SUBBARAYADU Vs. O SUBBA REDDY

JUDGEMENT

(1.) The question of law in the appeal is one regarding limitation under Articles 19, 47 and 55 of the LIMITATION ACT, 1963, 1963 in respect of a suit filed by the appellant under an unregistered usufructuary mortgage deed the suit having been filed within three years from the date upon which the plaintiff lost possession.

(2.) The respondents herein who are the mortgagors, obtained a loan from the appellant-plaintiff on 3-7-78 under Ex. A-1 and admittedly, put the appellant in possession of the property. The document purportes to be an usufructuary mortgage but is not registered. Towards the end of the document, there is a recital in different ink which states that the mortgagor would execute a regular document in proof of the arrangement. It so happened that after the mortgagee appellant was thus put in possession on 3-7-78, he had to surrender possession in December, 1981 because of certain events. What happened was that the mortgagor had earlier mortgaged the property in favour of the Peddachappaly Multipurpose Co-operative Credit Society and the said society proceeded to recover the amounts due to it and sold the property (on 29-12-1981) which was in the possession of the appellant. The appellant was, therefore, compelled to surrender possession in favour of the auction purchaser. Having thus lost possession of the property, the appellant filed the present suit on 18-1-1982 almost within 20 days of his losing possession.

(3.) The trial Court, came to the conclusion that the recital regarding execution of another regular mortgage deed was an interpolation. Though it could therefore have considered the transaction as a mortgage and not an agreement of mortgage, it still considered the deed as a mortgage deed. In fact, the trial Court observed that if Ex. A-1 was to be construed as an unregistered mortgage deed (and not an agreement), the limitation, would start from the date on which the plaintiff lost possession. Even so, the trial court unfortunately, treated the deed only as an agreement to mortgage and held that the suit was barred by limitation.