Judgment :- 1. The Civil Miscellaneous Appeal is directed against the judgment of the Subordinate Judge of Kottayam in A. S. No. 150 of 1966 remanding the case to the trial court for determination of the question whether the defendants are entitled to the benefits under Act 1 of 1964 as amended by Act 9 of 1967 with reference to the property which the plaintiffs are directed to redeem. The main questions that came up for decision before the learned appellate judge were (1) whether the suit for redemption which was the second of its kind was maintainable; (2) the competency of the plaintiffs to redeem; and (3) whether the transaction covered by Ext. P1 was a mortgage or a lease. 2. On all these questions findings were recorded by the trial court in favour of the plaintiffs and they were confirmed by the appellate court; the case however had to be remanded for a consideration of the question whether the recent Land Reform Acts had conferred any additional benefits on the defendants and if so, to what extent? But the learned counsel for the appellants (defendants 2, 4, 5, 6 & 8) canvassed before me all the above questions and bargained for a decision afresh on those points. I am therefore, compelled to go into those questions over again. 3. On the first question namely, the maintainability of the suit learned counsel argued that the right of redemption is barred in view of the fact that a suit of a similar nature was once instituted and a decree was obtained, but the plaintiffs did not care to execute the decree in time with the result that it got barred. Under such circumstances, according to the law then prevalent in Travancore area where the property lies, a second suit was barred. This was the view taken by the Travancore High Court as early as the year 1063 (ME.): vide Raman Keshavan v. Kathiroo Kunju Ooppappa and 3 others (5 TLR. 30). There, the learned judges held that "neither a court of law nor a court of equity will allow a party to execute, by a fresh suit, a decree whose execution has become barred" This was followed in Iyappan Iyappan v. Mani Eapan and others (13 TLR. 109); Armukam v. Veloor Pillay & others (18 TLR. 76); Ganapathy Josiyar Sivaramalingom and another v. Krishnar Narayanar (5 TLJ. 109); Armukam v. Veloor Pillay & others (18 TLR. 76); Ganapathy Josiyar Sivaramalingom and another v. Krishnar Narayanar (5 TLJ. 5) and other cases. The position thus was that where a decree has been obtained for redemption of a mortgage, the mortgagor's only remedy was to execute that decree and not to sue again for redemption. The British Indian High Courts on the other hand, took a different view and that view was upheld by the Privy Council in Ragunath Singh v. Mt. Hansraj (AIR. 1934 PC. 205). There the learned judges held: "The right to redeem is a right conferred upon the mortgagor by enactment, of which he can only be deprived by means and in manner enabled for that purpose, and strictly complied with. The provision in a decree in a suit for redemption that in case of default by the plaintiff in payment, his case will stand 'dismissed' cannot be construed as meaning that the plaintiff was to be debarred of all right to redeem and that the decree was an order of a Court extinguishing the right to redeem within the meaning of the proviso to S.60, T. P. Act. A second suit for redemption will be maintainable in such cases." Even after this pronouncement by the Privy Council, the Travancore High Court stuck to their own view, that a second suit is not maintainable where a decree for redemption had become barred. This position is seen reflected in Narayana Pillai v. Nandankutty Nadar (1947 TLR. 533) wherein Sankarasubba Aiyar, J. on a consideration of the decision of Privy Council in Ragunath Singh v. Mi. Hansraj (AIR. 1934 P. C. 205) observed: "As there was want of uniformity of opinion among the British Indian High courts, the Madras High Court referred the question for an authoritative decision by a Full Bench and Vedapuratti v. Vallabha Valiya Raja (ILR. 25 Mad. 300 FB.), is that Full Bench ruling. The Privy Council, however, has held in Ragunath Singh v. Mt. Hansraj Kunwar (AIR. 1934 PC. 205) that a second suit for redemption will be competent unless it could be said that the former decree involved a decision that the mortgagor's rieht to redeem was extinguished. The British Indian High Courts have therefore to be constrained to take a view in conformity with that indicated in Ragunath Singh v. Mt. Hansraj Kunwar (AIR. 1934 PC. 205). 205) that a second suit for redemption will be competent unless it could be said that the former decree involved a decision that the mortgagor's rieht to redeem was extinguished. The British Indian High Courts have therefore to be constrained to take a view in conformity with that indicated in Ragunath Singh v. Mt. Hansraj Kunwar (AIR. 1934 PC. 205). So far as this court is concerned the matter is different. There is no justification to change the current of our decision on the basis of the Privy Council ruling." This was followed in Devasia v. Rose (1948 TLR. 949). But this view has been dissented from by the Travancore-Cochin High Court and later by the Kerala High Court and the law as it now stands is that any number of suits for redemption of the same mortgage would lie within the period of limitation, unless the right to redemption has been lost in the meanwhile by act of parties or by decree of court. A Full Bench of the Travancore-Cochin High Court in. Narayana Shenoi v. Yasodabai (FB.)