffs from the

Taluk Office on Ext.A8 application moved by the

defendant as aforementioned. Over and above these

S.A.No.111 of 1998

:: 17 ::

documents, to substantiate that they have title over the

property and the defendant is only a mortgagee, plaintiffs

produced Ext.A10 and Ext.A11 building tax receipt and

demand notice from the Local Authority in respect of the

building, which is made mentioned of in Ext.A3 mortgage

deed. As against the documentary materials tendered by

the plaintiffs, the defendant produced D1 to D15 to

sustain his case that he has been in possession over the

suit property from 1965 onwards and it was by way of

trespass denying the title of the real owner. Those

materials tendered by the defendant have been relied by

both the courts to uphold his claim of being in possession

as a trespasser of the suit property and not as a

mortgagee under Ext.A3 mortgage deed.

13. What is the value of Ext.A1 registered

mortgage deed and how far a denial of such mortgage

deed by the defendant where he is shown to be a

mortgagee under such instrument is the primary question

S.A.No.111 of 1998

:: 18 ::

that has to be considered to examine the suit claim for

redemption. The very purpose of the Registration Act is to

guard against the fabrication of false documents of title

from time to time. The real purpose of registration is a

check to provide good evidence of the genuineness of

written instruments. It is intended to provide a guarantee

of the genuineness of the instrument and further to give

notice to persons as to the dealings with respect to a

property. In a case where execution of the document is a

matter in issue between the parties to that instrument,

registration, by itself, is not sufficient to prove its

genuineness, nor dispense with necessity of independent

proof. As if the execution of the instrument Ext.A3

mortgage deed was under challenge in the case, it is seen,

both the courts have proceeded to appreciate the

evidence let in by the plaintiffs who had taken steps to

examine Pws.2 and 3, the scribe and attester to that

instrument to show the genuineness of the transaction

S.A.No.111 of 1998

:: 19 ::

covered by that instrument. PW.3 is none other than the

elder brother of the defendant. Though he admitted his

signature as attester to Ext.A3 mortgage deed, he

supported the contentions of the defendant as to having

possession much prior to the document and, in fact, not

under the instrument. PW.2, the scribe, who prepared the

original of Ext.A3 mortgage deed, in his evidence stated

that the defendant was not present when the mortgage

deed was prepared, and, the details were furnished at his

office. He had specifically asserted that the mortgage

deed was signed by the executant, the 1st defendant and

also the attesters at his office. However, both the courts

below found considerable merit in the case canvassed by

the defendant that the mortgage deed was executed

without his knowledge, placing emphasis on the statement

of PW.2 scribe that he was not present when the

document was prepared and also that of the brother of the

defendant, one of the attesters to the mortgage deed that

S.A.No.111 of 1998

:: 20 ::

the defendant continued in possession much earlier to the

deed as a trespasser. To say the least, the approach

made by the courts below in examining the registered

mortgage deed, the execution of which is proved by the

evidence of Pws.1 to 3, on the circumstances referred to

above as deposed to by Pws.2 and 3, to consider the

question involved arising from the denial of the defendant

disputing his possession over the property as a

mortgagee, but as a trespasser, is egregiously erroneous

and in fact against the settled principles of law. As

indicated earlier, the validity of the mortgage deed over

the suit property duly registered under the Registration

Act, and the legal presumptions attached thereto following

from the registration certificate endorsed on the

instrument, with the evidence proving its execution by the

mortgagor, was not even taken note of by the courts

below, both of them, while the challenge against that

deed by the defendant was upheld on the innocuous

S.A.No.111 of 1998

:: 21 ::

circumstances presented in the evidence of Pws.2 and 3.

The fact that the document was duly executed and

endorsed with the certificate of registration, is prima facie

evidence that the requirements of the Registration Act

have been complied with, and, after such endorsement,

the burden of proving any act or omission, which would

invalidate the registration rests on the person who

challenged the registered deed. The distinction between a

fraudulent registration and a challenge against the

contents of a registered document is quite different and

further the legal approach in impeaching a registered

instrument on such distinct ground, differ from one

another. So far as the challenge against the fraudulent

registration, it is a case where the challenge is that the

instrument itself is void. But in the case of a challenge as

to contents of a registered instrument, whatever be the

reason thereof, the instrument, at the most, is voidable at

the instance of the party, who sets up such a challenge.

