JUDGMENT :

This appeal is filed against the judgment and decree made in A.S.No.57 of 2007, dated 06.08.2008 on the file of the learned Subordinate Judge, Sivagangai, confirming the judgment and decree made in O.S.No.57 of 2006, dated 08.12.2006, on the file of the learned Principal District Munsif, Manamadurai.

2. The appellant is the defendant and the respondent is the plaintiff in the suit. The respondent filed a suit for a right of redemption of mortgage. The suit was decreed by the trial Court. Against which, the defendant filed an appeal, before the Sub Court, Sivagangai, in A.S.No.57 of 2007 and the same was dismissed by the first Appellate Court. Against which, the appellant preferred this Second Appeal.

3. The case of the plaintiff is as follows:

The plaintiff purchased the property from one Jeyachandran on 25.10.2002. The vendor Jeyachandran mortgaged the property with the defendant for a sum of Rs.7,000/- and the defendant enjoyed the property on the basis of the mortgage. The defendant/P.V.Sankar filed a suit before the District Munsif, Manamadurai, in O.S.No.145 of 2002. The present defendant, who was P.W.1 in the suit in O.S.No.145 of 2002 had deposed that he is ready to hand over the possession on payment of the mortgage amount. The plaintiff filed a suit in O.S.No. 124 of 2004 for a prayer of declaration of title and for recovery of possession. The suit was decreed on 02.08.2005 granting a relief of declaration of title alone. The suit was dismissed for a prayer of recovery of possession, with an observation that the plaintiff is having right of redemption of mortgage, hence, on the basis of that decreed, the plaintiff filed a suit for redemption of mortgage.

4. The case of the defendant is that the sale deed, dated 22.02.2002 is not valid. The deed was executed as a sham and nominal document, there was no endorsement as to the mortgage in the sale deed. No right of redemption was given to the plaintiff in the sale deed. The mortgage was denied in the previous proceedings. The plaintiff is estopped by conduct. Since the sale deed did not gave any right of redemption, the plaintiff was estopped by deed and prayed the suit to be dismissed.

5. Before the trial Court P.W. 1 was examined and Ex.P.1 and Ex.P.2 were marked on the side of the plaintiff. No witness was examined and no document was marked on the side of the defendant.

6. The trial Court, after considering the documents and oral evidence, decreed the suit. Against which, the defendant preferred an Appeal before the Sub Court, Sivagangai, in A.S.No.57 of 2007.

7. In the grounds of first Appeal, in A.S.No.57 of 2007, it is stated as follows: The judgment and decree of the trial Court is against law and the suit property was not mortgaged with the defendant. Even though the defendant admitted the mortgage in the previous proceedings, thereafter, the defendant denied the same. For declaration of title sale deed is a necessary document and that when the sale deed has not been filed, the judgment of the trial Court was wrong. No right of redemption was given in the sale deed. The vendor was not examined as a witness and prayed the appeal to be allowed.

8. In the first Appellate Court the following issues were framed:-

(i) whether the appeal is to be allowed?

(ii) What are the relief to the appellant?

9. After hearing both sides, the first Appellate Court dismissed the appeal. Against which, the appellant preferred this Second Appeal.

10. The grounds of the Second Appeal is as follows: Both the Courts below ought to have dismissed the suit in toto, since the plaintiff did not produce the alleged sale deed; There is no made over given to the plaintiff by the predecessors in title; The mortgage was not admitted and the suit cannot be filed on the basis of an oral mortgage; The plaintiff was estopped by conduct and the Courts below ought to have dismissed the suit on the principal of non joinder of necessary party.

11. In this Second Appeal, the following substantial questions o