JUDGMENT :

(Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code praying to set aside the judgment and decree made in O.S.No.83 of 1985 on the file of the District Munsif Court, Kuzhithurai, dated 26.04.1996 and confirmed by the learned Second Additional Sub Judge Camp at Kuzhithurai, dated 26.04.2001, in A.S.No.65 of 1997.)

Aggrieved over the concurrent finding of the Trial Court and the first Appellate Court, dismissing the suit filed by the appellant/plaintiff for declaration and injunction and also demarcation of plaint 'B' schedule property, the present Second Appeal has been filed.

2. While admitting the Second Appeal, the following substantial questions of law were framed for consideration:

"(i) Whether a judgment in a prior suit for redemption of mortgage can be held binding on the plaintiff in a subsequent title suit?

(ii) Whether in a suit for redemption of mortgage a binding decree as to title can be given? and

(iii) Whether the recitals and property specifications schedule mentioned in a partition deed is not binding on the parties thereto persons claiming under or through them?"

3. The brief facts leading to the filing of the suit are as follows:

The suit property consists of 37 cents in Old Survey No.1163 of Kollemcode Village. Originally, plaint 'A' schedule property was in possession of Janaki Pillai. Later, under partition deed dated 11.09.1102 M.E.(1927 A.D.), the western one half of the plaint 'A' schedule property, i.e., western 181/2 cents was allotted to one Kumara Pillai Sivasankara Pillai. The remaining eastern one half in 'A' schedule property was allotted to one Sadasivan Nair, the younger brother of Sivasankara Pillai. The said Kumara Pillai Sivasankara Pillai died on 06.01.1974. After his death, his widow Bhagavathi Amma and children including the present plaintiff entered a partition deed dated 01.01.1975, in which, Bhagavathi Amma got plaint 'B' schedule property. The said Bhagavathi Amma executed a gift deed in respect of 'B' schedule property to his son, namely, the plaintiff on 28.08.1980. It is the further stated by the plaintiff that the father of the plaintiff and mother put up a structure in the eastern property. Eastern portion of the plaint 'A' schedule property was mortgaged to Bhagavathi Amma by Sadasivan Nair on 29.05.1972. The defendant filed a suit in O.S.No.5 of 1979 for redemption of mortgage. The Court has granted a decree to the defendant for redemption of property on the basis of the area mentioned in the mortgage deed. Since the suit in O.S.No.5 of 1979 is a simple suit for redemption, the question of title was not decided. Since the decision in O.S.No.5 of 1979 has created cloud on the title of the plaintiff over the plaint 'B' schedule property, the plaintiff was compelled to file the suit for declaration of plaint 'B' schedule property. Hence, the suit.

4. It is the case of the defendant that Sadasivan Nair was not allotted any portion of Survey No.1163 under partition deed of the year 1927 AD. But, whereas, he has purchased 191/2 cents in the eastern portion of the said Survey Number. After the purchase of the said 191/2 cents, he constructed boundaries and compound wall for the same and other structures including latrine, cattle shed and kaliyal, etc., and he was in possession of all of them. It is the further case of the defendant that the plaintiff's father was not entitled to any portion of the said eastern 191/2 cents in Survey No.1163. While in possession of eastern 191/2 cents with structures, Sadasivan Nair mortgaged the same to the plaintiff's mother Bhagavathi Amma on 29.05.1972 and later, sold the property to the defendant on 19.08.1975. The defendant filed a suit in O.S.No.5 of 1979 against the present plaintiff's mother Bhagavathi Amma for redemption of the above mortgage and for recovery of compensation for destruction of structures in the property. The present plaintiff was contesting the said suit on behalf of his mother examining himself as D