Madras High Court
Sukumaran vs Madhava Shastri (Died) on 31 March, 2016
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 31.03.2016
CORAM
THE HONOURABLE MS. JUSTICE V.M.VELUMANI
Review Application (MD)No.150 of 2014
&
C.M.P.(MD) No.263 of 2016
Sukumaran, S/o.Periakaruppan .. Petitioner/Appellant
Vs.
1.Madhava Shastri (Died)
2.Kumaresan, S/o.Periakaruppan
3.Sivasankar, S/o.Kasilingam
4.Hareendran, S/o. Late Vasudevan
5.Santhabai, W/o.Madhava Shastri
6.Sarabeswaran, S/o.Madhava Shastri
7.Balakrishnan, S/o.Madhava Shastri
8.Sivakumar, S/o.Madhava Shastri
9.Lalithabai, D/o.Madhava Shastri
10.Mathura, D/o.Madhava Shastri
11.Prasanna, S/o.Madhava Shastri .. Respondents/Respondents
(Respondents 5 to 11 are brought on record
as LRs. of the deceased first respondent
vide order, dated 03.04.2012, made in
M.P.(MD) No.1 of 2011 in C.M.A.(MD) No.
333 of 2009)
Review Application filed under Order 47 Rules 1 and 2, r/w. Section 114
of C.P.C., to review the judgment and decree dated 04.04.2014, passed in
C.M.A.(MD) No.333 of 2009 on the file of this Court.
!For Petitioner : Mr.R.Vijayakumar
for Mr.G.Kasilingam
^For R1 : Died
For R2 & R3 : Mr.K.Mahendran
For R4 : Mr.S.Parthasarathy
For R5 to R11 : Mr.M.S.Balasubramania Iyer
:O R D E R
This Review Application has been filed by the petitioner seeking to review the judgment and decree dated 04.04.2014, passed in C.M.A.(MD) No.333 of 2009.
2. The review petitioner is the appellant in C.M.A.(MD) No.333 of 2009 and first defendant in O.S.No.19 of 2007. Respondents 2 and 3 are the defendants 2 and 3. One Madhava Shastri, the first respondent and the fourth respondent herein, filed the abovesaid suit, for injunction, restraining the review petitioner/1st defendant in the suit and the respondents 2 and 3/defendants 2 and 3, from interfering with their peaceful possession and enjoyment of the suit properties.
3. Facts of the case:
(i) Ganapathi Iyer, who was the father of Madhava Shastri, the first respondent herein and his brother Vasudevan, was the owner of the suit property. He mortgaged the property to Periakaruppan Konar, the father of the review petitioner and the second respondent herein. The usufructuary mortgage was for five years. Even before expiry of mortgage period, Ganapathi Iyer redeemed the mortgage and took possession of suit properties.
After death of Ganapathi Iyer, Madhava Shastri, the first respondent herein and his brother inherited the properties. By oral partition, Item No.1 was allotted to Madhava Shastri, the first respondent herein and Item No.2 was allotted to Vasudevan. Thereafter, they were in possession and enjoyment of the properties. After death of Vasudevan, the fourth respondent, son of Vasudevan, his mother and sister inherited the property of Vasudevan. The fourth respondent is looking after the property on behalf of his mother and sister.
(ii) The review petitioner and respondents 2 and 3 tried to interfere with the possession of the plaintiffs. Hence, they filed the abovesaid suit. The review petitioner and respondents 2 and 3 filed I.A.No.135 of 2007 under Order 7 Rule 11 of C.P.C., to reject the plaint. The learned Judge closed the said application, holding that the issue of limitation can be decided as a preliminary issue. The petitioner and respondents 2 and 3 filed written statement. The learned Judge framed issues and considered the issue of limitation as a preliminary issue. After considering the pleadings and arguments, the learned Judge held that the suit is barred by limitation and by judgment dated 23.11.2007, dismissed the suit.
(iii) The first respondent/Madhava Sasthri filed A.S.No.4 of 2008, challenging the decree of dismissal of the suit. The learned Principal District Judge, Ramanathapuram, framed necessary points for consideration. After hearing the learned counsel for the parties, the lower appellate Court set aside the judgment and decree of the Trial Court, dated 23.11.2007 and remanded the suit for fresh trial, after affording opportunity to the parties to let in oral and documentary evidence.
