JUDGMENT : (M.A. Abdul Hakhim, J.) 1. The appellants are legal heirs of the deceased 1st defendant in the suit. The suit - O.S No.383/1980 was filed before the Munsiff’s Court Neyyattinkara for declaration of title and possession, for redemption of mortgage, recovery of possession, consequential injunction and for fixation of boundary. The relief of fixation of boundary was sought with respect to Plaint A schedule property having an extent of 76 cents as against the 2nd defendant. The relief of redemption of mortgage was initially sought with respect to Plaint B schedule property having an extent of 32 cents and Plaint C schedule property having an extent of 25 cents from the 1st defendant. Later, the relief of redemption of mortgage of E schedule property having an extent of 14 cents from the 1st defendant was also included by way of amendment as per Order dated 06.11.1986 in I.A No.4254/1986. In the said order, in view of the objection raised by the 2nd defendant, the Trial Court observed that the right of the 2nd defendant to contend that the relief of redemption of plaint E schedule is barred by limitation is reserved. Plaint B, C and E properties are parts of the Plaint A schedule property. Plaint D schedule property was only a security property for the mortgage. 2. The plaintiffs are the wife and daughter of Kumara Pillai who created mortgage with respect to Plaint B, C and E schedule properties as per Exts.A2, A3 & B1 respectively which ultimately came in the hands of the 1st defendant as per Exts.A5,A6 & B2. 3. The 1st defendant admitted the execution of mortgage with respect to B, C and E schedule properties and the purchase of mortgage rights by the 1st defendant. He claimed that the value of improvements in A schedule property will come to Rs.10,000/-. He claimed that he has got fixity of tenure over the mortgaged properties under the KLR Act. He claimed that the suit is barred by limitation. Since the 1st defendant raised fixity of tenure under the provisions of KLR Act, the said question was referred to the Land Tribunal, Thiruvananthapuram and the Land Tribunal Thiruvananthapuram as per Order dated 18.10.1984 in O.A No.220/1982, found that the 1st defendant is not tenant entitled to fixity on the plaint schedule property. 4. Since the 1st defendant raised fixity of tenure under the provisions of KLR Act, the said question was referred to the Land Tribunal, Thiruvananthapuram and the Land Tribunal Thiruvananthapuram as per Order dated 18.10.1984 in O.A No.220/1982, found that the 1st defendant is not tenant entitled to fixity on the plaint schedule property. 4. The Trial Court allowed the suit granting Preliminary Decree allowing the plaintiffs to deposit the mortgage price of Rs.900/- ( Rs.300/- + Rs.400/- +Rs.200/- ) in the Court and to redeem Plaint B, C and E schedule properties from the 1st defendant and to recover the said properties from the 1st defendant and to release security over plaint D schedule property; declaring title and possession of the plaintiffs over plaint A schedule property subject to the mortgage liabilities. Consequential injunction and fixation of boundaries etc., were also allowed in favour of the plaintiffs. 5. The 1st defendant filed appeal as A.S.No.27/1999 before the First Appellate Court challenging the judgment and decree of the Trial Court with respect to redemption of mortgage of Plaint C, D and E schedule properties and claiming value of improvements. The 2nd defendant did not challenge the judgment and decree of the Trial Court and hence the fixation of boundaries granted against the 2nd defendant became final. 6. The First Appellate Court allowed the Appeal in part holding that the 1st defendant is entitled to get Rs.1,125/- towards value of the improvements for Plaint B and C schedule properties and ordering the plaintiffs to deposit Rs.1,125/- along with the mortgage price. The judgment and Decree of the Trial Court was confirmed in all other respects. 7. Since the 1st defendant died during the pendency of the appeal before the First Appellate Court, his legal heirs were impleaded as additional appellants 2 to 8. 8. This Second Appeal is filed by the legal heirs of the 1st defendant. This Court admitted the Second Appeal on the following substantial questions of law as per order dated 31.01.2002: 1. Whether the principle that amendment relates back to the date of suit be applied to hold that a barred claim on being incorporated by way of amendment will relate to the date of suit and thereby cure the defect of limitation? 