VASUDEVAN Vs. MANOHARAN

JUDGEMENT

(1.) This second appeal is by the plaintiff in a suit for redemption and recovery of possession. There are three items in the plaint schedule; of which items 1 and 3 are stake nets and item 2 is an immovable pro- perty having an extent of 23 cents. According to the plaintiff, items 1 and 2 were mortgaged by the plaintiff to Ayyappan and Narayanan on 29.5.1954 and they were directed to redeem a prior mortgage. They redeemed the prior mortgage. The further case of the plaintiff is that since the income from items 1 and 2 was insufficient for meeting the interest on mortgage item 3 was also put in possession of the mortgagee.

(2.) Subsequently the mortgagees assigned their mortgage right to the 1st defendant, on 7.4.1964 by Ext. Bl document. Plaintiff sold his right over item 2 to the 2nd defendant.

(3.) The 1st defendant contended that the suit was barred by limitation. The trial court as well as the 1st appellate court accepted the said contention and dismissed ihe suit. The only question to be considered in this second appeal is whether the suit is barred by limitation. The relevant Articles on which the learned counsel referred me during the argument read as follows: <FRM>JUDGEMENT_277_CCC3_2003Html1.htm</FRM> The trial court held that as far as item 1 is concerned it is Art. 61(b) that is applicable as the mortgagee transferred possession of the mortgaged property in'1964, and therefore the suit ought to have been filed before the expiry of 12 years from the date of such transfer. Since it has come out in evidence that with respect to item 2, it was only a simple mortgage that was created by the plaintiff the trial court held that it was Art. 61 (a) that was applicable and the plaintiff will get 30 years to file the suit. Even by that calculation the suit was filed after 2 months of the expiry of thirty years and therefore it was found that the suit was barred by limitation. With regard to item 3, it was found that the plaintiff had no right and it was not available for recovery of possession.