(AIR.1955 Tra. Co. 9) on a consideration of the earlier Travancore and Cochin decisions and the Privy Council decision in Ragunath Singh v. Mt. Hansraj (AIR. 1934 PC. 205) and other decisions of the British Indian High Courts bearing on the question, held: "Notwithstanding the institution of a suit and the passing of a decree for redemption, a subsequent suit for redemption of the same mortgage is maintainable even though the execution of the decree for redemption obtained in the previous suit is barred by limitation." This view has been followed by the Kerala High Court as is seen from Edumban Chettiar v. Ramalakshmi (AIR. 1965 Kerala 153). There the learned single judge on a review of the position in the light of the authorities held: "It may be regarded as settled that any number of suits for redemption of the same mortgage would lie within the period of limitation unless the right to redeem has been lost in the meanwhile, by act of parties or by decree of Court. In Ragunath Singh v. Hansraj Kunwar (AIR. 1934 PC. In Ragunath Singh v. Hansraj Kunwar (AIR. 1934 PC. 205) the Privy Council held in a converse case, that unless it could be said that a decree involved a decision that the mortgagor's right to redeem was extinguished, it cannot operate by way of res judicata so as to prevent the Courts, under S.11 Civil Procedure Code, from trying a second redemption suit. The Federal Court has also said so in Subba Rao v. Mattapalli Raju (AIR. 1950 FC.1)." There cannot therefore be any doubt that the present suit resulting in a decree for redemption is maintainable since it was brought within the period of limitation of the mortgage. 4. Learned counsel then took up the position that at the time the first decree was passed, according to the law then in force in the Travancore area the mortgagor's right of redemption having been lost by the decree getting barred the mortgagees had perfected their title by adverse possession and that title will be available to them even in spite of the change in the legal position regarding limitation as laid down in the subsequent decisions. In other words, the plea is that the mortgagees are now full owners of the property since the right of redemption which had emerged in the decree has been lost by limitation. But this is a plea raised for the first time in this court only. The plea of limitation is a plea on a question of fact and that has to be taken in the trial court itself and tried as an issue in the case. This position is well fortified by a series of decisions. In Chandikamba v. Vimvanathamayya (AIR. 1933 PC. 117 the Privy Council held: "Their Lordships are clearly of opinion that it is quite impossible to allow the appellant to raise the point without any pleadings and without any evidence before this Board, and, they will humbly advise His Majesty that the appeal should be dismissed with costs and the decree of the High Court affirmed." To the same effect is the decision of the Privy Council in S. N. Mundade v. New Mofussil Co. Ltd. (AIR 1946 PC. Ltd. (AIR 1946 PC. 97) where the learned judges held: "Where a plea in any form is not taken before the trial court, there is no trace of it in the pleadings of the party, it is not the subject of an issue, the trial court does not refer to the plea in its judgment, nor is any evidence led with regard to it, it is not open to the party to take such a plea for the first time before the appellate Court." The High Court of Rangoon held in Ma To v. Maung E. Byu (AIR 1940 Rangoon 136) as follows: "The question of adverse possession must necessarily depend on facts and a point of this kind cannot be raised for the first time in second appeal." The point arose before a Full Bench of the Travancore-Cochin High Court in Travancore Forward Bank Ltd. v. Subbaraya Iyer (FB.) (AIR 1954 Tra-Co. 406) where their Lordships held: "The contention was not advanced before the lower court and is not even indicated in the Memorandum of Appeal. There is also no evidence to show how as a matter of fact the service of summons was effected in this case". So also in Koyamkutty v. Muhammad (1957 KLT. 874) this court held: "Parties ought not to be permitted to raise new points not covered by the pleadings or the issues. No appellate court will be justified in reversing the judgment of the trial court without pleadings being amended and the necessary issues being raised. No amount of evidence can be looked into upon a plea which was never put forward". I am, therefore, of the view that the defendants are not entitled to take up the plea of adverse possession at this stage, before this court. 5. The second question argued is, how far the plaintiffs are competent to redeem. Ext. P1 is the mortgage which is sought to be redeemed. The case of the appellants is that the right of redemption has not accrued to present plaintiffs 1 and 2. Ext. P1 was executed by two persons Raman Raman and Raman Krishnan. According to the plaintiffs, the property belonged to the Vaippathumali family which later on got divided into two branches Kuzhikandam and Thinankala, each branch getting one-half of the equity of redemption and the one-half right which fell on Kuzhikandam sakha was further partitioned under Ext. Ext. P1 was executed by two persons Raman Raman and Raman Krishnan. According to the plaintiffs, the property belonged to the Vaippathumali family which later on got divided into two branches Kuzhikandam and Thinankala, each branch getting one-half of the equity of redemption and the one-half right which fell on Kuzhikandam sakha was further partitioned under Ext. P2 whereby their one-half right of redemption was allotted to one Govindan Nair