JUDGMENT 1. These two appeals are between the same parties. Substantial questions of law raised in the appeals are also same. Issues raised before the Courts below were also the same. 2. These appeals are filed under Section 100 of the Code of Civil Procedure by the original plaintiff. 3. In Civil Suit No.1 of 1990, it is the case of the plaintiff that the suit property bearing Survey No.60 Hissa No.5, known as Semadiyu situated in village Garodia, Taluka Sanand, District Ahmedabad, admeasuring 39 gunthas is of the ownership of the plaintiff. The suit property was given by the father of the plaintiff by oral mortgage to the husband of defendant No.1 and father of defendant Nos.2 to 7 for an amount of Rs.350/-. Entry No.102/198 for such oral mortgage was recorded in the Government record and as per the terms of oral mortgage, husband of defendant No.1 and father of defendant Nos.2 to 7 was to re-transfer the suit property on father of the plaintiff paying Rs.350/- to the husband of defendant No.1 and father of defendant Nos.2 to 7. It is further case of the plaintiff that the plaintiff had shown his readiness and willingness to repay the said amount to the defendants but the defendants refused to re-transfer the suit property and therefore, a registered notice dated 19.12.1989 was issued to the defendants. Then also, since the defendants did not release the suit property from the mortgage, the suit is filed for redemption of the mortgaged property. 4. The suit was resisted by the defendants denying mortgage of the suit property by the father of the plaintiff to the husband of defendant No.1 and father of defendant Nos.2 to 7. The defendants have come out with a case that the suit property was of their ownership as the suit property is ancestral property. It is further stated by the defendants that the suit property has been in possession of the defendants as owner of the property and there is no question of re-transfer of the property to the plaintiff. It is specifically stated in the written statement that there was no transaction of mortgage ever entered into between the father of the plaintiff and the husband of defendant No.1 and father of defendant Nos.2 to 7. It is specifically stated in the written statement that there was no transaction of mortgage ever entered into between the father of the plaintiff and the husband of defendant No.1 and father of defendant Nos.2 to 7. The defendants have also taken alternative plea of adverse possession on the ground that the defendants have been in possession of the suit property without any obstruction or interference from the plaintiff for last more than 12 years. 5. Such is the case of the plaintiff in another suit, being Regular Civil Suit No2 of 1990, except difference in description of the property and in the mortgage amount. In this suit, the suit property is bearing Survey No.23, admeasuring 2 acres known as Ghumavadu , situated in village Garodia, Taluka Sanand District Ahmedabad and the suit property is alleged to have been given by oral mortgage for Rs.1800/- to the husband of defendant No.1 and father of defendant Nos.2 to 7. The defendants also resisted this suit on the similar grounds raised by them in the written statement in the above Regular Civil Suit No.1 of 1990. 6. Learned Trial Judge in both the suits framed identical issues at Exh.17 and main five issues are as under:- 1. Whether the plaintiff proves that the suit property is of the ownership of the plaintiff ? (2) Whether the plaintiff proves that the suit property was given by the father of the plaintiff to the husband of defendant No.1 and father of defendant Nos.2 to 7 by oral mortgage ? (3) Whether the defendants prove that the suit is time barred ? (4) Whether the defendants prove that the suit property is ancestral property and of their ownership ? (5) Whether the defendants prove that they have become owners by adverse possession ? Both the suits were though decided on the same day, but by different judgment and decree. 7. Learned Trial Judge in both the suits came to the conclusion that the plaintiff has proved that the suit is of the ownership of the plaintiff and that it was given to the husband of defendant No.1 and father of defendant Nos.2 to 7 by oral mortgage. Learned Trial Judge also held that the defendants have failed to prove that they are owners of the suit property and their plea of adverse possession could not be sustained as they held possession under the oral mortgage. Learned Trial Judge also held that the defendants have failed to prove that they are owners of the suit property and their plea of adverse possession could not be sustained as they held possession under the oral mortgage. On such findings and conclusion reached by the learned Trial Judge, suits of the plaintiff were allowed by judgment and decree dated 30.7.1992 and the defendants were ordered to redeem the suit property from mortgage by accepting the amount of mortgage from the plaintiff. 8. Defendants, therefore, filed two different appeals before the first Appellate Court. Regular Civil Appeal No.46 of 1992 was filed by the defendants against the judgment and decree passed in Regular Civil Suit No.1 of 1990 and Regular Civil Appeal No.47 of 1992 was filed against the judgment and decree passed in Regular Civil Suit No.2 of 1990. 