(iv) The review petitioner filed C.M.A.(MD)No.333 of 2009 challenging the order of remand. According to the review petitioner, the lower appellate Court erred in holding that the issue of limitation is a mixed question of law and facts and can be decided only by adducing oral and documentary evidence. The learned Judge failed to see that the respondents 1 and 4 are claiming that the mortgage was discharged by Ganapathi Iyer and they were in possession. They have not produced any document or furnished any details of discharge of mortgage and as to when possession was taken from the mortgagee Periakaruppan. They have also not produced any document to show that Ganapathi Iyer discharged the mortgage as mentioned in Section 60 of the Transfer of Property Act, 1882. The respondents 1 and 4 contended that they have furnished necessary particulars in the plaint and they will substantiate their claim by acceptable oral and documentary evidence.
(v) This Court considered the materials on record and the arguments of the learned counsel for the parties and held that the question whether the suit is barred by limitation is a mixed question of law and fact and it can be decided only after full fledged trial, by considering oral and documentary evidence.
(vi) For the above reasons, the learned Judge, by the order, dated 04.04.2014, dismissed the civil miscellaneous appeal.
4. Against the said judgment and decree, dated 04.04.2014, the present review application is filed to reconsider the order passed in C.M.A.(MD)No.333 of 2009.
5. The learned counsel for the review petitioner contended,
(i) that the lower appellate Court failed to consider that admittedly the usufructuary Mortgage dated 28.04.1951, is a registered mortgage and it can be redeemed only as per Section 60 of Transfer of Property Act;
(ii) that the contention as per Section 60 of Transfer of Property Act and Section 17(b) of Registration Act, Redemption Deed must be compulsorily registered, was not considered by this Court as well as lower Court;
(iii) that Respondents 1 and 4 did not furnish details of alleged redemption and complying with the ingredients of Section 60 of the Transfer of Property Act, 1882. Having failed to do so, they cannot let in any oral and documentary evidence;
(iv) that this Court is not correct in holding that mortgage was redeemed in the year 1956, while the case of the respondents 1 and 4 is that the mortgage was redeemed even before expiry of mortgage period, namely, before 1956. This Court failed to consider the contention that the Mortgagor can redeem the mortgage only after expiry of mortgage period;
(v) that this Court and the lower appellate Court failed to consider that a right vested by statute is presumed to be continued, unless it is extinguished in a manner known to law;
(vi) that the mortgage will not come to an end, when the mortgagee is in possession;
(vii) that in the facts and circumstances of the case, the issue of limitation is a pure question of law and not a mixed question of law and fact; and
(viii) that this Court and the lower appellate Court failed to consider the contention that the respondents 1 and 4 are in fact claiming a declaration of redemption of mortgage in the guise of injunction.
According to the review petitioner, the above reasons are sufficient for this Court to review the judgment and decree, dated 04.04.2014, made in C.M.A.(MD) No.333 of 2009, in addition to the error in the order with regard to redemption of mortgage.
6. In support of his submissions, the learned counsel for the petitioner relied on the Judgment of the Hon'ble Apex Court in Fatehji and Company and another Vs. L.M.Nagpal and others reported in 2015 (8) SCC 390, wherein in paragraphs 8 and 9, it has been held as follows:
"8. The plaintiffs averred in the plaint that the last and final cause of action accrued and arose to them after August 1991 when the defendants succeeded in hiding themselves and started avoiding the plaintiffs and the cause of action being recurring and continuous one, they filed the suit on 29-4-1994. As already seen the original cause of action became available to the plaintiffs on 2-12-1973, the date fixed for the performance of the contract and thereafter the same stood extended till 1-2-1977 as requested by the defendants. Though the plaintiffs claimed that oral extension of time was given, no particulars as to when and how long, were not mentioned in the plaint. On the other hand even after knowing the dishonest intention of the sons of the second defendant with regard to the suit property in the year 1985, the plaintiffs did not file the suit immediately. The suit having been filed in the year 1994 is barred by limitation under Article 54 of the Limitation Act.
