New plea cannot be raised for the first time in second appeal.

Srinivasan, J.

1. The defendants 2 to 7 in the suit are the appellants herein. The suit is one for redemption of two mortgages executed on 26.5.1113 M.E. and 24.5.1115 M.E. It is not in dispute that the plaintiffs are the successors in-title of the mortgagors and the defendants are the successors-in-title of the mortgagees. The contention raised by the defendants, before the trial court was that the suit was hot maintainable as it was barred by res judicata by reason of the decision in O.S. No. 1587 of 1119 M.E. on the file of the Principal District Munsif, Kuzhithurai, wherein the mortgage deeds were set side and that the suit is barred by limitation. The trial court accepted the contention of the defendants and dismissed the suit. On appeal the Additional Subordinate Judge, Kuzhithurai reversed the conclusion of the trial Court and granted a decree in favour of the plaintiffs for redemption and recovery of possession though the claim for damages was negatived.

2. In this second appeal, learned Counsel for the appellants raised a contention that the defendants were in possession as lessees and not as mortgagees. Learned Counsel placed reliance on Ex. B1, dt. 9.10.1072 representing a marayapattam and kuzhikanam transaction executed by the predecessor in title of the plaintiffs in favour of the predecessor-in-title of the defendants. According to learned Counsel, Exs. A1 and A2 are only renewals of the transaction evidenced by Ex. B1 and the character of possession of the defendants as lessees never changed into that of mortgagees. Hence it is submitted by learned Counsel that the suit for redemption of mortgages is not sustainable.

3. Learned Counsel for the respondents submits that the contention raised by the appellant's counsel was never put forward either in the trial Court or in the lower appellate Court. He draws my attention to the written statement and submits that no plea has been raised that the defendants are in possession as lessees and not mortgages. According to learned Counsel for the respondents, the question is not purely one of law but has to depend upon the facts and circumstances and unless a plea has been raised in the trial court it should not be allowed to be raised for the first time in a second appeal. It is also his case that even on the merits the contention has to fail as the conduct of the parties in the earlier proceedings and the stand taken by them therein would clearly show that the defendants are in possessions only as mortgagees and not as lessees.

4. No doubt, to some extent the question raised by the appellants' counsel turns upon the interpretation of the documents, but, it cannot be treated as a pure question of law. An interpretation of the documents will have to depend upon the facts and circumstances of the case; it may not always turn upon the language used in the documents. The decision on the question will have to depend upon the conduct of the parties both prior and after the execution of the relevant documents. Hence I accept the contention of learned Counsel for the respondents that the contention raised by the appellants' counsel should not be allowed to be raised in the second appeal for the first time as it is not a pure question of law.

5. However, I do not propose to dispose of the appeal on that ground. I intent going through the relevant facts and circumstances as available on record in this proceeding and give my finding on the contention raised by learned Counsel for the appellants.

6. Ex. B1 is admittedly a lease transaction. In chronology the next of the document that is relevant is Ex. A2. That is dated 26.5.1113 M.E. On a reading of the document it is seen that a reference is made to the lease transaction of the year 1072 M.E. and the factum of possession with the predecessors-in-title of the defendants in the said lease. Reliance is plead upon the following recitals found in Ex. A2:

Since you wanted your value of improvements to be recognised and wanted to renew t