9. First Appellate Court also decided the appeals by different judgments and decrees though on the same day. 10. Learned Appellate Judge in both the appeals recorded that the plaintiff has come out with a specific case in the plaint that the father of the plaintiff orally mortgaged the suit property in favour of the husband of defendant No.1 and father of defendant Nos.2 to 7. The mortgaged amount for such oral mortgage is stated to be beyond Rs.100/- and therefore, as per the provisions of Section 59 of the Transfer of Property Act, when possession was handed over by such mortgage, mortgage could be said to be usufructuary mortgage. For such mortgage, the parties did not enter into any written or registered document for creating mortgage. Learned Appellate Judge has further recorded that so-called admission by the husband of defendant No.1 and father of defendant Nos.2 to 7 in his deposition recorded in Tenancy Case, certified true copy of which was produced on record and exhibited, cannot create mortgage because as per the case of the plaintiff, mortgaged amount was more than Rs.100/-. Learned Appellate Judge further came to the conclusion that learned Trial Judge committed serious error in allowing the suits on the basis of such oral mortgage, which could not transfer any right in defendants as a mortgagee. On such conclusions, learned Appellate Judge held that the suit filed by the plaintiff for redemption based on oral mortgage of more than Rs.100-/- was not maintainable. On such conclusions, learned Appellate Judge held that the suit filed by the plaintiff for redemption based on oral mortgage of more than Rs.100-/- was not maintainable. Learned Appellate Judge then further observed that the questions as to whether the plaintiff has got title to the suit property or not and whether the defendants prove the suit property to be ancestral property or not do not survive for any consideration. Learned Appellate Judge has then observed that it is always open to the plaintiff to recover possession of the suit property on the strength of his title and the present suit being not based on the strength of the title, the plaintiff cannot succeed. On above conclusions reached by the learned Appellate Judge, the appeals filed by the defendants were allowed and the judgment and decree passed by the learned Trial Judge was set aside and the suits of the plaintiff were dismissed by the learned Appellate Judge by judgment and decree dated 28.7.1998. These two appeals are against the above-said judgment and decree passed by the Appellate Court in two different first appeals preferred by the defendants. 11. These appeals were admitted by order dated 24.7.2002 and in each of the appeal, following identical substantial question of law is formulated :- Whether the Courts below had erred at law in not passing the decree for possession based on the plaintiffs title against defendant Nos.1 to 7 ? 12. I have heard learned advocates for the parties. 13. Learned senior advocate Mr.K.G. Vakharia appearing with M.K. Vakharia for the appellant submitted that the plaintiff having been held to be owner of the suit property and when the defendants failed to establish their title to the suit property, if the plaintiff was held not to be entitled to recover possession of the suit property from the defendants on the ground that there was no valid mortgage by the father of the plaintiff, the plaintiff was at least entitled to decree for possession of the suit property on the basis of his title against the defendants. 13.1. 13.1. Mr.Vakharia submitted that once the Trial Court on appreciation of the evidence found, as a matter of fact, that husband of defendant No.1 and father of defendant Nos.2 to 7 admitted in the tenancy proceedings that the father of the plaintiff had placed the suit property by oral mortgage with him for Rs.350/-, even if such mortgage was not validly entered into, the plaintiff would remain to be entitled to have his property back from the defendants who after challenging the title of the plaintiff, failed to prove their title to the property. Mr.Vakharia drew attention of the Court to the relief claimed in the plaint and pointed out that if the relief for release of the property on the basis of the oral mortgage was not permissible to be granted, the plaintiff having prayed for appropriate relief as may be deemed fit to be granted by the Court, Court was competent to mould the ultimate relief to be granted to the plaintiff on finding that the plaintiff is owner of the suit property. Mr. Vakharia further submitted that the Appellate Court has seriously erred in observing that the question as to whether the plaintiff has got title to the suit property or whether the defendants prove the suit property to be an ancestral property, would not survive as the suit filed by the plaintiff is on the basis of the oral mortgage for more than Rs.100/- and such suit for redemption of the mortgage was not maintainable. Mr.Vakharia submitted that learned Appellate Judge also seriously erred in observing that the suit is not based on the strength of title of the plaintiff and therefore, the plaintiff cannot succeed. Mr. Vakharia submitted that if suit for possession on the basis of oral mortgage of more than Rs.100/- is not maintainable, then such suit for all purposes could have been taken as title suit and once title of the plaintiff is already established by cogent evidence, learned Appellate Judge ought to have decreed the suit on the basis of the title of the plaintiff. Mr. Mr. Vakharia has relied on the provisions of Order 7 Rule 7 of the Code of Civil Procedure to point out that though the plaintiff is to state specifically the relief, which