9. We are of the view that the High Court committed manifest error in reversing the well-considered order of the trial court rejecting the plaint as barred by the law of limitation and the impugned judgment is liable to be set aside. In the result, the appeal is allowed and the impugned judgment [L.M.Nagpal Vs. Fatehji & Co., 2013 SCC OnLine Del 2703] of the High Court is set aside and the order of the trial court is restored. No costs.?
7. The learned counsel for the fourth respondent and the respondents 5 to 11 separately contended that the review petition is devoid of merits. The review petitioner is rearguing the matter on merits. This Court and the lower appellate Court have rightly held that question of limitation is a mixed question of law and fact which can be decided only based on the evidence at the conclusion of trial.
8. In support of his submissions, the learned counsel for the fourth respondent relied on the Judgment of the Hon'ble Apex Court in Rame Gowda (D) by Lrs. Vs. M.Varadappa Naidu (D) by Lrs. & Another reported in 2004 (3) LW 143, wherein in paragraph 10, it has been held as follows:
"10. ...., it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. ....?
9. Learned counsel for the respondents 5 to 11 relied on the following Judgments:
(i) Surjit Kaur Gill Vs. Adarsh Karu Gill [2014 (2) CTC 199], wherein in paragraph 9, it has been held as follows:
"9. .... The issue of limitation is always a mixed question of facts and law, and therefore, it could not be held that no case was made out for proceeding for a trial. ...?
(ii) P.Govindasamy Vs. Manickam and others [2016 (1) LW 49], wherein in paragraph 51, it has been held as follows:
"51. In the light of the above, whether the Appellant / Plaintiff's suit in C.S.No.14 of 2012 is barred by the plea of limitation or not in the considered opinion of this Court as the matter to be ascribed without any cloud or shroud at the time of hearing of the main suit, since the said aspect / issue centres around a mixed question of Law of Fact. ....?
10. I have heard the learned counsel appearing for the parties and carefully perused the materials available on record.
11. The relevant provision of Review is Order 47 Rules 1 and 2 of C.P.C. The said provision is extracted as hereunder:
"47. 1. Application for review of judgment? (1) Any person considering himself aggrieved?
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record of for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the review.?
12. As per Order 47 Rule 1 of C.P.C., the Court can reconsider it's earlier order, if there is mistake or error in it's earlier order or for any other sufficient reason. In the present case, the learned counsel for the review petitioner pointed out the error in the earlier order, wherein this Court held that the mortgage was redeemed in the year 1956, whereas the plaintiffs have not mentioned any date, month or year when the mortgage was redeemed. Their specific case was that the Mortgagor redeemed the mortgage before 1956 and they took possession of the mortgaged property. Further, the learned counsel for the review petitioner rightly contended that this Court has not considered the contentions of the petitioner in C.M.A. For these reasons, the earlier order of this Court, dated 04.04.2014, made in C.M.A.(MD) No.333 of 2009 has to be reconsidered.
13. Respondents 1 and 4 filed O.S.No.19 of 2007 for injunction restraining the review petitioner and the respondents 2 and 3 from interfering with their peaceful possession of suit properties. Their specific case was that Ganapathi Iyer, father of first respondent and his brother Vasudevan mortgaged the suit property in the year 1951 for five years and handed over possession to the father of the review petitioner and first respondent and Ganapathi Iyer redeemed the mortgaged property and took possession. After his death, the first respondent and Vasudevan were in possession and enjoyment. The review petitioner and the second respondent took a stand that usufructuary mortgage was not redeemed and the possession was with the mortgagee and subsequently with the petitioner and the second respondent. In the circumstances, the suit is barred by limitation, as the first respondent and the fourth respondent have filed the suit claiming in fact the mortgage is redeemed.
14. The learned Trial Judge considered the plaint and came to the conclusion that the contentions of the review petitioner and the second respondent are valid, as the first and fourth respondents are in fact seeking declaration that the mortgage is redeemed and that they are in possession as owners. Respondents 1 and 4 have not filed any proof that mortgage was redeemed fulfilling the ingredients of Section 60 of the Transfer of Property Act, 1882. The said Section reads as follows:
"60. Right of mortgagor to redeem. - At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by Act of the parties or by decree of a Court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.