2. Whether the principle that amendment relates back to the date of suit be applied to hold that a barred claim on being incorporated by way of amendment will relate to the date of suit and thereby cure the defect of limitation? 2. Notwithstanding the fact that I.A No.4245/86 was allowed; is it not open to the defendants to raise the plea that the prayer for redemption of plaint ‘E’ scheduled property is barred by limitation in view of the principle laid down by the Honourable Supreme Court in the decision reported in 2001 (6) SCC 163 . Is not the finding that the claim for redemption of plaint ‘E’ scheduled property is not barred by limitation, contrary to law? 3. Is not the judgment and decree of the lower court vitiated for want of proper compliance of the provisions of Order 14 of the C.P. Code, 1908? Did not the lower appellate court act contrary to law in failing to exercise the powers under Order 41 Rule 25 of the C.P Code, 1908? 4. Has not the Land Tribunal and the Courts below gone wrong in interpreting Exthibits A2 and A3 documents? Is not the finding that the defendants are not entitled to fixity of tenure, contrary to law? 9. I heard the learned Counsel for the appellants Sri. Atul Mathews and the learned Counsel for the respondents 2 and 16 Sri.G.S Regunath. 10. The parties are referred according to their status before the Trial Court. 11. The learned counsel for the appellants contended that plaint B, C and E schedule properties are Ottikuzhikanam Properties as defined under Section 2(39A) of the KLR Act, the term ‘tenant’ defined under Section 2(57) of the KLR Act includes Ottikuzhikanamdar as per Sub clause (dd), hence the 1st defendant is entitled to get fixity of tenant. As per Exts. A2, A3 and B1 Mortgage Deeds, the mortgagees are permitted to pay Government tax apart from the mortgage money and hence those documents are to be construed as leases. The finding of the Land Tribunal that the relationship between the parties is that of a debtor-creditor and not that of a landlord-tenant is unsustainable. As per Exts. A2, A3 and B1 Mortgage Deeds, the mortgagees are permitted to pay Government tax apart from the mortgage money and hence those documents are to be construed as leases. The finding of the Land Tribunal that the relationship between the parties is that of a debtor-creditor and not that of a landlord-tenant is unsustainable. The Trial Court referred the question of tenancy under Section 125(3) of KLR Act only with respect to the plaint B and C schedule properties and the question of tenancy raised by the 1st defendant with respect to E schedule was not referred to the Land Tribunal. The Trial Court and the First Appellate Court ought to have referred the question of tenancy of E schedule property to the Land Tribunal for a finding with respect to the same. No issue with respect to the tenancy claim over plaint E schedule was framed by the Trial Court. It is in violation of Order 14 Rule 1 CPC. The First Appellate Court ought to have framed an issue in this regard and refer them for trial to the Trial Court in view of Order 41 Rule 25 CPC. Ext. B1 is the Mortgage Deed with respect to the plaint E schedule property which is dated 18.01.1954. When the suit was filed in the year 1980, no relief was claimed with respect to plaint E schedule property. Plant E's scheduled property was included, and reliefs were incorporated with respect to the same as per IA No.4254/1986, which was allowed by the Trial Court as per Order dated 19.12.1986. As per Article 61 of the Limitation Act, the period prescribed for filing a suit for redemption of mortgage is 30 years from the date, when the right to redeem or to recover possession accrues. Since the reliefs with respect to plaint E schedule property was included by way of amendment after the said period of 30 years, the suit for redemption of mortgage with respect to plaint E schedule property is clearly time barred. The learned counsel cited the decision of this Court in Savithri Kunjamma v. Narayan ( 1989 (2) KLT 628 ) to substantiate the point that mere description of assignment for the purpose of describing the interest is not sufficient to constitute acknowledgment within the meaning of Section 18 of the Limitation Act. The learned counsel cited the decision of this Court in Savithri Kunjamma v. Narayan ( 1989 (2) KLT 628 ) to substantiate the point that mere description of assignment for the purpose of describing the interest is not sufficient to constitute acknowledgment within the meaning of Section 18 of the Limitation Act. The learned counsel cited the decision of this Court in State of Kerala v. Rajan [ 1992(1) KLT 152 ] to substantiate the point that even though in the Memorandum of Appeal the point of limitation is not raised, it can be raised at the hearing of the appeal as the question of limitation is the pure question of law capable of determination on the admitted facts on record. 