who assigned that right to the 1st plaintiff under Ext. P3. The other one-half retained by Thinankala sakha was allotted to the 2nd plaintiff in Ext. P4 partition, and thus according to the plaintiffs, the entire equity of redemption has devolved on them. Ext. P2 is the partition dated 29 21106 wherein the numbers of the Kuzhikandam sakha effected the partition of properties belonging to that sakha. Therein the equity of redemption of Ext. P1 mortgage is also included. The right recited is one-half only, and that was allotted to Govindan Nair. By Ext. P3 of the year 1956, Govindan Nair assigned that right to the 1st plaintiff. Ext. P4 partition is of the year 1954 and in that partition the one-half right of the equity of redemption of the plaint mortgage was allotted to the 2nd plaintiff (vide C schedule in that partition). The contention of the learned counsel for the appellants is that under Ext. P5 decree, which was passed on 30 21106 one-half of the equity of redemption had fallen on plaintiffs 1 and 2 thereto namely, Raman Parameswaran and Raman Govindan and the remaining one-half to the 3rd plaintiff namely, Parameswaran Parameswaran. But in the partition Ext. P2, dated 29 21106 the 1st plaintiff namely Raman Parameswaran was excluded and the partition was actually entered into by the 2nd plaintiff Raman Govindan with certain others and it is in that partition that the one-half was allotted to Govindan Nair from whom the present first plaintiff purchased. The learned counsel would point out that the person excluded from Ext. P2 partition namely Raman Raman was the Karanavan and without him, a valid partition could not have been entered into and therefore, the derivation of that one half is not corrector valid. The learned counsel would point out that the person excluded from Ext. P2 partition namely Raman Raman was the Karanavan and without him, a valid partition could not have been entered into and therefore, the derivation of that one half is not corrector valid. But in a suit of this nature wherein the plaintiffs admittedly possessed a substantial part of the equity of redemption even granting that one of the persons entitled to a fraction of the equity of redemption is excluded, can maintain an action for redemption because the rule is that a person possessing a fractional right of redemption can redeem the whole, subject to settlement of accounts later, with the person excluded. I, therefore, do not see any point in this contention also. 6. The next question is as to the legal incidence of the transaction evidenced by Ext. P1; whether the document would amount to a redeemable mortgage or an irredeemable lease. I think this question requires reconsideration by the court below in view of the recent decisions on this point rendered by this court in Krishnan Nair v. Sivaraman Nambudiri [1957 KLT. 78 (FB.)], Kochuvarghese v. Gouri Amma [1969 KLT. 22 (S. B.) ], Kunhiraman Nambiar v. Pairu Kurup [1969 KLT. 62 (FB)] and other cases bearing on the point. I would, therefore, leave this question open, to be decided afresh by the trial court on taking evidence, if any, and hearing arguments on both sides, side by side with the question for the decision of which the case has already been remanded by the learned appellate judge namely, whether defendants 5, 6 and 8 are entitled to the benefits of Act I of 1964 as amended by Act 9 of 1967 and other subsequent enactments, if any. Finding on issue No. 7 will stand vacated. 7. One other point touching on the damages awarded in respect of a jack-tree mentioned in the document, but later disappeared from the property, was also argued. The learned appellate judge enhanced the amount under this head from Rs. 5/-awarded by the trial court, to Rs. 300. On a re-appraisal of the question on the available materials, I think that the finding of the appellate judge is correct. 8. The mortgagee is under a duty to explain how the tree was lost and he should make good the value of the tree to the mortgagor. 5/-awarded by the trial court, to Rs. 300. On a re-appraisal of the question on the available materials, I think that the finding of the appellate judge is correct. 8. The mortgagee is under a duty to explain how the tree was lost and he should make good the value of the tree to the mortgagor. The liability is sought to be shirked on the explanation that the tree was cut and removed by a road-committee for facilitating the construction of a road by the side of the property and the tree being at the time in a deteriorated state, could not fetch more than Rs. 5/-. This case of the mortgagee was accepted by the trial court, but disapproved by the learned appellate judge. The mortgagee was bound to inform the mortgagor by notice then and there, when the tree was so cut and removed. That having not been done, he is liable for its value which was assessed at Rs. 300/-. The appellate court has discussed the evidence on this point minutely and has come to the correct conclusion and I accept the same. No other point arises. In the result, the Civil Miscellaneous Appeal will stand dismissed subject to the following modifications: Finding on issue No. 7 is vacated and the question covered by that issue will be considered afresh by the trial court and appropriate findings entered, along with the question already referred to it by the lower appellate court. The learned Munsiff will be at liberty to take evidence on these questions, if necessary. In respect of issue No. 5, the finding of the lower appellate court is confirmed. Costs of this appeal will abide the final result. Dismissed.