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Palikandi Katapurath Mammad and anr. Vs. Matancheri Mammad - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported in(1918)35MLJ315
AppellantPalikandi Katapurath Mammad and anr.
RespondentMatancheri Mammad
Cases ReferredAtchutayya v. Gangayya I.L.R.
Excerpt:
- - we cannot well allow that to be done in this case as plaintiff did not set up his right of subrogation in any of the lower courts and to do so now will complicate the enquiry......question of the amount paid by plaintiff on defendant's behalf and the question, what the arrangement between plaintiff and defendant was, whether to give a hypothecation or an usufructuary mortgage, may be considered. this suit for possession fails even if plaintiff has such a right.3. we think the decree of the subordinate judge is right and we dismiss this appeal with costs.
Judgment:

1. Plaintiff sued to recover the two items of property in suit on the strength of Exhibit A an usufructuary mortgage deed alleged to have been executed by the defendant to him. That document has been found by the lower appellate court not to be proved to have been genuine. It is argued before us that the burden of proof has been wrongfully placed by the Subordinate Judge on the plaintiff to prove that the document was genuine, because that document was found to be genuine by the District Registrar when he held an enquiry and ordered the compulsory registration of it even though the defendant, denied its genuineness before him. It is difficult to see how this can be allowed to affect the question, the burden of proof being in the first instance on the party setting up the document to prove its genuineness. It may be as held in the Full Bench case, Atchutayya v. Gangayya I.L.R. (1891) M. 138 that the Registrar was a court under Section 195 of the Code of Criminal Procedure when he held the enquiry. But that view cannot affect the question of burden of proof which is the question here. We think the Subordinate Judge was right in putting the burden on the plaintiff to prove his document when he sued on it.

2. The next point taken is that as plaintiff has paid off two previous usufructuary mortgages on the two items in favour of one Ali plaintiff should have been given Ali's rights under the doctrine of subrogation and this suit should have been decreed on that footing. Plaintiff's suit is for possession of the property. Assuming without deciding that plaintiff was entitled to be subro-gated to the rights of Ali he cannot recover possession in this suit on that footing as defendant was in possession of the properties as lessee of Ali even though the terms of the two leases Exhibits D and H have expired, The lease rights of defendant will have to be adjudicated upon before possession can be taken away from him. We cannot well allow that to be done in this case as plaintiff did not set up his right of subrogation in any of the lower Courts and to do so now will complicate the enquiry. Plaintiff may enforce his rights, if any, by way of subrogation in a fresh suit if so advised, when the question of the amount paid by plaintiff on defendant's behalf and the question, what the arrangement between plaintiff and defendant was, whether to give a hypothecation or an usufructuary mortgage, may be considered. This suit for possession fails even if plaintiff has such a right.

3. We think the decree of the Subordinate Judge is right and we dismiss this appeal with costs.


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