IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.06.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.378 of 2010 1. Xavier Sundaraj 2. Philomina 3. Arule Marie .. Appellants/Defendants (cause title accepted vide order of court dated 18.3.10 made in MP No.1/2010 in SA SR No.25067/10) vs. Khader Basha (Died) 1. Dastahgeer Basha 2. Fathimunnisa 3. Hyath Basha 4. Azeezunnisa 5. Dawood Sheriff 6. Zythunnisa 7. Iqbal Sheriff 8. Yacob Sheriff 9. Fathimunnisha 10.Sulaiman Sheriff 11.Ismail Sheriff 12.Saidha 13.Shanawaz .. Respondents/Plaintiffs 1 to 11 This Second Appeal is focussed as against the judgment and decree dated 25.11.09 made in A.S.No.17 of 2009 on the file of the learned Additional District Judge (Fast Track Court – II) Ranipet reversing the judgment and decree dated 29.02.2008 made in O.S.No.130 of 2006 on the file of the Learned District Munsif cum Judicial Magistrate, Arcot. For appellants : Mr.G.Jeremiah For respondents: Mr.T.R.Rajaram JUDGMENT This Second appeal is focussed by the original plaintiffs, animadverting upon the judgment and decree dated 25.11.09 passed in A.S.No.17 of 2009 by the Additional District Judge (Fast Track Court https://hcservices.ecourts.gov.in/hcservices/ – II) Ranipet, reversing the judgment and decree of the learned District Munsif cum Judicial Magistrate, Arcot in O.S.No.130 of 2006. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The respondents/plaintiffs filed the suit seeking the following reliefs: "(i) To redeem the Usufructuary mortgage dated 06.03.1972 in the schedule mentioned property ; and (ii) To direct the defendant to deliver possession of the suit property to the plaintiffs; and (iii) for costs." (Extracted as such) (b) The written statement was filed by the first defendant resisting the suit on the main ground that the suit property was barred by limitation. (c) Whereupon the trial Court framed the issues. (d) During trial, on the side of the plaintiffs, one Mr.Thusthagir Basha was examined as P.W.1 and Exs.A1 to A13 were marked. On the side of the defendants, the first defendant-Xavier Sundaraj examined himself as D.W.1 and Exs.B1 to B14 were marked. (e) Ultimately the trial Court dismissed the suit on the main ground that it was barred by limitation, as against which the plaintiffs preferred appeal, whereupon, the appellate Court reversed the judgment and decree of the trial Court and decreed the suit granting the following reliefs: @mry; tHf;fpy; nfhhpago nky;KiwaPl;lhsh;fs; tprhuiz ePjpkd;wj;jpy; itg;gPL bra;J ,Uf;fpd;w U:/4.000-?j;ij vjph;kDjhuh;fs; 2 khj fhyj;jpw;Fs; bgw;Wf;bfhz;L jhth brhj;jpd; RthjPdj;ij vjph;kDjhuh;fs; nky;KiwaPl;lhsh;fsplk; xg;gilf;f ntz;Lbkd;W bryt[j; bjhifa[ld; Kjy;epiy jPh;g;gpid gpwg;gpj;J jPh;g;gspf;fg;gLfpwJ/@ 3. Being aggrieved by and dissatisfied with the judgment of the first appellate Court, the defendants preferred this Second Appeal on various grounds and also suggesting the following substantial questions of law: "1. Whether the lower appellate Court was right in reversing the well considered judgment of the trial Court without assigning any reason as to why the appellate court is not agreeing with the conclusion of the trial Court? https://hcservices.ecourts.gov.in/hcservices/ 2. Whether the lower appellate Court was right in holding that the claim of the appellants that the mortgagor has given up the right of redemption in not established? 3. Whether the lower appellate Court was right in holding that the suit was not barred by limitation?" (extracted as such) 4. My learned Predecessor framed the following substantial question of law: "Whether the lower appellate court has wrongly decided the question of limitation?" 5. The learned counsel for the appellants/defendants would put forth and set forth his arguments to the effect that admittedly the usufructuary mortgage emerged as per Ex.A1, the mortgage deed dated 06.03.1972. Whereas, the suit was filed in the year 2006 long after 12 years, but the first appellate Court failed to take note of the same and simply decreed the suit ignoring the limitation point. 6. In a bid to torpedo and pulverise the arguments as put forth on the side of the appellants/defendants, the learned counsel for the respondents/plaintiffs, would submit that the clause in Ex.A1 stipulated that after five years, the mortgagor could redeem the mortgage and that 30 years period should be calculated after the expiry of five years. Accordingly if calculated, it is clear that the suit was filed well within the limitation period and the first appellate Court extracting the relevant Article 61(a) of the Limitation Act decided the lis properly, warranting no interference in the Second Appeal. 7. Indubitably and indisputably, the usufructuary mortgage was created in favour of the appellants/defendants by the respondents/plaintiffs. There was a stipulation in the mortgage deed itself i.e. Ex.A1, that after five years the mortgagor would be having the right to redeem the same by repaying the sum of Rs.4,000/- without interest. Ex.A1-the mortgage deed was dated 06.03.1972, and the five years period expired by 06.03.1977 and the suit was filed in the year 2006, so to say within thirty years as contemplated under Article 61(a) of the Limitation Act. The relevant portion of Article 61(a) is extracted hereunder for ready reference. --------------------------------------------------------------------- Description of suit Period of Time from which period limitation begins to run --------------------------------------------------------------------- 61. By a mortgagor https://hcservices.ecourts.gov.in/hcservices/ (a) to redeem or recover Thirty When the right to possession of immovable years redeem or to recover property mortgaged possession accrues --------------------------------------------------------------------- (emphasis supplied) 8. Absolutely I could see no merit in this Second Appeal for the reason that the first appellate Court correctly applied the provision of law. Here the respondents happened to be the mortgagors and they want to redeem the property mortgaged and in such a case, by no stretch of imagination it could be stated that Article 61(a) of the Act which contemplates thirty years is not applicable to the facts and circumstances of the case. 9.Hence the substantial question of law is answered as against the appellants that the suit is not barred by limitation. 10. While disposing of the Second Appeal, incidentally I have noted that the first appellate Court simply passed the decree as though it is a decree originally passed in a money suit. No doubt here before me, there is no dispute about the quantum of amount payable by the mortgagor to the mortgagee and the records reveal that already the amount was deposited in lower Court by the plaintiffs. In my considered opinion, the preliminary decree should be as per Form No.7 with necessary changes. 11. The learned counsel for the appellants/defendants would submit that a years' time might be granted for handing over possession to the respondents and that his client would also file an affidavit to that effect. 12. Whereas, the learned counsel for the respondents/plaintiffs would submit that ever since 1972 the plaintiffs are not in possession even as per the records available and at the most six months' time might be granted. By way of striking a balance between the two, I am of the view that nine months' time from this date could be granted for handing over possession of the mortgaged property and to that effect within fifteen days, an affidavit shall be filed. If no such affidavit is filed, then the time benefit of nine months granted under this judgment shall not be available to the appellants. Consequently, the preliminary decree shall be moulded and drafted. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, this Second Appeal is disposed of. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar To 1. The Additional District Judge (Fast Track Court – II) Ranipet. 2. The District Munsif cum Judicial Magistrate, Arcot. 3. The Section Officer, VR Section, High Court, Chennai-104 1 cc To Mr.T.R.Rajaraman, Advocate, SR.34695 1 cc To Mr.G.Jeremiah, Advocate, SR.34253 S.A.No.378 of 2010 GV (CO) RH (28.6.11) https://hcservices.ecourts.gov.in/hcservices/