JUDGMENT : Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure, against the judgment and decree 23.12.2009 in A.S.No.13 of 2005 on the file of the Subordinate Judge, Kuzhithurai (Camp Court) confirming the judgment and decree dated 25.08.2004 in O.S.No.304 of 1999 on the file of the I Additional District Munsif Court, Kuzhithurai. Prayer : Second Appeal is filed under Section 100 of Code of Civil Procedure, against the judgment and decree 23.12.2009 in A.S.No.23 of 2005 on the file of the Subordinate Judge, Kuzhithurai (Camp Court) confirming the judgment and decree dated 25.08.2004 in O.S.No.528 of 1989 on the file of the I Additional District Munsif Court, Kuzhithurai. 1.1 There were two suits: The first is O.S.No.528 of 1989 and the other is O.S.No.304 of 1999, separated by a decade from the earlier suit. They were laid by the same plaintiffs, substantially against the same set of defendants. O.S.528 of 1989 was laid for bare injunction, and the second suit in O.S.304 of 1999 was laid for declaration of title over 'A' Schedule property, and for recovery of possession of 'B' Schedule property. 1.2 Both the suits came to be tried jointly and the trial Court partly decreed both the suits, the details of which would be stated later. Challenging these decrees, the plaintiffs preferred two separate first appeals in A.S.No.23 of 2005 (against the decree passed in O.S.No.528 of 1989) and A.S.No.13 of 2005 (challenging the decree passed in O.S.No.304 of 1999). Both the appeals came to be dismissed by a common judgment of the first appellate Court. Pending the first appeals, the 1st plaintiff died. Hence, the 2nd plaintiff, who is none other than the son of the 1st plaintiff, has preferred these appeals. 2.1 Before introducing the pleadings, it is necessary to introduce the suit properties. The plaintiffs claim that they are the title holders of 22.5 ares equivalent to about 55.60 cents in R.S.Nos.403/12 and 403/13 of Kollengodu Village, Vilavancode Taluk, Kanyakumari District. This property is described as the suit property in O.S.No.528 of 1989 (filed for bare injunction) and 'A' Schedule property in O.S.No.304 of 1999, the suit for recovery of property. Out of this, a small portion of the 'A' schedule property, measuring about 6 cents on north west is described as 'B' Schedule property in O.S.No.304 of 1999. This property is described as the suit property in O.S.No.528 of 1989 (filed for bare injunction) and 'A' Schedule property in O.S.No.304 of 1999, the suit for recovery of property. Out of this, a small portion of the 'A' schedule property, measuring about 6 cents on north west is described as 'B' Schedule property in O.S.No.304 of 1999. This is the property in relation to which redemption is sought. Both the Courts below have decreed the suits but after excluding the 'B' Schedule property (north-western 6 cents out of 55.60 cents), and this 6 cents is the bone of contention in these appeals. 3. For narrative convenience, the parties would be referred to by their description in O.S.No.304 of 1999. 4. The Pleadings: (a) The plaintiff's case: ? 'A' Schedule property originally belonged to a certain Nair Tarawad. It was brought to auction for default in payment of land revenue. The property, at the relevant time, was part of Old Sy.No.1100, which had a total extent of 1.61 acres. ? In the said auction, one Parameswaran Pillai purchased 1/6th share in this property vide Ext.A1, dated 27.06.1114 ME (around 1939). Subsequently, under Ext.A5, dated 19.01.1116 ME (in 1940), another Madevan Pillai purchased another 1/6th share in the said property. Thus as between Parameswaran Pillai and Madevan Pillai, they became entitled to 1/3rd of the total extent. •?While so, both Parameswaran Pillai and Madevan Pillai sold their properties that they had purchased under Ext.A1 and Ext.A5 to certain Samuel and his brother Apollos. Samuel purchased one-half of the 1/3rd under Ext.A3, dated 24.08.1115 ME (= 09.04.1940). The sale deed in favour of Apollos is Ext.A7, dated 15.04.1119 (= 30.11.1944). According to the plaintiffs, Ext.A7 is a benami sale by Samuel that he had purchased it in the name of Apollos, and that only Samuel was enjoying the entire property covered under Ext.A3 and Ext.A7. On the demise of Samuel, the property devolved on his wife, the 1st plaintiff herein and also his son, the 2nd plaintiff. When the defendants tried to put up some construction in the 'A' Schedule property, the plaintiffs came out with O.S.No.528 of 1989. •?They subsequently laid the other suit in O.S.No.304 of 1999 seeking declaration of their title over 'A' Schedule property and recovery of possession of 'B' Schedule property after removing whatever construction that they have made with arrears of rent and future rent. •?They subsequently laid the other suit in O.S.No.304 of 1999 seeking declaration of their title over 'A' Schedule property and recovery of possession of 'B' Schedule property after removing whatever construction that they have made with arrears of rent and future rent. (b) Defendants' Case: ? The case of the defendants is that the 'A' Schedule property originally belonged to one Poruthiudayan