JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code, praying against the judgment and decree of Principal Sub Court, Mayiladuthurai, dated 25.04.2006 made in A.S.No.177 of 2005 confirming the Judgment and Decree of the Principal District Munsif Court, Mayiladuthrai, dated 30.09.2005 made in O.S.No.169 of 2001.)

(The case has been heard through video conference)

1. This Second Appeal is against the concurrent finding of the Courts below.

2. The appellants are the Legal representatives of the deceased first defendant Late Packir Mohammed. The suit laid by Kalimoorthy/plaintiff is for recovery of possession on the plea that he borrowed a total sum of Rs 16,000/- from Packir Mohammed/defendant on different occasions. On 17.05.1993, a document was obtained from the plaintiff by the defendant in the nature of usufructary mortgage. The possession of the suit schedule property was given to Packir Mohammed. The document executed by the plaintiff was retained by the defendant. When the plaintiff offered the money borrowed and sought back the possession of the property, the defendant refused to handover the possession.

BACKGROUND FACTS:

3. Prior to the suit which is subject matter of this appeal, the defendant Packir Mohammed filed O.S.No.309 of 1995, on the file of District Munsif, Mayiladuthurai against Kalimoorthy and his son Ramesh, for permanent injunction on the premise that Kalimoorthy received Rs.16,000/- from Packir Mohammed on 17.05.1993 and handed over the possession of the suit property with a promise to repay the money and get back the property on or before 31.03.1994. Failing which he will execute a sale deed. Kaliamoorthy neither repaid the money by 31.03.1994 nor executed sale deed. Instead, started demanding more money for the property contrary to the written agreement dated 17.05.1993. In the breach of the agreement, Kalimoorthy and his son Ramesh on 19.03.1995 illegally trespassed into the land and tried to forcibly dispossess him. Hence, sought for permanent injunction restraining Kalimoorthy and his son Ramesh from disturbing the peaceful possession.

4. In the said suit O.S.No.309 of 1995 (hereinafter to be referred as earlier suit), Kalimoorthy filed written statement denying the execution of the sale agreement on 17.05.1993. According to Kalimoorthy, he borrowed Rs.10,000/- from Packir Mohammed on 21.07.1992. For the said purpose, the parties agreed for a term of usufructuary mortgage of the suit property. As per the understanding, Packir Mohammed should enjoy the property for two years and thereafter, return back the property to Kalimoorthy on payment of Rs.6,000/-. Subsequently, on 22.07.1992 Packir Mohammed advanced a further loan of Rs.4,000/-. Since Kalimoorthy was unable to pay back the loan, Packir Mohammed obtained a written document on 07.05.1993 in the nature of usufructuary mortgage. Though, Kalimoorthy was ready to pay back Rs.16,000/- to retrieve the property, Packir Mohammed taking advantage of his possession, has filed suit for permanent injunction relying upon the document executed by Kalimoorthy in favour of Packir Mohammed on 17.05.1993. Therefore the suit for injunction not maintainable.

5. In the said suit, after considering the rival submission, the Learned District Munsif, Mayiladuthurai, allowed the suit for permanent injunction in favour of Packir Mohammed. Regarding the nature of the document dated 17.05.1993, (which was marked as Ex.A1) the Learned District Munsif, Mayiladuthurai, left open the issue undecided observing that the suit being only for permanent injunction, decision regarding the character of Ex.A1, whether it is deed of usufructuary mortgage or agreement for sale and whether there was any consideration involved in that transaction is needless to determine in the said suit. Further, the Learned District Munsif, has also taken note of the reply notice dated 07.04.1999 issued on behalf of Kalimoorthy and had observed that Kalimoorthy in the said reply no