the plaintiff claims, either simply or in the alternative but it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. Mr. Vakharia submitted that under Order 7 Rule 7 of the Code of Civil Procedure, the Court is always empowered to grant relief which is not specifically prayed for and which the Court may think just to grant as if it had been asked for. Mr. Vakharia submitted that if suit for possession on oral mortgage is not maintainable, the Courts below could have certainly granted the relief for possession based on the title of the plaintiff if the Court finds that the plaintiff has established his title. In support of his submissions, Mr. Vakharia has relied on the following decisions :- (1) In the case of Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and others reported in AIR (38) 1951 SC 177; (2) In the case of Union of India Vs. M/s. Khas Karanpura Colliery Co. Ltd. reported in AIR 1969 SC 125 ; and (3) In the case of Kolathoor Variath and Another Vs. Pairaprakottoth Cheriya Kumhahammmad Haji reported in AIR 1974 SC 689 . Mr. Vakharia thus urged to allow these appeals on the substantial question of law raised by this Court while admitting the appeals. 14. As against the above-said arguments, learned advocate Mr. M.B. Gandhi appearing for the respondents- defendants submitted that once the suit is for redemption of the mortgage on oral mortgage and once it is found that there is no valid mortgage in the eye of law, suit of the plaintiff was not maintainable in its entirety and therefore, there was no question of passing decree against the defendants on the basis of the title of the plaintiff. Mr. Gandhi submitted that in the suits based on title, different kinds of defences are available to the defendants and therefore, no decree based on title could be passed in the suit for redemption. Mr. Mr. Gandhi submitted that in the suits based on title, different kinds of defences are available to the defendants and therefore, no decree based on title could be passed in the suit for redemption. Mr. Gandhi took the Court to the plaints and pointed out that the plaintiff has prayed for only relief of redemption of the mortgage and residuary prayer leaving the Court to grant any appropriate relief as may be deemed appropriate, cannot be said to be relief in alternative or a relief in general which could be granted within the foundation of the suits. Mr. Gandhi submitted that when the suits are for redemption of the mortgage, based on oral mortgage, it is not open to the Court to grant relief of possession against the defendants on the basis of the plaintiff s title by resorting to Order 7 Rule 7 of the Code of Civil Procedure. Mr. Gandhi submitted that Order 7 Rule 7 of the Code of Civil Procedure could be applied only when the Court is of the opinion that relief not prayed for could be granted to the same extent as if it had been asked for. He pointed out that in a suit for redemption of mortgage, relief, ancillary to redemption of the mortgage, could be granted but a relief based on the title cannot be construed to be a relief to the same extent as if the plaintiff had asked for in the plaint. Mr. Gandhi submitted that residuary relief prayed in the suit leaving the Court to grant relief whatever the Court thinks fit cannot be considered to be relief to the same extent as if the plaintiff had asked for a specific relief in the plaint. Mr. Gandhi submitted that relief for redemption based on mortgage of the property and relief for possession based on title are two different and distinct relief based on two different and distinct claims in the suits and such two different and distinct relief are considered in different manner and ways in the context of various defences put forth by the defendants. He thus submitted that the plaintiff could not be granted any relief in his present suit based on his title to the property against the defendants. He thus submitted that the plaintiff could not be granted any relief in his present suit based on his title to the property against the defendants. Therefore, he submitted that the Appellate Court below has committed no error in reversing the decree for possession based on the plaintiff s title against the defendants. He submitted that judgments relied on by Mr. Vakharia would be of no help to the plaintiff in the facts of the case and he urged to dismiss the appeals. 15. Having heard learned advocates for the parties and having perused the judgments and decrees of the Courts below with record of the cases, it appears that the plaintiff in his suits has come out with a specific case that the father of the plaintiff had placed the suit property with the husband of defendant No.1 and father of defendant Nos.2 to 7 by way of oral mortgage for an amount of Rs.350/-. As against the above case of the plaintiff, the defendants have denied the title of the plaintiff and have come out with a specific case that they are owners of the suit property and therefore, there is no question of redemption of mortgage of the suit property. As per the provisions of Section 59 of the Transfer of Property Act, mortgage other than mortgage by deposit of title deed for principal money of more than Rs.100/- can be effected only by registered instrument. In the present case, admittedly, principal money secured was Rs.350/-, i.e. above Rs.100/-, and as per the case of the plaintiff, the suit property was orally mortgaged with the husband of defendant No.1 and father of defendant Nos.2 to 7. The plaintiff