IMPORTANT POINT
The main legal point established in the judgment is that the liberty granted in an earlier suit does not extend the period of limitation for filing a fresh suit on the same cause of action.

JUDGMENT :

P.B. BALAJI, J.

Prayer: Second Appeal filed under Section 100 of the Code of Civil Procedure to set aside the Judgment and Decree dated 20.01.2017 in A.S. No. 16 of 2015 on the file of the learned Subordinate Judge, Mannargudi confirming the Judgment and Decree dated 20.03.2015 in O.S. No. 88 of 2014 on the file of the learned District Munsif, Mannargudi.

1. The defendant in a suit for redemption of mortgage is the appellant.

2. The parties are described as per their litigative status before the trial Court.

3. The admitted facts are as hereunder.

4. The plaintiffs filed a suit for recovery of possession of a mortgaged property. It is the case of the plaintiffs that they had earlier filed a suit in O.S. No. 186 of 2008 and pending the suit, an Application was taken out, seeking leave of the Court under Order 23 Rule 1 CPC, to file a fresh suit on the same cause of action, as the plaintiffs felt that the pleading in the earlier suit was incomplete.

5. The said Application for leave to file a fresh suit on the same cause of action was finally decided by this Court in C.R.P. No. 1214 of 2010 and this Court, by order dated 22.11.2013, permitted the plaintiffs to withdraw the said suit and thereafter, the second suit in O.S. No. 88 of 2014 came to be filed on 09.06.2014 and was subsequently re-presented on 16.06.2014. The case of the plaintiffs is that though the sum of Rs. 3,000/- had been borrowed from the defendants, the same was repaid and therefore, the plaintiffs were entitled to recover possession of the mortgaged property from the defendants.

6. Per contra, the defendant filed a written statement stating that the suit was barred by limitation and further, it was also not correct to state that the plaintiffs have repaid the entire amount due and payable to the defendant, under the said mortgage. The defendant therefore, prayed for dismissal of the suit.

7. Both the trial Court as well as the First Appellate Court, in view of the leave granted by this Court in C.R.P. No. 1214 of 2010 dated 22.11.2013, proceeded to decree the suit and directed the defendant to hand over possession of the suit property to the plaintiffs. Aggrieved by the concurrent findings of the Courts below, the defendant filed the present Second Appeal.

8. The above Second Appeal was admitted on 08.12.2017, on the following substantial questions of law:

“(a) Whether grant of permission under Order 23 Rule 1 C.P.C. as pleaded in the plaint in O.S. No. 88 of 2014, to file fresh suit on the same cause of action (as that of O.S. No. 186 of 2008) would not prohibit/prevent the respondents herein from filing a fresh suit (O.S. No. 88 of 2014) on a totally different cause of action?

(b) Whether the suit filed by the plaintiffs are not barred by Law of Limitation, as the cause of action in O.S. No. 186 of 2008 and O.S. No. 88 of 2014 are totally different?

(c) Whether the law of adverse possession and consequential adversary title against the hostile owner would not be applicable in case of mortgagee/adverse possessor, though the limitation for redemption of mortgage stand lapsed?

(d) Whether the Courts below are right in shifting the burden of proof of death of the first plaintiff, on to the defendant?”

9. The short point to be decided is as to whether the second suit filed by the plaintiffs in O.S. No. 88 of 2014 was maintainable and not barred by the law of limitation. Section 61(a) of the Limitation Act, 1963 deals with limitation for recovery of possession based on redemption of mortgage or recovery of possession based on mortgage. The limitation period prescribed under the said Article is 30 years from the date on which the right to redemption accrues

10. The learned counsel for the appellant would state that despite this Court in Revision proceedings granting liberty to file a fresh suit to the plaintiffs, it would not entitled the plaintiffs to get over the law of limitation and necessarily, the second suit should be shown to be filed within the period of limita