Abel. He is the ancestor cum predecessor-in-title of the plaintiffs. On 14.10.1098 ME (28.05.1923), under Ext.B1, he had mortgaged a portion of the property in R.S.No.403/13 which is described as 'B' Schedule property in favour of one Ponnu. The defendants claim that they are the descendants of this ponnu. Even if the plaintiff traces her title to the auction purchasers under Ext.A.1/Ext.A.2, Ext.A.5/Ext.A.6, there is no case that these auction purchasers had actually taken possession of the property. ? There is no landlord-tenant relationship between the parties as alleged. The allegation that the building in 'B' schedule property was put up by the plaintiffs is denied and it was indeed put up by the defendants. The property tax assessment is also in the name of the defendants. The door number of the said building is not 11/81 as alleged in the plaint but is 6/81. 'B' schedule property is not properly described. At any rate, the defendants have prescribed title by adverse possession. 5. The dispute went to trial and both the suits were tried together. Before the trial court, the second plaintiff examined himself as P.W.1. Muthan, the first defendant in O.S.No.304 of 1999 was examined as D.W.1, and they also examined another Muthaiyan as D.W.2. The plaintiff had produced Ext.A.1 to Ext.A.32, and the defendants have produced Ext.B.1 to Ext.B.12. Besides, the trial court has appointed a Commissioner for local inspection and his reports are taken on record as Ext.C.1 and Ext.C.2. 6. On appreciating the evidence, both the courts below came to the identical conclusion that the plaintiffs have not proved that the defendants were tenants under the plaintiffs, and also believed that the defendant is in an independent possession of 'B' schedule property and accordingly, granted a decree for the remaining portion. Hence, the present second appeals. 7.1 These second appeals are for considering the following substantial questions of law: 'Whether the mortgage claimed by the defendants is redeemable or time barred'? Hence, the present second appeals. 7.1 These second appeals are for considering the following substantial questions of law: 'Whether the mortgage claimed by the defendants is redeemable or time barred'? 7.2 On hearing, this Court framed an additional substantial question of law: 'Was not the court in error in not considering the effect of Ex.A.17 judgment and framing Ext.A.13 Oodukoor Award'? 8.1 The learned counsel for the appellant/2nd plaintiff argued that the case of the defendants is that the defendant is a mortgagee under certain Poruthiudayan Abel. The mortgage deed, as already stated, was executed some time in 1923 by the above said Poruthiudayan Abel in favour of one Ponnu. If the defendants are the mortgagees of the property, necessarily, the plaintiffs would be entitled to redemption. He placed reliance on the judgment in Singh Ram Vs. Sheo Ram and others [ 2014(9) SCC 185 ]. 8.2 The learned counsel then proceeded to raise an issue founded on Ext.A.13 and Ext.A.17. Of them, Ext.A.17 is a copy of the judgment in O.S.No.1 of 1956. This suit was laid by Kanakku Thanu Pillai Velayudhan Pillai for redemption wherein he described the present suit property along with the entire property in old Survey No.1100 as belonging to Iluppamood house and also having Kadakurichi tarawad for redemption. The suit was laid against certain Abel Daniel and 10 others. Of the 11 defendants, the fifth defendant is the first plaintiff herein. The seventh defendant is Ponnan Nadar Muthan Nadar, who is one of the parties to the present suit along with his son. This Muthan Nadar claims title in justifying his occupation based on Ext.B.1 mortgage deed dated 14.10.1098 ME = 28.05.1923. The defendants 1 to 3 claim under Poruthiudayam Abel, who according to the defendants had executed Ext.B.1. Now in O.S.No.1 of 1956, the plaintiff therein claims that the entire 1.61 acres in old Survey No.1100 was mortgaged by the tarawad some time in 1070 ME (about 1895). The suit was essentially contested by the fifth defendant/first plaintiff in the present suit. Both the heirs of Porudhiyudayan Abel, the mortgager under Ext.B.1 and Muthan Nadar, one of the heirs of the mortgagee Ponnu Nadar under Ext.B.1 remained ex-parte. The present first plaintiff as the fifth defendant in that suit essentially pleaded about the revenue auction sale (Ext.A.1) and also about oodukoor award (Ext.A.13) here. Both the heirs of Porudhiyudayan Abel, the mortgager under Ext.B.1 and Muthan Nadar, one of the heirs of the mortgagee Ponnu Nadar under Ext.B.1 remained ex-parte. The present first plaintiff as the fifth defendant in that suit essentially pleaded about the revenue auction sale (Ext.A.1) and also about oodukoor award (Ext.A.13) here. On accepting her contention, the court had passed a preliminary decree for redemption of the entire 1.61 acres except plots 1 and 2. The plots 1 and 2 here matches the extent availed in Ext.A.1/Ext.A.2 sales certificate and Ext.A.5/Ext.A.6 sales certificates. To be more candid, redemption was allowed for 49 cents after excluding plot Nos. 1 and 2 in the oodukoor award. He submitted that reading of Ext.A.13 along with Ext.A.17 would indicate that the defence now offered by the defendants based on Ext.B.1 mortgage deed cannot stand. 