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Judgment
P.R. Shivakumar, J.—The defendant in the original suit is the appellant in the Second Appeal. The respondent/plaintiff had filed the Original
Suit on the file of the District Munsif, Aranthangi for the following reliefs.
(a) declaring that the plaintiff is entitled to recover vacant possession of the othi property;
(b) directing the defendant to deliver vacant possession of the othi property to the plaintiff;
(c) directing the defendant to pay future profits to be determined under Order 20 Rule 12 CPC;
(d) directing the defendant to pay the cost of the suit to the plaintiff; and
(e) awarding such other reliefs as the Honourable Court may deem fit and proper in the circumstances of the case.
It was the contention of the respondent/plaintiff before the trial Court that the suit property had been mortgaged under a ''othi'' deed to one
Muthukaruppan Ambalakaran and the said mortgagee permitted the appellant/defendant to put up a small house therein and reside in the said
house. With the further contention that the mortgage debt got wiped out under the Tamil Nadu Debt Relief Act (of which year has not been
mentioned), the respondent/plaintiff had filed the said suit for the above mentioned reliefs.
The suit was resisted by the appellant/defendant denying the plaint allegation that he was in possession and enjoyment of the suit property with
the permission of the mortgagee and that he was there in possession and enjoyment of the property openly for more than fifty years on his own
right and that his possession would amount to an adverse possession against the respondent/plaintiff. The appellant/defendant had also contended
that the suit as framed was not maintainable because the original mortgagee was not made a party. It was also contended that the suit was barred
by limitation.
The District Munsif, Aranthangi, after trial, held that the defendant''s contention that he was in possession and enjoyment on his own right could
not be believed and that he was there in possession only with the permission of the mortgagee. The trial Court had also held that the suit was filed
well within the period of limitation under Article 61(a) of the Limitation Act, 1963. Accordingly, the trial court allowed the suit and granted the
reliefs as prayed for by its judgment and decree dated 08.11.1993. The Appeal preferred against the said judgment and decree of the trial Court,
namely A.S.No.49 of 1994 on the file of the District Judge, Pudukottai was also dismissed by its judgment and decree dated 22.08.1995
confirming the judgment and decree of the trial Court. Hence, the appellant/defendant is before this Court.
This Court heard the submissions made by Mr. S.Kadarkarai, learned Counsel appearing for the appellant and also by Mr.
A.Chidambaranathan, learned Counsel appearing for the respondent and perused the materials available on record.
Here is a case filed by the purchaser of the suit property from the mortgagor against the person who is said to be in possession of the suit
property with the permission of the mortgagee. The respondent/plaintiff seems to have camouflaged the relief so as to make it appear as if it is a
suit for declaration of title. A proper appreciation of the reliefs sought for by the respondent/plaintiff will show that the suit is nothing but a suit for
redemption of mortgage (Othi) and for recovery of possession from the person who is alleged to be in possession of the property with the
permission of the mortgagee (Othithar). Of course, the appellant/defendant had taken a plea in his defence that he was not in possession of the suit
property with the permission of the mortgagee and that he had been in possession on his own right for well over the period of limitation. Both the
Courts below have concurrently held that the said plea of the appellant/defendant cannot be sustained. The said finding of fact recorded
concurrently by the Courts below cannot be interfered with in this Second Appeal. Therefore, we have to proceed on the basis that the
appellant/defendant is in possession of the suit property with the permission of the mortgagee.
The plaintiff seems to have laid the suit on the assumption that the mortgage debt got wiped out by operation of law, by the Provisions of Tamil
Nadu Debt Relief Act. But, unfortunately, the respondent/plaintiff has not stated under which Debt Relief Act of Tamil Nadu, the suit mortgage
debt got wiped out. It is also not clearly stated by the respondent/plaintiff regarding the year in which or the date on which the mortgage debt got
wiped out. Admittedly, the respondent/plaintiff has also not chosen to make the mortgagee or his successor in interest as a party defendant in his
suit. The same has been pointed out by the appellant/defendant as a fact going against the maintainability of the suit.
In the light of the circumstances stated above, we have to consider the substantial questions of law framed by this Court at the time of admission
of the Second Appeal. They are:
(1). Whether the suit on the mortgage is maintainable against the defendant, who is admittedly not a mortgagee, without impleading the mortgagee
or successor-in- interest?
(2). Whether the Courts below are correct in holding that the suit is not barred by limitation?
We have already seen that a suit for redemption of mortgage and recovery of possession has been filed with a disguise as if it is a suit for
declaration of a right and consequential relief of recovery of possession. Therefore, we have to proceed with the case on the basis that the suit is
nothing but a suit for redemption and recovery of possession. In a suit for redemption and recovery of possession of the property mortgaged,
either the mortgagee or his successor- in-interest is a necessary party. In spite of the fact that the appellant/defendant has taken a stand that he is
not a successor- in-interest of the mortgagee and that the suit is not maintainable as the mortgagee has not been made party-defendant, the
respondent/defendant has chosen to proceed with the case before the trial Court, the lower appellate Court and before this Court in this Second
Appeal without taking steps to get the mortgagee impleaded. Therefore, this Court is of the considered opinion that the first substantial question of
law framed by this Court, at the time of admission of the second appeal, has got to be answered against the respondent/plaintiff and in favour of the
appellant/defendant. Accordingly, this Court holds that the suit is not maintainable because either the mortgagee or his successor-in- interest has
not been made a party.