has relied on entry made in the revenue record to establish the oral mortgage made by his father in favour of the husband of defendant No.1 and father of defendant Nos.2 to 7. The plaintiff has also relied on deposition recorded in Tenancy Case No.198/1965, certified true copy of the same was produced at Exh.49, of the deceased husband of defendant No.1 and father of defendant Nos.2 to 7 admitting the oral mortgage made by the father of the plaintiff in his favour. The plaintiff has also relied on deposition recorded in Tenancy Case No.198/1965, certified true copy of the same was produced at Exh.49, of the deceased husband of defendant No.1 and father of defendant Nos.2 to 7 admitting the oral mortgage made by the father of the plaintiff in his favour. Trial Court has accepted the mortgage of the property by the father of the plaintiff in favour of the husband of defendant No.1 and father of defendant Nos.2 to 7 and found that the defendants have failed to prove title to the suit property and also held that the defendants could be said to be mortgagee and on that basis, the suits were allowed. However, the first Appellate Court has come to the conclusion that there is no valid mortgage in the eye of law and therefore, suits for redemption of the mortgage are not maintainable. In my view, the Appellate Court has committed no error in holding that suits for redemption of oral mortgage for the money secured above Rs.100/- were not maintainable. 16. Question then remains as to whether once the plaintiff is held to have proved his title to the suit property, was he entitled to decree for possession based on his title against the defendants in his suits for redemption based on oral mortgage. 17. At this stage, judgments relied by Mr. Vakharia need to be considered. In the case of Firm Sriniwas Ram Kumar (supra), the suit was for specific performance of the contract and question was, on refusal to grant relief for specific performance, whether the plaintiff was entitled to get back his money advanced to the defendants and in that context, Hon ble Supreme Court has held and observed in para 9 as under:- 9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltf's case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. It is true that it was no part of the pltf's case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursusance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A pltf. may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleading and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the deft's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf, to file a separate suit. As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee in Mohan Manucha v. Manzoor Ahmad, 70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the applt. even though the appeal was heard ex parte in the absence of the resp. In the case of M/s. Khas Karanpura Colliery (supra), following observations from para 7 are required to be referred to: 7. ....This conclusion of ours is resisted on the plea that in the writ petition no specific case its pleaded under the second part of subsection (4) of Section 4 and therefore it is not open for us to consider that aspect of the case. We are unable to accept this contention. It is true that the pleadings on this point are rather vague; but all the facts necessary for determining that question are before the court. That aspect of the case appears to have been fully argued before the High Court with out any objection. The High Court has considered and decided that question. Hence the appellant cannot now be permitted to contend that for want of necessary pleadings that question cannot be gone into ... In the case of Kolathoor Variath (supra), the Hon ble Supreme Court has held and observed in para 3 as under:- 3. Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title. Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title. (See Ma Kyi v. Maung Thon, AIR 1935 Rang 230 at p. 232 (FB) and Hansia v. Bakhtawarmal, AIR 1958 Raj 102 at p. 106) Luckily for them, the appellants did not base their suit solely on the oral mortgage. They also founded their claim on their title. Notice the relief A (1) in the plaint: "That in case the Court is of opinion that the plaintiffs are not entitle to sue on the strength of mortgage as there is no mortgage deed in respect of the properties the plaintiffs are entitled to sue on the strength of the title of their Tavazhi and hence the Court may be pleased to decree the suit ordering the defendant to surrender the properties to the 1st plaintiff, with the past and future mesne profits relinquishing all the rights of the defendant." In paragraph 1 of the plaint they set up their title to the disputed land. In paragraph 4 of his written statement the respondent says that he is not a mortgagee but a tenant and has Kudiayma rights in the land. So far from denying their title, he has impliedly admitted that they are the owners of the land. Again, he has not claimed ownership of the land by virtue of adverse possession. He simply claims permissive possession as a tenant under them. In the result, they are entitled to regain possession on the strength of their title unless he is held to be or to have become under any Kerala land reform measure a tenant. In the case on hand, when it is found that there is no valid mortgage and if the plaintiff is to be held entitled to recover possession on the basis of his title, foundation in the pleading of alternative case was required, and