12. On the other hand, the learned counsel for the respondents 2 and 16 contended that the mortgage deeds namely Exts.A2, A3 and B1 clearly refer the transaction as ‘Otti’ which means that the transaction is a mortgage and not Ottikuzhikanam. The learned counsel cited the Full Bench decision of this Court in Velayudhan Vivekanandan v. Ayyappan Sadasivan ( 1975 KLT 1 ) to substantiate the point that even in the case of Ottikuzhikanam, it is for the Court to find out the dominant and essential purpose of the transaction where elements of mortgage and lease are present. The learned counsel cited the decision of this Court reported in 1978 KLT 31 [Case No.18] that, if the dominant position was the security of money borrowed and not enjoyment of the property, Section 58 of the Transfer of Property Act is attracted thereby by excluding the application of Section 2(39A) of the KLR Act. The learned counsel cited the decision of the Hon’ble Supreme Court in Thomas Antony v. Varkey Varkey [ 2000 (1) SCC 35 ] in which it is held that reference under section 125 (3) of the KLR Act is to be made only when bonafide and legally sustainable plea is taken by a party; that civil court has to consider whether a contention is based on legal foundation; that civil court not obliged to refer every question to the Land Tribunal; and that the Civil Court can consider whether contention is patently fault, malafide or illegal. The learned counsel cited the decision in Kerala State H.W. Co-opoerative Society Ltd. V. Vadakke Madom Bhahmaswom ( 1996 (1) KLT 282 ) to substantiate the point that the civil court need not make a reference under Section 125 (3) of the KLR Act when the question of tenancy reasonably does not arise in the case. The learned counsel contended that since Exts.A2, A3 and B1 do not reveal any tenancy, the question of reference to the Land Tribunal under Section 125(3) of the KLR Act does not arise in the case. The tenancy claim with respect to B and C schedule properties was referred to the Land Tribunal and the Land Tribunal answered the reference, finding that the relationship of the parties is that of debtor-creditor and not that of landlord – tenant. In the light of the said finding, the reference to the Land Tribunal with respect to plaint E schedule property does not arise. Absence of framing issue in this regard is not relevant or material. The learned counsel cited the decision in Parameswaran Thampi v. Podiyan Thomas ( 1984 KLT 397 ) to substantiate the point that a second reference to the Land Tribunal is not contemplated under Section 125(3) of the KLR Act. The learned counsel cited the decision in Ponnammal v. Gomez [ 1991 (1) KLT 901 ] to substantiate the point that the ouster of jurisdiction under Section 125 of the KLR Act is only to the Trial Court and it does not affect the jurisdiction of the Appellate Court to decide the matter when the matter comes up in appeal. Hence, there is no need to make a further reference on the question of tenancy of the plaint E schedule property to the Land Tribunal and it can be considered by the Appellate Court itself. On the question of limitation with respect to the prayer for redemption of the plaint E schedule property, the learned counsel contended that there is no such contention raised by the 1st defendant that the claim is time barred. The amendment to include the prayer of redemption of mortgage of plaint E schedule property was allowed by the Trial Court. On the question of limitation with respect to the prayer for redemption of the plaint E schedule property, the learned counsel contended that there is no such contention raised by the 1st defendant that the claim is time barred. The amendment to include the prayer of redemption of mortgage of plaint E schedule property was allowed by the Trial Court. Thereafter the 1st defendant has no right to contend that the said claim is time-barred as it is a settled law that when an application for amendment of the plaint is allowed, it will relate back to the date of institution of the suit. Even otherwise the 1st defendant derived the mortgage right of plaint E schedule property as per Ext.B2 dated 12.08.1958, in which there is clear acknowledgment of the mortgage and hence the period of 30 years is to be counted from the date of Ext.B2 document. If the period of limitation of 30 years is counted from the date of Ext.B2, the amendment was perfectly within the period of limitation. 