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 dec