9. Refuting the contention of the learned counsel for the appellant, the learned counsel for the defendants/respondents submitted that the present contention of the 2nd plaintiff literally is a deviation from his core pleadings. It is his positive case that the defendants are the tenants under the plaintiffs but till date the tenancy remained unproved. Even if the argument is considered, what it establishes is that notwithstanding the preliminary decree passed Vide Ext.A.17 in O.S.No.1 of 1956 and notwithstanding passing of Ext.A.13 oodukoor award, the defendants have been in possession of the property. It is not that Muthan or his son entered possession as a tenant now, but they have been in possession even long prior to that and from the date of Ext.B.1. In other words, from the date of Ext.B. 1 till date they have been in continuous possession without interruption. Secondly, the plaintiff has no case based on Ext.A.13 r/w Ext.A.17 and it is a creation out of the ingenuity of the plaintiffs' counsel which he raises before this Court for the first time. A reading of the plaint emphasizes more on the re-survey number of the property. This may become relevant only in the context of the description of the property mortgaged by Poruthiyudayan Abel in favour of Ponnu Nadar under Ext.B.1, which describes the measurement of the plots in terms of 'dhannu', an old unit measurement prevailing in the area. (The conversion factor of dannu into metric system is one dannu is 10 feet). This may become relevant only in the context of the description of the property mortgaged by Poruthiyudayan Abel in favour of Ponnu Nadar under Ext.B.1, which describes the measurement of the plots in terms of 'dhannu', an old unit measurement prevailing in the area. (The conversion factor of dannu into metric system is one dannu is 10 feet). Accordingly, the plot that was covered under Ext.B.1 is 50 ft x 30 ft is about 1500 sq. ft. This would be about 3.5 cents. This, according to the defendnants falls exclusively in re-survey No.403/13. To the east of re-survey No.403/13 is re-survey No.403/12. In the plaint, it is disclosed that re-survey No.403/12 has an extent of 20.5 ares i.e 50.6 cents, and 403/13 is 2.0 ares which would be approximately 5 cents. 10. There was some difference of view expressed at the bar, and therefore this Court required Mrs.Christy Theboral, learned Additional Government Pleader who was present in the court to help the court with the necessary village record pertaining to R.S.Nos.403/12 and 403/13. The learned Additional Government Pleader too had made available a duly authenticated copy of the Village 'A' register for R.S.Nos.403/12 and 403/13 of Kollengodu Village for this Court to compare. This document is now received as an additional exhibit as Ext.C.3. 11. As per the Village 'A' register, re-survey No.403/12 has an extent of 20.5 ares, and is seen registered in the names of Sam David and Rathnapoo. Similarly, Survey No.403/13 also is registered in their name and is stated to have an extent of 2.0 ares as contended by the plaintiffs. The said Sam David is the son of Samuel who was a purchaser from Parameshwaran Pillai, the auction purchaser in Ext.A1/Ext.A.2. Rathnapoo is stated to be the widow of Apollo. The said Apollo is a purchaser under Ext.A.7/Ext.A.8 to whom the property was sold by the auction purchaser under Ext.A.5. The plaintiffs had purchased the property only from Samuel's branch. The plaintiffs claim that they hold the entire property notwithstanding the fact that part of the property is registered in the name of Apollo's widow Rathnapoo. 12. If the facts are filtered, if not distilled, it emerges that the defendants and their ancestors were in continuous possession of the property since Ext.B.1 in 1940. The plaintiffs claim that they hold the entire property notwithstanding the fact that part of the property is registered in the name of Apollo's widow Rathnapoo. 12. If the facts are filtered, if not distilled, it emerges that the defendants and their ancestors were in continuous possession of the property since Ext.B.1 in 1940. It may be that oodukoor award might have been passed under Ext.A.13, but notwithstanding the passing of the oodukoor award, the defendants continue to occupy that which they have been occupying for years. This tears apart the plantiff's contention that the defendants are their tenants. 13. Having stated thus, Ext.B.1 discloses that the defendants could have been in possession only to the extent of 3.5 cents and no more. They have pleaded an alternate plea of adverse possession over an extent which exceeds the area covered under Ext.B.1. But this plea runs inconsistent to the principal plea founded on Ext.B-1. Secondly, there is no effort to substantiate the plea of adverse possession dehors the plea of Ext.B.1 mortgage. 