13. I have considered the rival contentions. In view of the rival contentions before me, the following questions are to be considered in this R.S.A: 1. Whether the question of tenancy raised by the 1st defendant over plaint E schedule property is liable to be referred to the Land Tribunal under Section 125 (3) of the KLR Act after framing an issue in this regard? 2. Whether the 1st defendant is entitled to get fixity of tenant over the mortgaged properties? 3. Whether the claim for redemption of plaint E schedule property is barred by limitation ? Question No.1 14. The 1st defendant claimed fixity of tenure over plaint B and C schedule properties in his original Written Statement. The Trial Court framed an issue in this regard and referred this question to the Land Tribunal and the Land Tribunal answered the reference by order dated 18.10.1984 holding that the relationship between the parties is that of a debtor and creditor and not that of a land-lord and tenant. It is after this order of the Land Tribunal, the prayer for redemption of mortgage of Plaint E schedule property was included in the Plaint by way of amendment. 15. In the additional Written Statement filed by the 1st defendant, the claim of tenancy over Plaint E schedule property was made. It is after this order of the Land Tribunal, the prayer for redemption of mortgage of Plaint E schedule property was included in the Plaint by way of amendment. 15. In the additional Written Statement filed by the 1st defendant, the claim of tenancy over Plaint E schedule property was made. But no issue in this regard was framed by the Trial Court and hence the Trial Court did not refer the question of tenancy with respect to the Plaint E Schedule property to the Land Tribunal. It is well settled by the decision of the Hon’ble Supreme Court in Thomas Antony (supra) and the decision of this Court in Kerala State H.W Co-operative Society ltd (supra) that reference to the Land Tribunal under Section 125 (3) is not required on a mere claim of tenancy. The Court has to consider whether the claim of tenancy is bonafide and whether there is any prima facie case for tenancy. It is true that the Trial Court did not make any such exercise on the claim of tenancy with respect to plaint E schedule. But it is well settled by the decision of this Court in Govinda Panicker V.Sreedhara Warrier [ 2000 (2) KLT 43 ] and in Ponnammal (Supra) that Section 125(3) of the KLR Act does not oust the jurisdiction of the appellate court to consider the claim of tenancy. The First Appellate Court did not consider the claim of tenancy over plaint E schedule property finding that no specific contention was taken by the 1st defendant claiming tenancy right with respect to plaint E schedule property after amendment of the plaint. The learned counsel for the appellant invited my attention to the additional Written Statement filed by the 1st defendant in which the claim of tenancy over plaint E schedule property was specifically raised. The First Appellate Court should have considered the question of tenancy itself in view of the aforesaid decisions of this Court. In view of the aforesaid decisions, this Court can consider the claim of tenancy raised by the 1st defendant, and there is no need to remand the matter back to the Trial Court to frame an issue in this regard for reference to the Land Tribunal. Hence this question is answered against the appellants. Question No.2 16. In view of the aforesaid decisions, this Court can consider the claim of tenancy raised by the 1st defendant, and there is no need to remand the matter back to the Trial Court to frame an issue in this regard for reference to the Land Tribunal. Hence this question is answered against the appellants. Question No.2 16. Since the learned counsel for the appellant contended that the finding of the Land Tribunal is incorrect with respect to Plaint B & C Schedule properties and claimed tenancy over Plaint E schedule property, claim of tenancy over Plaint C,D & E Schedule properties are considered together. Exts.A2,A3 & B1 documents are similarly worded. They reveal that what is described therein is ‘otti’ means mortgage. Mortgage is a transfer of interest in the land for the purpose of securing payment of debt. On going through Exts.A2,A3 & B1, it is revealed that it is executed for the purpose of creating a mortgage alone and not for creating any lease. It includes only payment of mortgage money. No other consideration is shown. The contention of the learned counsel for the appellant that since those documents permit the mortgagee to pay government taxes, it is to be construed as ottikuzhikanam as defined under Section 2(39A) of the KLR Act. Mortgage under the Transfer of Property Act is specifically excluded from the definition of ‘ottikuzhikanam’ as defined under Section 2(39A) of the KLR Act. Payment of land tax is to the Government by the mortgagee could not be termed as a consideration from the mortgagee to the mortgagor to construe the mortgage as a lease. No additional benefit or enjoyment is granted by the mortgagor to the mortgagee on account of payment of land tax to the Government. I am fortified to take such a view with the decision of this Court in Lucy Greya.C and another V.Gnanadeepam Daleela and others [ 2013(4) KHC 682 ] in which it is specifically held that payment of government tax cannot be treated as other consideration within the meaning of Section 2 (57) of the KLR Act. The Land Tribunal entered a finding that the transaction between the parties is that of debtor & creditor and not landlord & tenant. The said finding of the Land Tribunal is perfectly justified on going through the recitals in Ext.A2 and A3 documents. The Land Tribunal entered a finding that the transaction between the parties is that of debtor & creditor and not landlord & tenant. The said finding of the Land Tribunal is perfectly justified on going through the recitals in Ext.A2 and A3 documents. The recitals in Ext.B1 do not admit a different view. Hence, I hold that the 1st defendant is not entitled to get fixity of tenure over Plaint B, C and E schedule properties. Hence this question is answered against the appellants. Question No.3 17. Mortgage over plaint E schedule property was created as per Ext.B1 document dated 18.01.1954. The suit was filed in the year 1980. The Plaint E schedule property was included in the Plaint and the prayer for redemption of mortgage of the same was included as per Order dated 19.12.1986 in I.A.No.4254/1986 for amendment of the plaint. If the date of filing I.A.No.4254/1986 is taken into consideration, the prayer for redemption of mortgage with respect to E schedule property is clearly time barred as it was beyond the period of 30 years as prescribed under section 61 of Limitation Act. The doctrine of Relation back settled by precedents is that amendment shall relate back to the date of institution of the suit. But in the case on hand, on perusing the Order dated 19.12.1986 in I.A No.4254/1986 passed by the Trial Court, the Trial Court has specifically held that limitation is a mixed question of law and facts and that it will have to be decided in the suit as to whether the suit is barred by limitation after giving opportunity to the parties to adduce evidence. Since the 2nd defendant alone filed objection to the Petition for amendment contending that the claim sought to be included in the amendment is barred by limitation, the Petition for amendment was allowed without prejudice to the right of the 2nd defendant to raise a contention in the suit that the claim of the plaintiff is barred by limitation. The question that arises is whether the 1st defendant is entitled to raise a contention that the said claim is time barred. The 2nd defendant is impleaded in the suit only for the purposes of fixation of boundaries of the Plaint A Schedule property. The 2nd defendant did not have anything to do with the prayer for redemption of mortgage of plaint B, C and E schedule properties. The 2nd defendant is impleaded in the suit only for the purposes of fixation of boundaries of the Plaint A Schedule property. The 2nd defendant did not have anything to do with the prayer for redemption of mortgage of plaint B, C and E schedule properties. The prayer for redemption of mortgage is made only against the 1st defendant. The fact is that the question of limitation of the claim was not considered by the Trial Court finding that it is a mixed question of law and fact. The Trial Court expressed the view that the question of whether the claim is barred by limitation or not is to be decided after giving an opportunity to the parties to adduce evidence. I am of the view that if the question of the limitation with respect to the claim sought to be included by amendment is left open to be decided in the suit, all the