Coming to the other question framed by this Court as the second substantial question of law, this Court is of the view that the same is the
important and vital question, the resolution of which shall be enough to give a disposal of the Second Appeal. Though there was no direct issue
framed either by the trial Court or by the lower appellate Court regarding the question of limitation, it is not in dispute that both the parties went for
trial knowing fully well what were the issues in dispute. It is also not in controversy that the parties adduced evidence knowing fully well that the
case involved an issue regarding the question of limitation for filing a suit for redemption and recovery of possession. Therefore, the mere omission
by the Courts below to frame a direct issue regarding limitation will not be the ground on which the case can be remitted back. On the other hand,
as there are pleadings and sufficient evidence adduced on both sides regarding the question of limitation also, this Court, by virtue of the power
conferred under Rule 24 of Order 41 of the Code of Civil Procedure, can pronounce a judgment on merit regarding the question of limitation also.
In this regard, paragraphs 6 and 7 of the plaint are relevant. They are reproduced hereunder, for the sake of convenience:
Though the othi debt has been statutorily wiped out, the plaintiff''s right to redeem the othi or recover possession has not been lost under the Law.
The period for redemption of othi was 60 years under the Old Limitation Act 1908. Under the New Limitation Act, the suit can be filed within a
period of 7 years next after the commencement of New Limitation Act. This suit having been filed for recovery of othi property within the extended
period under the New Limitation Act, this suit is in time.
The cause of action arose for the suit, on 08.02.1928 the date of the suit othi, on 08.02.1931 the date fixed under the othi for redemption, on
10.03.1974 the date of the plaintiff''s purchase of the suit property with the direction to discharge the othi, on 15.12.1972 when the suit othi got
statutorily discharged at Rathinakottai Village within the jurisdiction of this Honourable Court.
As per the above said averment found in the plaint itself, the right to redeem the mortgage accrued after the expiry of the period of three years
from the date of mortgage. Ex.A.2 is the certified copy of the mortgage deed (Othi deed) dated 08.02.1928 executed by Subramania Iyer in
favour of Muthukaruppan Ambalakaran from Subramania Iyer. The respondent/defendant has purchased the suit property under Ex.A.1-sale deed
dated 10.03.1975. In the said mortgage deed (Othi deed), time for redemption was fixed at three years. The three years period expired on
08.02.1931. The very same particulars are found in paragraph-7 of the plaint. It is also not in dispute that the relevant article providing limitation
for filing a suit by a mortgagor for redemption and recovery of possession is Article 61. Though the appellant/defendant might have taken a stand
that the case would fall under Sub-clause (b) of Article 61 and the period of limitation was 12 years, he was not a purchaser or transferee from the
original mortgagee and hence, the Courts below have rightly rejected the said contention that Sub-Clause (b) of Article 61 alone will be applicable
for the present case. On the other hand, it was rightly held that Article 61(a) alone will be applicable. As per Article 61(a) of the Limitation Act,
1963, the period of limitation is 30 years from the date when the right to redeem or to recover possession accrues.
Before 1963, Limitation Act, 1908 held the field. As per the Limitation Act, 1908, the period of limitation for redemption and recovery of
possession was 60 years. However, the said Act has been superseded by the present Act, namely Limitation Act, 1963. Section 30 of the
Limitation Act, 1963 provides the moratorium for those cases in which the period of limitation prescribed under 1963 Act is shorter than the
period of limitation prescribed under the old Limitation Act, 1908. 30 years period from the date on which the right to redemption accrued expired
on 08.02.1961. Section 30 of the Limitation Act, 1963 is reproduced here under, for convenient reference:
Provision for suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908:- Notwithstanding
anything contained in this Act,-
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted
within a period of seven years next after the commencement of this Act, or within the period prescribed for such suit by the Indian Limitation Act,
1908, whichever period expires earlier:
[Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefore under
the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the
Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under
this Act, then, the suit may be instituted within the period of limitation prescribed therefore under this Act;]
(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908,
may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal
or application by the Indian Limitation Act, 1908, whichever period expires earlier.
In such cases, the above section provides that the suits could be filed within seven years from the date on which the 1963 Act came into force
or before the expiry of the period of limitation prescribed by the old Act of 1908, whichever is earlier. The 1963 Act has been brought into force
with effect from 01.01.1964. Hence in this case, as per Section 30 of the Limitation Act, 1963, the period of limitation expired with 31.12.1974.
Admittedly, the suit has not been filed within 31.12.1974. The suit was filed on 29.07.1988. Therefore, there cannot be any doubt that the suit was
filed beyond the period of limitation. Hence, this Court comes to the conclusion that both the Courts below have committed an error in holding that
the suit is not barred by limitation. The same has gone to be reversed and set aside.
For all the reasons stated above, the appeal succeeds and the judgment and decree passed in A.S.No.49 of 1994 on the file of the District
Judge, Pudukottai dated 22.08.1995, confirming the judgment and decree in O.S.No.190 of 1988 on the file of District Munsif, Aranthangi, dated
08.11.1993 has got to be set aside.
In the result, this Second Appeal is allowed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition
is closed.