S.A.No.111 of 1998

:: 22 ::

The party, who seeks to impeach the registration of a

document, upon him is the burden of proving the facts

which he allege to invalidate that instrument. So far as

the execution of a mortgage under a registered

instrument is concerned, the presence of the mortgagee

or his acceptance of the mortgage deed is not warranted.

So this was a case where registration of Ext.A3 mortgage

deed as required by law and execution of such instrument

by the mortgagor, the 1st plaintiff, has been proved,

shifting the burden on the defendant to substantiate his

challenge that such registered instrument was, in fact, a

fraud practised to defeat his valuable rights over the suit

property, which according to him, came to his possession

by trespass at least 11 years before Ext.A3 mortgage

deed. Though he is alleged to have trespassed over the

suit property a decade before the execution of Ext.A3

mortgage deed, he has not pleaded as to who is the owner

of such property, against whom by continuous and

S.A.No.111 of 1998

:: 23 ::

uninterrupted possession, a plea of adverse possession by

title had been set up in the suit. Assuming that he was a

trespasser as pleaded, still he could acknowledge the title

of the real owner and obtain a mortgage with the liability

to be redeemed on payment of the mortgage price. So

much so, the challenge raised that he was a trespasser to

the property would not improve his case especially where

the statutory period to prescribe title by having

continuous uninterrupted possession from the date of

trespass had not ben completed as and when Ext.A3

mortgage deed was executed, if it is shown to be genuine,

and his possession after such mortgage was only as a

mortgagee of the land. Plaintiffs have proved the

execution of Ext.A3 mortgage deed and further their

antecedent title over the suit property which was

mortgaged under that instrument. As against the claim of

the plaintiffs proved, with respect to execution and their

antecedent title over the mortgage holding, what has

S.A.No.111 of 1998

:: 24 ::

been tendered by the defendant are only materials to

sustain that his continuous possession as a trespasser

over the property from 1965 onwards. He was a

trespasser over the property before the registered

mortgage was executed in his favour would not in any way

assist him unless he is able to prove and establish that the

execution of Ext.A3 mortgage deed was a fraud

committed by the 1st plaintiff, the mortgagor, to defeat his

valid rights over the property. His possession was not

under the mortgage despite the execution of the

registered instrument necessarily has to be established

showing that the mortgage deed is fraudulent and not

binding on him. On that aspect, it is seen, other than the

denial of the registered mortgage deed disputing

knowledge over the same, the defendant has not

produced any worth mentioning evidence in the case.

Even the materials tendered by him would disclose that he

had been conducting a hotel by name ‘Janatha Hotel’ at a

S.A.No.111 of 1998

:: 25 ::

far away place from the mortgaged land previously and,

later, it was shifted to the suit property covered by the

mortgage. B1 is a registration certificate issued by the

District Labour Officer in respect of his tea shop ‘Janatha

Hotel’. That certificate was issued after the execution of

Ext.A3 mortgage deed, i.e., on 26.11.1975 with the fee

paid over the renewal for the previous years as well.

Ext.B1 in no way assist the defendant in showing that he

conducted the tea shop in the suit property before Ext.A1,

leave alone his possession over such property. Ext.B2 is

an order form dated 26.6.1968 for the purchase of a fan.

The name and address of the defendant with respect to a

hotel is shown under that document hardly improves his

claim of having possession of the suit property before the

mortgage. B3 is a receipt evidencing payment of the

charges payable under the PFA Act. That receipt is dated

6.7.1973. There is nothing in that document indicating

that he was then operating the tea shop in the suit

S.A.No.111 of 1998

:: 26 ::

property. B4 is a demand notice issued by the Executive

Officer of the Local Authority dated 15.5.1975 directing

the defendant to take a licence under the Prevention of

Food Adulteration Act to operate the tea shop. That notice

dated as above is indicative that it was after Ext.A3

mortgage deed. Ext.B5 is a receipt dated 12.11.1975 as

to payment of some charges to the Local Authority in

relation to his tea shop. Particulars of the shop or where

it is located are not borne out by the receipt. Ext.B5(a) is

a similar receipt bearing the building No.KP VII/45 is

mentioned. Exts.B6 to B14 are some receipts and

communications received by the defendant in his capacity

as the manager of a hotel in some of which the name of

the hotel as ‘Janatha Hotel’ is also made mention of.

