The right of a usufructuary mortgagor to recover possession continues until the mortgage money is paid, and the limitation does not start until then.

JUDGMENT

Nataraj Rangaswamy, J. - This Regular Second Appeal is filed by the defendant in O.S. No. 161/1999 on the file of the Prl.Civil Judge (Jr.Dn.), Malur (henceforth referred to as 'Trial Court') challenging the divergent Judgment and Decree of the First Appellate Court in R.A. No. 316/2006 by which it reversed the Judgment and Decree of the Trial Court dated 30.09.2006 and decreed the suit for redemption of the mortgage.

2. The parties shall henceforth be referred as they were arrayed before the Trial Court.

3. The suit in O.S. No. 161/1999 was filed for a Judgment and Decree directing the defendant to receive the mortgage money and to return the mortgage deed after duly endorsing its discharge and to deliver possession of the suit property to the plaintiffs. The plaintiffs claimed that the land bearing Sy. No. 49/3 of Seethanayakanahalli village, Lakkur Hobli, Malur Taluk measuring 2 acres belonged to Muniyamma, the wife of plaintiff No. 1 and the mother of plaintiff Nos. 2 and 3. The plaintiff No. 1 executed a usufructuary mortgage in favour of the defendant on 24.09.1962 mortgaging the suit property for a sum of Rs. 400/-. It was understood that the defendant shall enjoy the usufructs and appropriate the same towards the interest and the period of mortgage was five years from the date of execution of the deed. The plaintiffs claimed that after the expiry of five years, the defendant requested the plaintiff No. 1 to permit him to continue in possession of the suit property. However, in the year 1989, the defendant filed a suit in O.S. No. 163/1989 for the relief of declaration that he had perfected his title to the suit property by adverse possession and sought perpetual injunction to protect his possession. The said suit was decreed in part on 06.04.1999 and possession of the defendant was protected. After disposal of the suit, the plaintiffs caused a notice dated 22.4.1999 to receive the mortgage money of Rs. 400/- and deliver back possession. Since the defendant failed to comply, the plaintiffs deposited a sum of Rs. 400/- before the Court and hence, sought redemption of mortgage and delivery of possession.

4. The defendant contested the suit and denied the averments of the plaint. He claimed that the suit for redemption is filed after 30 years and hence it is barred by law of limitation. He further claimed that since the plaintiffs had failed to seek redemption of the mortgage and in view of the decree of perpetual injunction granted in O.S. No. 163/1989, he had perfected his title to the suit property by adverse possession.

5. Based on these rival contentions, the Trial Court framed the following issues:

1) Whether plaintiffs prove that the wife of plaintiff No. 1 and mother of plaintiffs No. 2 and 3 by name Muniyamma has executed a registered possession mortgage in favour of defendant on 24.9.1962 for consideration of Rs. 400/- for a period of 5 years?

2) Whether plaintiffs further prove that the Muniyamma and defendant had agreed in the mortgage deed that the defendant has to enjoy the schedule property in favour of mortgage amount of Rs. 400/- for 5 years and then redeem it?

3) Whether plaintiffs further prove that they approached defendant to receive the mortgage amount and to execute the redeem of mortgage deed in their favour?

4) Whether plaintiffs are entitled to get redeem the suit schedule property?

5) Whether plaintiffs prove that they are entitled for delivery of possession of suit schedule property in their favour?

6) Whether the plaintiffs further prove that they are entitled for mesne profit from the date of suit till delivery of possession? If so at what rate?

7) Whether defendant prove that the suit of the plaintiff is barred by limitation?

8) Whether defendant further prove that he has become the absolute owner and he is in absolute possession of suit schedule property since the limitation period for redem