Redemption of portion of mortgaged property. - Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.?
15. Considering Section 60(c) of the Transfer of Property Act, 1882 and pleadings, the learned Trial Judge held that the suit filed by the respondents 1 and 4 is vexatious and meritless. The reasoning given by the learned Trial Judge is based on the ratio in the Judgment reported in 2005 (3) LW 722 [N.V.Srinivasa Murthy Vs. Mariyamma]. The relevant paragraph of the said Judgment, is extracted for better appreciation.
"6. Monimala Vs. Indu, AIR 1964 SC 1295, and Uchit Vs. Gosain AIR 1919 227, are relied on by plaintiffs in the context of Section 68 of the T.P. Act. To dislodge the registered mortgage, plaintiffs don't have prima facie documentary proof of redemption. No pleadings on when and how they took possession, destroying the mortgage deed / security. In the background, the case law relied on by them can't aid their case. The plaint has been cleverly drafted avoiding seeking declaration that the mortgage had been redeemed by Ganapathi Iyer himself. In the face of the mortgage deed the suit for bare injunction, pleading possession, in my considered opinion, is manifestly vexatious and meritless.?
16. Based on the judicial pronouncement, the learned Trial Judge dismissed the suit. The learned Judge dismissed the suit based on the averments in the plaint, Section 60 (c) of the Transfer of Property Act, 1882 and the Judgments relied on by the learned counsel for the review petitioner and the respondents 2 and 3.
17. The review petitioner, in fact, has sought rejection of plaint under Order 7 Rule 11(d) of C.P.C. The application filed by the review petitioner was closed, on the ground that the question raised by the review petitioner could be decided as a preliminary issue. Order 7 Rule 11(d) of C.P.C. reads as follows:
"7. 11. Rejection of plaint.- (d) where the suit appears from the statement in the plaint to be barred by any law;?
18. A reading of the plaint shows that the respondents 1 and 4 claimed to be in possession of the suit property after the Mortgagor redeemed the mortgage even before expiry of lease period, viz., before 19.04.1956. Admittedly, the usufructuary mortgage created in 1951 was a registered deed. In that case, the same can be redeemed as per Section 60 of the Transfer of Property Act, 1882 only by registered deed or receipt for redemption must be registered. Even though the respondents 1 and 4 seek the relief of injunction, it is based on the averment that the mortgage was discharged and the Mortgagor took possession, however, they have not furnished any details nor produced any document that the mortgage got discharged. Therefore, as per Order 7 Rule 11(d) of C.P.C., the plaint is liable to be rejected as barred by law. The reasoning of the learned Trial Judge in this regard was not considered by the lower appellate Court, while setting aside the Judgment of the Trial Court. This Court also did not consider and give any finding in this regard while dismissing C.M.A.(MD)No.333 of 2009.
19. The lower appellate Court and this Court failed to consider the averments in the plaint, Section 60(c) of the Transfer of Property Act, 1882 and Order 7 Rule 11(d) of C.P.C. The Judgments in A.S.No.4 of 2008 and C.M.A.(MD) No.333 of 2009, the general principle with regard to question of limitation only were considered and concluded that question of limitation is a mixed question of law and fact. In the said Judgments, whether the suit is barred by limitation, on the basis of the averments in the plaint or not, was considered. Considering the averments in the plaint, the real intention of respondents 1 and 4 as seen in the plaint and Section 60(c) of the Transfer of Property Act, 1882 and Order 7 Rule 11(d) of C.P.C., the Judgment of the lower appellate Court has to be restored. The Judgment relied on by the learned counsel for the review petitioner is applicable to the facts of the present case. In view of the contentions of the review petitioner, besides Section 60 of the Transfer of Property Act, 1882 and Order 7 Rule 11(d) of C.P.C., the Judgments relied on by the learned counsel for the respondents are not applicable to the facts of the present case.
20. For the above reasons, the Judgment dated 04.04.2014, made in C.M.A.(MD)No.333 of 2009 and the Judgment dated 27.11.2008, made in A.S.No.4 of 2008 are set aside. The Judgment dated 23.11.2007, made in O.S.No.19 of 2007 is restored. The Review Application is allowed. No costs. Consequently, connected miscellaneous petition is closed. .