K.V. SWAMYNATHAN AND ORS. versus E.V. PADMANABHAN AND ORS.

Citation: [1990] SUPP. 3 S.C.R. 709 · Decided: 21-12-1990 · Supreme Court of India · Bench: K.N. SAIKIA · Disposal: Dismissed
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Judgment (excerpt)

K.V. SWAMYNATHAN AND ORS. 
v. 
E.V. PADMANABHAN AND ORS. 
DECEMBER 21, 1990. 
[K.N. SAIKIA AND M. FATHIMA BEEVI JJ.] 
Constitution of India, 1950-Article 136-Concurrent findings of 
trial Court and High Court-Interpretation of document of title and 
finding of existence of adverse possession-Whether questions of law. 
A 
B 
Code of Civil Procedure, 1908---0rder 7, rule I-Suit for posses-
C 
sion-Delivery pursuant to Court's decree-Effect, of-Question of 
adverse possession-When arises. 
Transfer of Property Act, 1882-Sections 54, 55(f)-Sale-De/i-
very when takes place-Duty of seller indicated. 
The appellants-plaintiffs instituted a suit (O.S. No. 298/76) 
against the respondents-defendants, for title and exclusive ownership of 
the suit-properties in T.S. No. 666/2 and for recovery of possession and 
for damages for wrongful use and occupation of the properties by the 
defendants. 
The appellants-plaintiffs' case was that originally the suit-pro-
perties were joint-family properties of one Annayyar, who adopted one 
Vakil Ramaswamy as his son. After the adoption he had three aurasa 
sons-Ellayar, Sankaranarayana Iyar and Meenakshisundaram Iyer. 
D 
E 
On 21.8.1896, a partition was entered Into between the Annayyar F 
and his sons and the properties including the suit-properties were allot-
ted to the aurasa sons. 
On 31.5.1926 over the properties, the aurasa sons executed. a 
mortgage deed In favour of one Yaghasami Iyer, who obtained a decree 
f"tling a suit (O.S. No. 147 /1932). 
G 
On 4. 7 .1934 when the hypotheca was brought to sale by the mort-
gagee in execution of the decree in O.S. No. 147 /1932, the aurasa sons 
executed a subsequent mortgage deed in favour of one Salem Bank. 
On 9.12.1942, the Bank mortgaged the properties to the father of H 
709 
710 
SUPREME COURT REPORTS 
[1990] Supp. 3 S.C.R. 
A the appellants. While so, he also purchased vide a sale deed an undi-
vided l/3rd share of the equity of redemption in the properties from 
Sankaranarayana Iyar, one of the aurasa sons of Annayyar. 
On 12.12.1942, Ellayyar, another aurasa son, entered into an 
B agreement with the father of the appellants for the sale of his 1/3rd 
share. 
Defendants 13 and 14, meanwhile, in collusion with Ellayyar 
brought into existence a sale deed in their favour by antedating an 
agreement for sale of his share. This forced the father of the appellants 
• · 
to file a suit (O.S. No. 202of1942) against Ellayyar and his sons and the 
C 
defendants 13 and 14, for specific performance of the agreement for 
sale. The suit was decreed in favour of the father of the appellants, 
against which appeal preferred, was also dismissed. 
On 7.2.1945, in pursuance to the decree, the Court executed a sale 
0 
deed in favour of the father of the appellants, and symbolic possession 
of the properties was taken by him. 
The appellants contended that their father had mortgage rights 
over the suit-properties in T.S. No. 666/2 and he had become the owner 
of the equity of redemption in respect of 2/3rd of the properties in T .S. 
No. 665 and T .S. No. 666. The balance share of 1/3rd was purchased by 
E 
the defendants 13 and 14 from Meenakshisundaram, the youngest 
aurasa son of Annayyar, on 29.12.1942. 
F 
G 
H 
The father of the appellants filed a suit for partition and separate 
possession of the 2/3rd share (O.S. No. 54 of 1950) against the 
defendants 13 and 14. 
On 28.3.1950, a preliminary decree for partition and separate 
possession was passed by consent of the parties. When the fmal decree 
proceedings were pending a compromise was entered into by the 
parties, according to which, final decree was passed on 6.10.1950. 
As per the fmal decree the properties were demarcated and allot-
ted between the parties and on 19.1.1953 the father of the appellants 
was issued possession receipt, who could take only the symbolic posses-
sion of the properties, because tenants were there in the properties. 
Since then the father of the appellants and the appellants were in pos-
session of the suit-properties. 
.• 
SWAMYNATHAN v. PADMANABHAN 
711 
Further the appellants-plaintiffs averred in the instant suit-plaint 
A 
that a portion of the land was acquired by the Municipality and in C.C. 
No. 3 of 1957 the Municipality was ordered to pay the appellants com-
pensation for the land acquired by it. 
It is stated that the names of the appellants were recorded iu 
Revenue Recor~ and in the Town Survey Field Register and the House B 
Tax Demand Register o
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