RSA 265/2010 BEFORE HON’BLE MR JUSTICE H.N.SARMA Heard Mr DK Saikia, learned counsel for the appellant. Also heard Mrs T. Goswami , learned counsel appearing for the respondent. This appeal is directed against the judgment and decree dated 23.12.200 8 passed in Title Appeal No.18/2007 by the learned Additional District Judge (FT C) No.1, Tinsukia thereby dismissing the Title Appeal No.18/2007 , upholding the judgment passed by the learned Civil Judge, Tinsukia in Title Suit No.28/2000 d ated 11.6.2007 and dismissing the suit. The plaintiff-appellant took a loan from the respondent-corporation to g et certain financial accommodation amounting to Rs.1,91,000/- and the loan was s ecured by way of mortgage of immovable property measuring 2 kathas 10.77 lechas of land in favour of the respondent-corporation along with the personal guarante e. The plaintiff-appellant having failed to liquidate the lone, notice was issue d by the respondent-corporation in expressing their intention to take over the p ossession of the property. On 10.5.2000 the employees of the corporation went t o the suit property for taking possession of the same. At that stage, the plaint iff instituted a title suit being Title Suit No.28/2000 praying for the followin g reliefs - a) for a declaration that the Mortgage showing the plaintiff’s 0 Bigha 2 Ka tha 10.77 lessas of land(described in the schedule hereto) as being mortgaged a gainst the loan granted to the plaintiff’s proprietorship concern-Poly Engineeri ng is void, illegal and unenforceable and the defendant is not entitled to act upon that and to take possession of the plaintiff’s aforesaid land and house sta nding thereon in execution of the said mortgage in any manner ; b) for permanent injunction restraining the defendant, its officers and oth er employees from enforcing the mortgage executed as security to the plaintiff’s proprietorship concern- Poly Engineering and from taking possession of the pl aintiff’s land and house described in the schedule hereto) in any manner ; c) for ad-interim temporary injunction in terms of prayer (b) above; d) cost of the suit ; e) any other relief to which the plaintiff my be found entitled under the l aw and equity ; The summons of the suit having been served upon the respondent-c orporation they entered appearance by filing written statement and denying the allegation. The case of the corporation inter alia is that the loan in questio n was sanctioned to the appellant on the condition of mortgaging the land measu ring 2 katha 10.77 lessas which was accepted by the appellant -plaintiff and mo rtgaged the entire area of 2 katha 10.77 lechas and availed the loan. The alle gation of any inadvertent error in including the aforesaid area , instead of 1 .5 lessa of land is totally denied. On the basis of the pleadings, the learned t rial court framed the following issues - ‘1) Is the suit maintainable ? 2) Is the suit barred by limitation ? 3) Is the suit barred by principle of waiver, estoppel and acquiescence ? 4) Whether the mortgage of 2 kathas 10.77 lessa of land is void, illegal and un enforceable ? 5) Whether, the plaintiff is entitled to get the decree, as prayed for ? Both the parties adduced evidence and the learned trial court vide judgm ent and decree dated 11.6.2007 dismissed the suit as barred by limitation in asm uch as, the mortgage in question was created on 19.4.93 and the suit was filed c hallenging the said mortgage in the year 2000 and accordingly, the suit is barre d under Article 58 of the Limitation Act. The aforesaid judgment was carried i n appeal by the plaintiff-appellant in Title Appeal No.18/2007 and the learned Addl. District Judge( FTC) No.1, Tinsukia vide the impugned judgment and decree dated 23.12.08 dismissed the appeal and affirmed the judgment and decree passed by the learned trial court. The learned appellate court apart from the point of limitation also considered the merit of the case. The plaintiff- appellant avail ed the loan agreeing with the terms and conditions vide her letter dated 19.4.93 (Ext.4) wherein the land measuring 2 kathass 10.77 lesseas were required to be mortgaged as security by the plaintiff. It is further found by the learned tria l court that the power of attorney (Ext.B) was executed on 13.5.93 wherein the power was granted in favour of the corporation to possess the mortgage land mea suring 2 kathas 10.77 lessas of land in case of default. On such consideration, the learned appellate court found that the case set up by the plaintiff that due to inadvertent error in including the mortgage property i.e. 2 kathas 10.77 les sas of land is not found to be correct. It is further found by the learned appel late court that in pursuance of the Power of Attorney created in favour of the r espondent corporation , the respondent corporation took over the possession of t he suit property on 10.5.2000, but it is submitted by Mr Saikia that as per requ est of the plaintiff appellant, the respondent corporation allowed the plaintiff appellant to continue with the possession of the suit property. In this second appeal, Mr Saikia, learned counsel for the appellant has raised t he following substantial questions of law - 1) Whether, the learned appellate court erred in law in dismissing the appe al and suit of the appellant holding it to be barred by Article 58 of the Limit ation Act ? 2) It is urged that whether the learned appellate court erred in law ion ho lding that the plaintiff-appellant is estopped in raising the question as to th e validity of the mortgage under section 115 of the Evidence Act ? As regards the first substantial question of law, there is no dispute that the m ortgage was created on 19.4,.93 and the suit for declaration was brought on 21 .6.2000 i.e. after seven years and a declaration suit is required to be filed within three years under Article 58 of the Limitation Act and in such a situat ion, the suit having been filed after the prescribed period of limitation in bri ning the present suit is barred. Accordingly, I find that the learned appellate court did not commit any error in law in holding that the suit is barred by limi tation. The first substantial question of law as raised by Mr Saikia is answered against the appellant. The second substantial question of law as narrated above, the plaintiff having a ccepted the terms and conditions of the sanction letter and thereafter having ac cepted the Power of Attorney authorizing the respondent corporation to take over the possession of the mortgaged property measuring 2 kathaa 10.77 lessas is not entitled to re- agitate the matter that the corporation wants to take possessio n of the mortgaged property in exercise of its statutory power as well as the Po wer of Attorney. That apart , though the mortgage was created on19.4.93, the pla intiff appellant waited till taking over the possession by the employees of the corporation in the year 2000, in such a situation, I find that the learned appe llate court did not commit any error in law in holding that the appellant plaint iff is not entitled to challenge the mortgage in the suit in the manner as ple aded in the plaint. Accordingly, the second substantial question of law as raise d by Mr Saikia is answered against the appellant. The appeal stands dismissed.