MADHAVAN EZHUTHASSAN K R Vs. VENKITARAMA IYER

JUDGEMENT

(1.) WHETHER the period of limitation of a suit for redemption and recovery of possession by the mortgagor against an assignee mortgagee is covered under clause (a) or clause (b) of Art. 61 of Limitation Act, 1963? This is the question to be decided in the appeal.

(2.) THE facts are not disputed. Plaint schedule property belonged in jenmom to Suriachira Ganapaty Devaswom. On 13/01/1945, under Ext. A4 registered mortgage deed 308/1945, for discharging debts, after receiving Rs. 800/-, the mortgage money, respondent Devaswom mortgaged plaint schedule properties in favour of Ayyaswamy Naicker who was put in possession of the mortgaged properties on condition that he is entitled to appropriate the profits towards the interest due on the mortgage money and shall measure 122 paras of paddy annually on or before 30th Makaram every year. In 1965, mortgagee Ayyaswami Naicker assigned his mortgage right in favour of Kuttan. Kuttan has been in possession of the property as an assignee mortgagee. Subsequently, appellant got assignment of that mortgage right from Kuttan and he has been in possession and paid purappad due to respondent Devaswom upto 1150 ME. Later, appellant filed OA 935 of 1975 for purchasing jenmom right of the mortgaged properties before Land Tribunal, claiming the benefit of Kerala Land Reforms Act (hereinafter referred to as the "act" ). Land Tribunal, accepted his case and allowed him to purchase the jenmom right. Respondent challenged the order before Appellate Authority (Land Reforms ). Appeal was dismissed. It was challenged before this Court in CRP 61 of 1981. As per Ext. A1 order dated 15/11/1983, this Court set aside the findings of the Land Tribunal as confirmed by the Appellate Authority and found that appellant is only a mortgagee and he is not entitled to the benefit of the Act, This Court found that Ext. A1 does not create tenancy arrangement and it is only a mortgage pure and simple and appellant is not entitled to the benefit of S. 6b of the Act and dismissed the OA Respondent, thereafter instituted OS 433 of 1985 before Munsiff Court, Palakkad for redemption of Ext. A4 mortgage and recovery of possession of the property from appellant. His wife was also impleaded as second defendant. Appellant resisted the suit contending that plaint schedule properties are in the joint possession of appellant and his wife and though Ext. A4 is styled as a mortgage it is in fact a lease and appellant is therefore entitled to the benefit of the Act. It was also contended that in any event, suit is barred by limitation, as it was not instituted within 12 years from the date of assignment of mortgage right or from the date of knowledge of the assignment and as appellant and his predecessors have been in possession of the property for more than 12 years openly and continuously asserting their hostile title, title of the respondent is lost by adverse possession. Second defendant, wife of appellant, also filed a separate written statement contending that mortgagee Kuttan was paying rent to the Devaswom and his tenancy right was assigned to appellant and the wife and both of them are entitled to the benefits of the Act and judgment in CRP 61 of 1981 is not binding on second defendant and the suit is to be dismissed.

(3.) RESPONDENT filed a cross objection. But appeal memorandum in the cross objection does not show any substantial question of law to be formulated. No substantial question of law was also formulated in the cross objection.