IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 2ND FEBRUARY 2011 / 13TH MAGHA 1932 SA.No. 447 of 1999(C) ------------------------------- AS.NO.76/1992 OF I ADDL.SUB COURT,THIRUVANANTHAPURAM, OS.NO.175/1987 OF PRL. MUNSIFF'S COURT,NEDUMANGAD .................... APPELLANT/APPELLANT/PLAINTIFF: ----------------------------------------------------- JAMES PRABHAKARAN, PALLIVEETTA JAYAVILASOM, CHERUVOOKONAM, THOLICODE. BY SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE, ADV. SRI.MURALI PURUSHOTHAMAN. RESPONDENTS/RESPONDENTS/DEFENDANTS: -------------------------------------------------------------------- 1. REETHA, D/O. JOSHWA, KARUMAMKOTTUKIZHAKKUMKARA VEEDU, MOONNAMMOODU DESOM, ACHAMADA VILLAGE, VATTIYOORKAVU PANCHAYAT. 2. DASAN BIJU (MINOR) OF DO. DO. 3. DASAN JOSE (MINOR) OF DO. DO. 4. ASANARU PILLAI ABDULKHADAR, MUKKALAMPATTU IATHIMALAYAM, VELLANADU MURI, DO. VILLAGE. RESPONDENTS 2 AND 3 ARE MINORS WHO ARE REPRESENTED BY THEIR MOTHER THE 1ST RESPONDENT. R1 & R3 BY ADVS. SRI.R.HARIKRISHNAN, SRI.C.A.RAJEEV, R4 BY ADV. SRI.K.SATHEESH KUMAR, SRI.T.A.UNNIKRISHNAN. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A. NO.447/1999-C: ORDER ON I.A. NO.1791/2010 IN S.A. NO. 447/1999-C DISMISSED 02/02/2011. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// P.A. TO JUDGE. Prv. P.BHAVADASAN, J. ------------------------------------- SA No.447 of 1999-C ------------------------------------- Dated this the 2nd day of January 2011 Judgment The plaintiff in OS No.175/87 which is a suit for redemption, is the appellant. 2. The suit property has an extent of 10 cents comprised in RS No.674/1. The suit property originally belonged to one Iyyan Eliyazzar which he got under a partition deed of the year 1951. Later, Eliyazzar mortgaged the property to one Kali Velu. Kali Velu assigned his mortgage rights in favour of the husband of the first defendant as per Ext.A2. Consequent on the death of the original mortgager, the defendants had been in possession of the property. They alienated the jenmom right to the plaintiff's father, who in turn, executed a settlement deed in favour of the plaintiff and the plaintiff is in possession and enjoyment of the suit property. While so, the defendants constructed a building in the suit property and even after SA 447/99 2 repeated requests, they did not execute the release deed in favour of the plaintiff. Therefore, the suit was laid, praying for a declaration of the plaintiff's title and possession, for consequential injunction and in the alternative for redemption of mortgage. 3. The defendants resisted the suit on several grounds. They contended that the suit is barred by limitation and the plaintiff has no title. They also contended that the suit is bad for partial redemption. According to them, the suit property is not redeemable and the defendants 1 to 3 are entitled to fixity of tenure. On the above grounds, they prayed for dismissal of the suit. 4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of PW1 and documents marked as Exts.A1 to A4 from the side of the plaintiff. The defendants had DW1 examined and Ext.B1 marked. Though, almost all the issues were found in favour of the plaintiff, the trial court held that the suit is bad for partial redemption and accordingly dismissed SA 447/99 3 the suit. 5. The plaintiff carried the matter in appeal as AS No. 76/1992 before the Additional Sub Court, Thiruvananthapuram. The appellate court concurred with the trial court. Hence the second appeal. 6. Notice is seen issued on the following questions of law raised in the second appeal : 1.Whether the finding of the courts below that the suit is bad for partial redemption in the absence of any pleading to that effect in the written statement filed by the respondent is sustainable in law ? 2.Whether the finding of the courts below that the suit is bad for partial redemption can be sustained under law in the absence of any issue being framed in that behalf by the courts below ? 7. The learned counsel for the appellant pointed out that the courts below have erred in law and on facts in holding that the suit is bad for partial redemption. According to the learned counsel, three cents which were SA 447/99 4 said to be outstanding with the 4th respondent had already been redeemed and only the 10 cents of land was left to be redeemed. It is also pointed out that there is no issue raised regarding partial redemption. Both the courts below have not adverted to the actual facts of the case and have misdirected themselves both in law and on facts. According to the learned counsel, the judgment and decree of the courts below are clearly unsustainable. 8. Per contra, the learned counsel for the respondents pointed out that even going by Ext.A2 mortgage deed, there are two items of properties consisting of 10 cents and 3 cents respectively. He pointed out that as far as the mortgagor is concerned, two items of properties have been mortgaged and when he seeks redemption of one of the items, the suit is obviously bad for partial redemption. It is also contended that the finding of the courts below that the suit is not barred by limitation, is not correct. It was contended that there was no acknowledgment by the mortgagee to the mortgagor and SA 447/99 5 the finding of the court below that Section 18 of the Limitation Act comes to the aid of the plaintiff, is clearly wrong. 9. As of now, defendants 1 to 3 are in possession of only 10 cents of property. The plaintiff has a case that the three cents of property outstanding with the fourth defendant has already been redeemed. Of course, there is no evidence in that regard, but the defendants do not say that they retained any manner of right over the three cents of property in the possession of the 4th respondent. Under these circumstances, one fails to understand how the suit could be dismissed as bad for partial redemption. Apart from the above fact, there is no specific issue also in this regard. The learned counsel for the appellant is perfectly justified in his contention in this regard. He had no opportunity to put forward his claim. 10. It is necessary to observe that even though there is no cross objection or appeal by the defendants, they can support the decree on the grounds which went SA 447/99 6 against them before the court below. The contention that the assignment by mortgagee to a stranger cannot come to the benefit of the mortgager, is an aspect, which needs probe and consideration. 11. For the above reasons, the matter requires reconsideration at the hands of the trial court. Accordingly, this appeal is allowed. The judgments and decree of the courts below are set aside and the matter is remanded to the trial court for fresh disposal in accordance with law and in the light of what has been stated herein above. The parties shall appear before the court below on 17.03.2011. They will be free to adduce further evidence, if so advised. The trial court will endeavour to dispose of the suit as expeditiously as possible, at any rate, within six months from the date of appearance of the parties before it. P.Bhavadasan, Judge sta SA 447/99 7 SA 447/99 8