the right of the defendants to hold possession of the suit property even if they are held to be not owners of the property, would remain to be decided. Therefore, decision in the case of Firm Sriniwas Ram Kumar (supra) and in the case of Khas Karanpura Colliery (supra), would have no application to the facts of the present case. 18. Therefore, decision in the case of Firm Sriniwas Ram Kumar (supra) and in the case of Khas Karanpura Colliery (supra), would have no application to the facts of the present case. 18. As far as decision in the case of Kolathoor Variath is concerned, it was on different fact situation. In the said case, against the case for redemption of mortgagee by the plaintiffs, the defendant came out with a case that he is not mortgagee but a tenant. Thus, far from denying the title of the plaintiffs, the defendant had impliedly admitted that the plaintiffs were owners of the land. The defendant has not claimed ownership of the land by virtue of adverse possession. The defendant simply claims permissive possession as a tenant under the plaintiffs. In the plaint, the plaintiffs also prayed that if Court is of the opinion that the plaintiffs are not entitled to sue on the strength of mortgagee as there is no mortgage deed in respect of the properties, the plaintiffs are entitled to sue on the strength of the title and the Court may be pleased to decree the suit ordering the defendant to surrender the properties to the first plaintiff with past and future mesne profits relinquishing all the rights of the defendant. In view of such fact situation, Hon ble supreme Court has held that where a plaintiff cannot regain possession on the basis of oral mortgage, as it cannot be proved in the Court of law for want of registration, it is open for him to recover possession on the strength of title. 19. In the present case, the defendants have come out with a plea that they are owners of the suit property. The plaintiff in his evidence has not stated as to how his father or he was owner of the property but he has simply stated that his father had orally mortgaged the suit property with the husband of defendant No.1 and father of defendant Nos.2 to 7 for Rs.350/-. Trial Court while disbelieving the plea of the defendants about their ownership right considered the defendants as mortgagee of the plaintiff and on that basis, held that the defendants cannot put up the plea of adverse possession. Trial Court while disbelieving the plea of the defendants about their ownership right considered the defendants as mortgagee of the plaintiff and on that basis, held that the defendants cannot put up the plea of adverse possession. In such fact situation, if the suits of the plaintiff are found not maintainable for redemption of mortgage in absence of any valid mortgage of the suit property, the suits cannot be treated as title suits. Though in some respects, suit for possession and suit for redemption are similar but there are vital differences, also. In a suit for redemption, on proof of valid mortgage, redemption could be granted. Whereas in title suit, plaintiff is required to establish his title to the suit property. The period of limitation for a suit of redemption is 30 years under the Limitation Act of 1963, whereas, for suit for recovery of possession, period available is 12 years. In a suit for redemption, it is not open to the mortgagee to put forth plea of adverse possession, whereas in the suit for title, even if defendants fail to establish ownership right, they are on the basis of their long possession, entitled to claim ownership right if they are successful to establish possession of the suit properties in knowledge of and adverse to owners of the property. Thus, if defendants are successful to set up hostile title against the original owners, they can be held to be owners by adverse possession. Therefore, it may not be always permissible or convenient to treat the suit for redemption as a suit for possession but in given facts of the case, it may be permissible, like the one which was before the Hon ble Supreme Court in the case of Kolathoor Variath (supra). It is required to be noted that while in the suit for redemption, averments in the plaint are pure and simple and issues framed are as regards mortgage of the property and time limit for filing the suit and if mortgage is accepted by the defendants, there may be limited defences available to the defendants, whereas in the suit for title, various defences are available to the defendants. Thus, if the suit for redemption is allowed to be converted in the suit for title to recover possession of the suit property, entire nature and character of the suit would be changed. Thus, if the suit for redemption is allowed to be converted in the suit for title to recover possession of the suit property, entire nature and character of the suit would be changed. For the above reasons, the plaintiffs suits cannot be treated as title suits. The plaintiff having simply prayed for redemption of mortgage and since the defendants were prevented from taking various defences, the plaintiff cannot be made entitled for a decree of possession based on his title against the defendants. 20. For the reasons stated above, the appeals are required to be dismissed. 21. In the result, the appeals are dismissed and judgment and decree passed by the first Appellate Court are hereby confirmed. 22. Record and Proceedings to be sent back forthwith.

VAGHELA RAGHUVIRSINH v. PRATAPBA WD/O ADESINH DALALBHAI