IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 RSA.No. 521 of 2007() --------------------- AS.125/2000 of PRINCIPAL SUB COURT,PARAVUR OS.138/1995 of MUNSIFF COURT, PARAVUR .................... : APPELLANTS/APPELLANTS/DEFENDANTS ------------------------------------------------- 1. KRISHNAN, S/O.PADMANABHA PAI, KONERI HOUSE, CHENDAMANGALAM MURI, CHENDAMANGALAM VILLAGE, N.PARAVUR TALUK. 2. VISWANATHAN, S/O.PADMANABHA PAI, KONERI HOUSE, CHENDAMANGALAM MURI, CHENDAMANGALAM VILLAGE, N.PARAVUR TALUK. 3. RAMANADHAN, S/O.PADMANABHA PAI, KONERI HOUSE, CHENDAMANGALAM MURI, CHENDAMANGALAM VILLAGE, N.PARAVUR TALUK. 4. VIDYANADHAN, S/O.PADMANABHA PAI, KONERI HOUSE, CHENDAMANGALAM MURI, CHENDAMANGALAM VILLAGE, N.PARAVUR TALUK. BY ADV. SRI.S.SARAVANA BHAVAN SRI.V.M.KRISHNAKUMAR RESPONDENTS: RESPONDENT/PLAINTIFF ---------------------------------------------- C.K.VIDHYANADHAN, S/O.KUMARAN, CHEERANGATTU HOUSE, 'NIMNA NIVAS', KESARI ROAD, PARAVOOTHARA MURI, PARAVUR PAKUTHI, N.PARAVUR TALUK. BY ADV. SRI.T.B.THANKAPPAN SRI.T.T.HARIKUMAR THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.1105/2007 IN R.S.A.NO.521/2007 27.3.08 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S. To Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A. NO.521 OF 2007 =========================== Dated this the 27th day of March, 2008 JUDGMENT Defendants in O.S.138/1995 on the file of Munsiff Court, North Paravur are the appellants. Respondent is the plaintiff. Respondent instituted the suit for permanent prohibitory injunction. Plaint schedule property admittedly originally belonged to Govinda Pai. Under Ext.A1 registered mortgage deed dated 5.6.1954, Govinda Pai created a usufructory mortgage in favour of Ithakutty who died on 16.3.1976. Respondent is claiming that she is in possession of the property under Ext.A2 registered will of the mortgagee dated 10.12.1973 and respondents legal heirs of Padmanabha Pai, the brother of Govinda Pai are not entitled to trespass into the plaint schedule property. Appellants resisted the suit contending that though Ext.A1 mortgage was created, the mortgagee was not put in possession of the property and interest on the R.S.A.521/2007 2 mortgage was being paid by the mortgagee separately evidenced by Ext.B1 note book and neither the mortgagee nor respondent has been in possession of property and respondent is not entitled to the decree sought for. 2. Learned Munsiff on the evidence of Exts.A1 to A4, B1 to B3 and oral evidence of Pws. 1 to 6, Dws.1 to 5 found that under Ext.A1, usufructory mortgage mortgagor Govinda Pai put the mortgagee in possession of the property and though appellants contended that the mortgagee was not put in possession of the property, in view of the specific recitals in Ext.A1, appellants are not entitled to adduce evidence in support of the claim as provided under section 91 of Indian Evidence Act. Finding that on the death of the mortgagee, under Ext.A2 will respondent is in possession of property a decree for injunction was granted. Appellants challenged the judgment before Sub Court, North Paravur in A.S.125/2000. Before the first appellate court appellants filed an application R.S.A.521/2007 3 under Order VI Rule 17 of Code of Civil Procedure to amend written statement incorporating a counter claim for redemption, under Rule 6A of Order VIII of Code of Civil Procedure. That application was also considered along with the appeal. Learned Sub Judge on appreciation of evidence confirmed the findings of learned Munsiff with regard to the possession of respondent. Under Ext.A2 will of the mortgagee under Ext.A1. Though counterclaim was not received and the petition filed under Order VI Rule 17 to receive the counterclaim was dismissed learned Sub Judge found that claim for redemption is barred by time. The appeal was dismissed. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that being a suit for injunction, when the decree of the trial court was confirmed by the first appellate court, whether the claim for redemption of Ext.A1 mortgage was barred by time need not be decided R.S.A.521/2007 4 in the appeal and first appellate court should not have decided that question. Learned counsel also argued that though Ext.A1 shows that mortgagee was put in possession entries in Ext.B1, establish that interest on the mortgage money was not adjusted from the income collected from the property but was separately being paid and that evidence should have been relied on by the courts below and there is no legal bar for admitting oral evidence, as against the recitals in Ext.A1. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. The suit is only one for injunction. The respondent is claiming possession of the property as legatee under Ext.A2 will executed by the mortgagee under Ext.A1. As rightly found by courts below, appellants who are admitting Ext.A1 mortgage, are not entitled to adduce evidence against the written recitals in Ext.A1 under section 91 of Evidence Act. The position would R.S.A.521/2007 5 have been different if case of appellants that Ext.A1 mortgage was not acted upon or that it was only a sham and nominal document. On the other hand, it is the specific case of the appellants that Ext.A1 mortgage was created and it was acted upon. When Ext.A1 provides that it is a usufructory mortgage and the mortgagee was put in possession of the property, appellants who claim right as legal heirs of the mortgagor are not entitled to contend that mortgagee was not put in possession of the property when Ext.A1 shows otherwise. As long as respondent is the legatee under the will executed by the mortgagee and is in possession of the property, he is not entitled to the decree for injunction granted by the courts below. 7. But there is force in the argument of the learned counsel that in view of the scope of the suit finding of first appellate court on whether claim for redemption of Ext.A1 mortgage was barred by limitation was uncalled for. Though a R.S.A.521/2007 6 counterclaim was sought to be preferred by the appellants by filing an application to amend the written statement, at the first appellate court, that was not allowed and counterclaim was not received by the first appellate court. So long as the counterclaim was not received by the first appellate court, whether claim for redemption of Ext.A1 mortgage is barred by limitation was not to be considered by the first appellate court. In such circumstance, it is made clear that finding of first appellate court with regard to the question whether claim for redemption of Ext.A1 mortgage is barred by time was irrelevant and unnecessary for a decision of the first appeal and therefore that finding will not operate against appellants in any subsequent suit for redemption. The appeal is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006