Parameswaran Achary Narayanan Achary Kutiyil Puthen Veedu, Kannimeltheri, Pattazhi Village And Kunjupennu Chellamma, Do. Do vs Paremeswaran Achary Kunju Pillai Achari, Kuttiyil Puthen Veedu, Kannimeltheri, Pattazhi Village (Now Residing At Palamuttathu veedu, Meenamtheri P.O, Pattazhi Village, Pathanampuram Taluk and Nangeli Janaki, Do. Do

Thomas P. Joseph, J.—The Second Appeal at the instance of the plaintiffs arises from the judgment and decree of the Munsiff''s Court, Punalur in O.S. No.101 of 1989 as confirmed by the Sub Court, Kottarakkara in A.S. No.27 of 1991. First appellant and 1st respondent are the children of the late Parameswaran Achari to whom the suit property originally belonged. According to the appellants, and it is not disputed also, that the said Parameswaran Achari created mortgage over the suit property in favour of the appellants as per mortgage deed dated 18.01.1124, a copy of which is Ext.A1. Appellants claimed that by virtue of Ext.A1 they got possession of the suit property. Later Parameswaran Achari executed a settlement deed in favour of the respondents on 08.06.1971. According to the appellants that settlement deed was not acted upon. While so, the respondents filed O.S. No.86 of 1974 against the appellants for redemption of mortgage and a decree was passed in that case allowing redemption (Exhibits A2 and B1 are the copy of decree and judgment, respectively dated 31.01.1997 in O.S. No.86 of 1974). There was direction in that decree to deposit the mortgage money but that was not complied by the respondents. The decree was not executed for more than 12 years and its execution has become barred by limitation. Appellants claimed that they have perfected title by adverse possession and limitation and that the respondents have no right to redeem the mortgage as per the decree in O.S. No.86 of 1974. They prayed for a declaration in that line and consequential reliefs.

Respondents contended that the property referred to in Ext.A1 is the subject matter of settlement deed. As per that settlement deed, of the total 23 cents, 7 cents was settled in favour of the first appellant while the respondents were given 8 cents each. Parties were given possession of the respective shares allotted to them as per the settlement deed. Pursuant to the decree in O.S. No.86 of 1974 respondents filed E.P. No.137 of 1977 and deposited the mortgage money. By that deposit the mortgagor-mortgagee relationship stand snapped. Respondents claimed that pursuant to the settlement deed, they are in possession of portion of the the property settled in their favour.

The trial court found that the mortgage was redeemed by deposit of the mortgage money. Trial court also found that respondents are in possession of that portion of the property settled in their favour. That resulted in a dismissal of the suit which was confirmed by the first appellate court.

The learned counsel contends that in view of the recitals in Ext.A1, finding of the courts below that the respondents are in possession of the property cannot be accepted. According to the learned counsel, the recitals in Ext.A1 should stand and hence it must be taken that appellants are in possession of the suit property in which case it was necessary to execute the decree in O.S. No.86 of 1974 and recover possession of the property.

It is settled that a recital in a deed as to transfer of possession is not a term as understood in Sections 91 and 92 of the Evidence Act so that, no evidence to the contra is permissible. Notwithstanding the recital in Ext.A1, mortgage deed, it was possible to show that appellants did not get possession of the suit property It is seen from paragraph 21 of Ext.B1, judgment that in O.S. No.86 of 1974 there is a specific finding that notwithstanding the recital in Ext.A1, mortgage deed, Parameswaran Achari had not parted with possession of the property and that appellants as mortgagees were not put in possession of the said property. It is admitted that Ext.B1 and Ext.A2, judgment and decree, respectively have become final. Therefore that finding would operate as res judicata against the appellants. They cannot, therefore contend that they got possession of the property as per Ext.A1.

So far as deposit of mortgage money is concerned the trial and first appellate courts, referring to the Ext.B2, copy of B diary in E.P. No.137 of 1977 have held that that the respondents had deposited their respective share of the mortgage money in the executing court on 12.12.1977 and that pursuant to that deposit, after considering the objections raised by the appellants the executing court on 18.03.1978 declared the mortgage as extinguished.

In the light of the above finding in Ext.B1 and in view of Ext.B2, the trial court was correct in holding that the mortgage was redeemed and that notwithstanding Ext.A1 respondents are in possession and enjoyment of that portion of the property settled in their favour as per the settlement deed dated 08.06.1971. The first appellate court has confirmed that finding. On hearing the learned counsel and going through the judgments under challenge I do not find any substantial question of law involved in this appeal requiring decision by this Court.

The Second Appeal is dismissed.

All pending Interlocutory Applications will stand dismissed.