Ext.B15 is a copy of the plaint in another suit which was

also one for redemption filed by the 3rd defendant with

another against the very same defendant over a mortgage

holding admittedly enjoyed by the defendant, situate

S.A.No.111 of 1998

:: 27 ::

beside the present suit property under a registered

mortgage of the year 1976 obtained from the plaintiffs in

such suit.

14. None of the documents produced by the

defendant assist him in any way to show that Ext.A1 was

the product of fraud and his possession over the property

was not as a mortgagee under that deed. Denial of that

mortgage and a claim that he had anterior possession as a

trespasser by themselves would not advance his case of

having legal possession over the property independent of

the registered mortgage unless he is able to show that the

deed had been brought into existence by fraud, and more

so, when the materials tendered by the plaintiffs

unerringly establish, they have title over the property

which was mortgaged under Ext.A1 deed to the

defendants. Other than tendering some materials to show

that he had been in possession of the mortgaged property

earlier which, by itself, would not affect the validity of the

S.A.No.111 of 1998

:: 28 ::

registered mortgage, the defendant has not placed

anything, nor brought in any circumstance even to raise a

suspicion that the execution of Ext.A1 registered

mortgage in his favour by the 1st plaintiff was a fraudulent

registration, to defeat his interests over the suit property.

Both the courts below, without adverting to and analysing

the incidents of rights and obligations flowing from a deed

bearing a certificate of registration with the legal

presumptions arising thereunder, and overlooking that the

plaintiffs have established their antecedent title over the

mortgaged property, which is not shown to have been

impaired in any manner, directed its enquiry on irrelevant

and inconsequential questions to determine whether the

plaintiffs are legally entitled to redeem the mortgage

covered by Ext.A1 deed. In fact, in the given facts of the

case, there was no reason for the plaintiffs to seek any

amendment of the suit to have recovery of possession on

the strength of their title where the burden had shifted

S.A.No.111 of 1998

:: 29 ::

upon the defendant to rebut the presumption available

under Ext.A3 mortgage deed in favour of the plaintiffs,

which is further proved by the materials tendered showing

their antecedent title. As there was total paucity of

evidence to sustain the challenge of the defendant that

Ext.A1 deed was a fraudulent registration, the irresistible

conclusion follows that he is a mortgagee in possession of

the suit property under Ext.A1 deed mortgage deed. He

being a mortgagee under Ext.A1 deed, it follows that his

plea of adverse possession raising a claim of trespass over

the property long prior to the mortgage, that too without

disclosing, who is the owner of the property, nor even

admitting the title of the plaintiffs deserve only an out

right rejection. “Once a mortgagee ever a mortgagee”

applies with full force, in the case of the defendant, and

the contradictory and conflicting claims canvassed by him

repudiating his status as a mortgagee disputing Ext.A3

mortgage deed are devoid of any merit.

S.A.No.111 of 1998

:: 30 ::

15. Since the defendant has not claimed the

status of a mortgagee and disputed the title of the

mortgagor, plaintiffs over the suit property, the question

of value of improvements, if any, effected by the

mortgagee defendant was not raised and so much so, not

considered by the courts below. In the given facts of the

case, since such a claim has not been raised, needless to

point out, the defendant is not entitled to such benefit,

though he has been found to be a mortgagee in

possession negativing his case disputing such status. As

nothing more is required to be done by way of final decree

proceedings in the present suit, other than the deposit of

the mortgage price to terminate the relationship of

mortgagor-mortgagee between the parties, a decree is

passed allowing redemption of the suit property on

deposit of the mortgage price fixed under Ext.A1 deed.

Plaintiffs are directed to deposit the amount before the

court below, within a period of three months from today.

S.A.No.111 of 1998

:: 31 ::

On depositing the mortgage price, the plaintiffs are

allowed to redeem the property in execution of the decree

through court.

Reversing the judgment and decree of the

courts below, the appeal is allowed, directing both sides to

suffer their respective costs.

Sd/-

(S.S.SATHEESACHANDRAN)
JUDGE
sk/-

//true copy//

P.S. to Judge.