Mortgage


 

I am sincerely asking suggestion to vacate the permanent injunction against the appellants
 
Grounds and Facts : The mortgage was executed by the appellant grand father M S/o N ( Mortgagor) in favor of respondent father C S/o D(IInd Mortgagee) as per the vide document : XXX/1945-46 100/- stated for that “ The respondent father has to pay the sum of Rs 50 to the previous mortgagee A S/o B ( Ist mortgagee) and get endorsed the same and keep the mortgage deed with them for the worth of 50/-“. The same mortgage was endorsed by appellant grand mother “MW” W/o “M”  on 29-01-1951 and endorsement was written by the IInd Mortgagee C S/o D with the witnesses of the villagers. Which is after the execute of the second mortgage to the C S/o D (IInd Mortgagee).From the above facts clearly shows that the mortgage was only corroboratory purpose and possession was not delivered to the mortgagee by mortgagor. The mortgagor was made lease agreement with the previous mortgagee A S/o B for raising the crops time to time and delivering crops to the mortgagee for the interest of mortgaged money, agreement was made on 26th June 1942 and continued the same up to endorsement of the mortgage on 29 -01-1951 and IInd mortgagee "C" has the knowledge of the possession of SSP with the Mortgagor M S/o N
 
a) Mortgage was executed by the M S/o N of the Sy “yyy” in Village , Mortgage period is 3yrs. Condition: fail to redeem the mortgage continue in the possession of the property till the redemption.
 
b)The IInd mortgagee has to endorse the Ist mortgage from the I st mortgagee as per the IInd mortgage deed and keep the mortgage deed with endorsed for the worth of 50/- in the mortgage principle money: -- The mortgage was endorsed by the Mortgagor from the Ist mortgagee with the written statement and witness of IInd mortgagee ( Bikkallam) and original mortgage deed with endorsement copy retained by the mortgagor. Which shows the possession and mortgage was redeemed by the mortgagor M S/o N.
 
Order BY lower Court (CJ and JMFC).
 
a) Exparte injunction order on 1/12/07 allowed and confirmed.
b) Defendents restrained by order of temporary injunction not to cut and remove the eculyptus tress.
 Following grounds:
a)      The mortgage was not redeemed with in 30yrs, so granted the temporary Injunction in favor of plaintiff.
b)      The mortgage deed copy, photocopy of the SSP and, EC and death certificate.
c)      The defendants submitted the 20 copies of revenue records of the SSP.
d)      The lawful possession and enjoyment of the SSP as on date and redemption of the mortgage and in trial mortgage subsist decision.
e)      The defendants failed to show the property was redeemed.
f)        RTC show that “C” ige Bhogya” in colmn 11 of RTC.
g)      The property redeemed no necessity of filing the declaration suit Is XXX/08, as 1157/09 Sr Div.
h)      Not filed the third party affidavit from the adjacent owners of the SSP to show the after mortgage was redeemed and enjoying.
i)        Police complaint against the defendants on 17-2-2008 for the interfering the SSP.
Error in lower court:
   i.      Lower court not considered the 20 documents submits to show the physical possession of the SSP and enjoyment.
 ii.      Not render the cogent reason while confirming the injunction.
iii.      No findings on Citation produced.
iv.      Not examine the physical possession of SSP, while granting the injunction.
 v.      Police complainant not shows the physical possession of SSP.
 
Documents submitted by appellants for Appeal :
 
1)     Ist mortgage deed in favor of A S/o B respect of SSP.
2)     Mutation extracts MR3/1941-42 issued by the Tahashildar stands in the name of Ist mortgagee.
3)     Lease agreement on 26-6-1942 to 1946 retains the possession with the mortgagor.
4)     Mutation extracts MR3/1941-42 issued by the Tahashildar stands in the name of Ist mortgagee.
5)     Mortgage deed on 6-7-1945 in favor of IInd mortgagee C S/o D respect of the SSP.
6)     Mutation extracts MR8/44-45/issued by the Tahashildar stands in the name of IInd mortgagee.
7)     Release deed By the IInd mortgagee’s son ” H” in favour of the Mortgagor son Bylappa on 15-5-1959 in respect SSP.
8)     Contnuing Mortgage in favour of the Co-operative society “Village  “ by mortgagor’s son “Ma”S/o “M” in respect of SSP
9)     Mutation extracts MR7/1964-65 issued by the Tahashildar stands in the name of Mortgagor‘s son “Ma”S/o “M” in respect of SSP.
10) ARCS DD Dispute 1431/1971-1972 dated 21-12-1971 and awards a decree wide CEP NO: 247/72-73 on 15-3-1973 the decreed money was deposited by “Ma”S/o “M”  and retains the possession of the property.
11) EC from the 1-8-1920 to 2008 shows the no transaction after the continuing mortgage in favor of Co-operative society Village.
12) Patta book in the name of “Ma”S/o “M”  in respect of SSP.
13) Tax paid receipts of the SSPP till date of 20 nos.
14) The sale receipt of eucalyptus trees issued by the “ PP” in favor of defendants/ Appellants in respect of SSP.
15) Spot Mahazar conducted by the Tahashildar to ascertain the possession of the SSP.
16) Continuing mortgage deed release on 2-6-2008 in respect of ssp stands in the name of Appellants.
17) Affidavit filed the adjacent owner’s of the SSP to disposes the mortgage was redeem and possession of the SSP with the appallents..
18) Affidavit filed by the Ist Mortgagee’s son A S/o B to disposes the mortgage was redeemed and possession retain with the appallents.
19) Statement made before the PSI in Cmis 89/2009 on 13-3-2009 by the respondents other heirs, shows the possession retain with the Appellants.
20) RTC of 2009-10 stands in the name of appellants.
21) Mutation MR12/2007 stands in the name of appallants.
22) Mutation Extract MR 15/1998-99 partition executed by the legal heirs of C S/o D, Sy No  “ yyy” not found.
 
“ Questions”
a)     Permanent injunction against the appellants can be vocated?
b)    Any others citations in favour of appellants please suggest me.
c)     Any other grounds required ???
 
Thanks for your valuable time
 
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