14. As justly contended by the defendants, the plaintiffs cannot sustain the plea of tenancy and necessarily the defendants' possession cannot be directed to be delivered. But as indicated earlier, the extent which the defendants can hold on can be no more than 3.5 cents covered under Ext.B. 1. If the boundary description given to Ext.B.1 is looked into, the eastern and southern boundary of 'B' schedule property is given as re-survey Nos. 403/12 and 403/13. It is already found that re-survey No.403/12 has an extent of 5 cents of which, the defendant can hold on to only 3.5 cents. 15. This Court finds that the defendant has put up a house and it is shown in the Commissioner's report. Necessarily the 3.5 cents must come within the defendant's house well intact and the balance area in Survey No.403/13 to its east and south measuring a total extent of 1.5 cents has to be delivered back to the plaintiff. This court perused the Commisioner's report wherein the Commissioner says that at the time of his first visit a thatched roof toilet was there in the property to the east of the house, but during his subsequent visit this has been converted into pucca construction. This construction therefore has been made during the pendency of the suit and this Court cannot countenance it. This construction therefore has been made during the pendency of the suit and this Court cannot countenance it. Solution to the dispute has to be found based on the facts established before this Court. 16. Here, one issue still remains. According to the plaintiffs, they are Apollo's purchaser under Ext.A.7 who is the brother of Samuel and he is only name lendor and that the entire property is with them. However, the Village 'A' register gives a different picture. Now this Court finds both the plaintiff as well as Apollo are on the same footing and the defendants claim not under them but under Ext.B.1 mortgage deed, and the entire estate is also ably defended by the defendants in the present suit. Therefore non-impleadment of Rathinapoo may not affect the inter se dispute between the parties hereto. 17. To shorten the space for further litigation and a cumbersome execution proceedings, this Court chose to direct the defendant to apply for surveying the property to identify and carve out 3.5 cents in Sy.No:403/13 that ought to come to them. Since this Court is adequately conscious that to obtain the assistance of the surveyor involves enormous difficulty, this Court required Mrs.Christy Theboral, the learned Additional Government Pleader, who was present in the Court, to instruct the authorities to expedite the process of survey to give a quietess to a litigation which is pending for 33 years now. 18. This Court was informed about the survey and the plan prepared by the official Surveyor. This plan, on perusal has brought greater clarity for concluding these appeals. 19. The plan produced today is received as Ext.C-4 In the plan, the green washed portion represents the 3.5 cents in the possession of the defendants/respondents. Learned counsel for the defendant submitted on instruction that the respondents/defendants would not be entitled to any extent other than 3.5 cents shown as green washed portion in the plaint. The learned counsel then proceed to make a statement that even though it is not indicated in the plan, the defendants had put up a toilet to the south of the green washed portion within Survey No.403/13. She submitted that the respondents undertake to remove the same. The Result: 20. The learned counsel then proceed to make a statement that even though it is not indicated in the plan, the defendants had put up a toilet to the south of the green washed portion within Survey No.403/13. She submitted that the respondents undertake to remove the same. The Result: 20. In conclusion, (i) Both the appeals are allowed and the judgment and decree 23.12.2009 in A.S.Nos.13 and 23 of 2005 on the file of the Subordinate Judge, Kuzhithurai (Camp Court) confirming the judgment and decree dated 25.08.2004 in O.S.No.304 of 1999 and 528 of 1989 on the file of the I Additional District Munsif Court, Kuzhithurai is set aside. The plaintiff's title to the entire suit properties except 3.5 cents under Ext.B1, mortgage deed and shown as green washed portion in Ext.C-4 plan. Ext.C-4 plan is required to be made as part of the decree. (ii) The defendants are directed to remove the structures that lie to the east or south of the green washed portion within a period of 15 days from today. No costs. 21. This Court appreciates the assistance provided by the learned Additional Government Pleader. The learned Additional Government Pleader was only required to inform the revenue officials to expedite the process of survey. But the learned counsel on both sides submitted that the learned Additional Government Pleader indeed has taken it upon herself the responsibility to visit the property at the time when the survey was made, though without the warrant of the Court. They also submitted that the presence of the learned AGP ensured that survey could be done peacefully. Now, this Court treats the learned Additional Government Pleader as a Commissioner appointed by this Court for the efforts she had taken, and both sides required to pay a sum of Rs.20,000/- each to the learned Additional Government Pleader.