The court affirmed that in a usufructuary mortgage case, the right to recover possession commences upon payment of the mortgage amount, and time spent in previous legal proceedings can be excluded when determining limitation.

JUDGMENT :

P.T. ASHA, J.

Prayer: Second Appeal filed under Section 100 of CPC against Judgment and Decree dated 24.08.2021 made in A.S.No. 5 of 2017 on the file of the Sub Court, Avinashi reversal of the Judgment and Decree dated 02.01.2017 made in O.S.No. 64 of 2013 on the file of the District Munsif, Avinashi, Tiruppur.

1. The defendants in the suit O.S.No. 64 of 2013 on the file of the District Munsif, Avinashi, (originally O.S.No. 357 of 2006 on the file of the District Munsif, Tiruppur) are the appellants before this Court. The facts which have led to the filing of the above Second Appeal is narrated herein below and for ease of understanding the parties are referred to in their ranking as before the Trial Court.

2. Relief claimed in the plaint:

(a) Declaring that the plaintiffs are entitled to the respective shares of the suit properties as detailed in plaint and put them in possession of their respective shares.

(b) Awarding compensation from the defendants at a consolidated sum of Rs.24,000/- per annum towards the damage and mesne profits from the date of suit till the date of possession is surrendered to the plaintiffs.

(c) Awarding the costs of the suit to the plaintiff.

(d) With other remedies available and Render Justice.

Plaintiffs' case:

3. It is the case of the plaintiffs that the suit property belonged to one Vedantha Pandithar and Sadasiva Kurukkal. The two of them had executed a usufructuary mortgage in favour of Rama Gounder in the year 1943. On 02.02.1976, after the demise of the original mortgagors, their respective legal representatives had sold the suit properties. Item I of the suit property was sold to Ramasamy Gounder son of Periya Rangana Gounder. Item II of the suit property was sold to Ramasamy Gounder son of Appaji Gounder. Item III of the suit property was sold to Karichi Gounder son of Subbana Gounder. Rama Gounder, the mortgagee had two sons Nachimuthu and Kumarasamy. Kumarasamy had two sons, namely, Palanisamy and Ramasamy.

4. The plaintiffs would submit that since 30 years had passed, the mortgage deed was deemed to be wiped out under “Madras Agriculture's Department Relief Act.” Therefore, the mortgagee or his heirs are bound to surrender possession to the mortgagor or their heirs. Meanwhile, the sons and grand sons of Rama Gounder who took possession of the suit property after the death of Rama Gounder and knowing fully well about the sale deed dated 02.02.1976 filed a suit in O.S.No. 6 of 1981 on the file of the Sub Court, Tiruppur for Specific Performance on the basis of an agreement of sale said to have been entered into between Rama Gounder and the original mortgagors against the legal representatives of the original mortgagors and the purchasers, who are the predecessors of the plaintiffs herein.

5. Parallely, O.P.No. 39 of 1981 was filed by the predecessors of the