NACHIYAPPAN Vs. PERIYAKARUPPAN

JUDGEMENT

(1.) The plaintiff in the suit in O.S.No.124 of 2013 on the file of the District Munsif Court, Devakottai, is the appellant in this Second Appeal. The appellant filed the suit in O.S.No.124 of 2013 on the file of the District Munsif Court, Devakottai, for redemption of an usufructuary mortgage dated 03.06.1946 and for recovery of possession of the suit property.

(2.) The case of the appellant in the plaint is that the suit property measuring to an extent of 38 cents in Survey No.173/6 in Iravucheri Group in Devakottai Taluk, originally belonged to the great grand father of the plaintiff by name Murugan, son of Thiru.Nachaan and that the said Murugan and his son by name Thothan executed a othi deed dated 03.06.1946 in favour of the predecessor-in-interest of the defendant by name Meenakshi Ammal. It is further stated that five years period was stipulated in the said mortgage deed for redemption. It is also stated by the appellant that the appellant came to know about the details of the mortgage only on 06.06.2003. It is admitted even in the plaint that the appellant had filed a suit earlier in O.S.No.80 of 2003 before the District Court, Devakottai, for permanent injunction and that the said suit and further appeal preferred by the appellant in A.S.No.29 of 2004 on the file of the Sub Court, Devakottai, were dismissed with liberty to the appellant to file a suit for redemption. It is also admitted in the plaint that the appellant thereafter filed another suit for declaration of title and for permanent injunction in O.S.No.89 of 2006 before the District Munsif Court, Devakottai, and the said suit was also dismissed by a judgment and decree dated 28.04.2011. It is further stated in the plaint that the mortgage created in 1946 was redeemed in the year 1955 and that there was an endorsement made in the original mortgage deed even in the year 1955. It is also stated that the endorsement was found to be invalid in the second suit filed by the appellant and that therefore, the present suit for redemption is filed.

(3.) The suit was contested by the respondent on several grounds. It is to be noted that in the written statement, the ownership of the property in favour of the plaintiff's great grand father is admitted. Similarly, the creation of equitable mortgage by a document dated 03.06.1946 is also admitted. However, the further allegations in the plaint that the mortgage was redeemed and that there was an endorsement indicating discharge of the mortgage were seriously disputed. It was contended by the respondent that the suit is barred by principles of res judicata and under Order 2, Rule 2 of C.P.C. It is further stated in the written statement that the suit for redemption is barred by limitation and that the plaintiff's right to redeem by filing a suit has been lost by virtue of limitation.