parties can raise the plea of limitation irrespective of whether such party had raised objection against the amendment or not. When a new claim is sought to be included in the Plaint through amendment, the Court has to consider whether such claim is barred or not on the basis of the materials available before it. If the Court is unable to consider the question on the basis of the materials available for it, the Court is bound to reserve consideration of such issue after the trial of the suit. If the Court has reserved the issue of whether the amended claim is barred or not for consideration after the trial of the suit, the Court shall not preclude any of the parties before it for the mere reason that he had not raised an objection to the Petition for amendment. In view of this legal proposition, the 1st defendant was also entitled to raise the contention that the claim against Plaint E Schedule property is time barred. The contention of the plaintiff while considering the Petition for amendment was that Ext.B1 mortgage was acknowledged by Ext.B2 document of the year 1958. The Trial Court did not consider whether Ext.B2 is an acknowledgment or not while allowing the Petition for amendment. On this ground also, the 1st defendant is entitled to raise a contention that the amended claim with respect to the plaint E Schedule property is time barred or not, in the suit. The Trial Court did not consider whether Ext.B2 is an acknowledgment or not while allowing the Petition for amendment. On this ground also, the 1st defendant is entitled to raise a contention that the amended claim with respect to the plaint E Schedule property is time barred or not, in the suit. The Trial Court did not consider the question whether Ext.B2 is an acknowledgment or not after the trial. In effect, the question of limitation with respect to the prayer for redemption of mortgage of the plaint E schedule property was not considered by the Trial Court. The order allowing the Petition for amendment does not in any way bar the 1st defendant from raising the question of limitation in the suit as the said question was reserved for consideration later. The finding of the First Appellate Court that the order allowing amendment will relate back to the date of institution of the suit in the present case is illegal and unsustainable. 18. The next is whether Ext.B2 amounts to an acknowledgment of Ext.B1 mortgage. In Ext.B2, Ext.B1 transaction is stated only for the purpose of narrating the circumstances leading to the execution of Ext.B1. It does not in any way admit or acknowledge the liability created as per Ext.B1. It does not amount to an acknowledgment within the meaning of Section 18 of the Limitation Act. This Court followed the decision of the Hon’ble Supreme Court in Thilak Ram v. Nathu and Others ( AIR 1967 SC 935 ) and specifically held in Savithri Kunjamma (supra) that the description in the assignment for the purpose of describing the interest is not sufficient to constitute acknowledgment within the meaning of Section 18 of the Limitation Act. Since Ext.B2 does not amount to acknowledgment, I am of the view that the claim of the plaintiffs for redemption of mortgage of plaint E schedule property is clearly time barred. The judgment and decree passed by the Trial Court is liable to be interfered to the extent to which it allows redemption of mortgage of plaint E schedule property. The substantial questions of law Nos. 1,3,4, and 5 are answered in the negative and the substantial question law No.2 is answered in the affirmative. The substantial question of law Nos. 1 and 2 are answered in favour of the appellant and the substantial question of law Nos. The substantial questions of law Nos. 1,3,4, and 5 are answered in the negative and the substantial question law No.2 is answered in the affirmative. The substantial question of law Nos. 1 and 2 are answered in favour of the appellant and the substantial question of law Nos. 3,4,and 5 are answered in favour of the respondents. 19. Hence, this Second Appeal is allowed in part without costs confirming relief Nos.4,5,6 and 7 granted by the Trial Court and modifying the reliefs Nos.1,2 & 3 granted by the Trial Court in the Preliminary Decree as follows: 1. Plaintiffs are allowed to deposit Rs.700/- (Rs.400/- + Rs.300/-) towards mortgage money and Rs.1,125/- towards the value of improvements before the Court and to redeem B and C schedule properties from the possession of the 1st defendant and to recover possession of plaint B and C schedule properties from the 1st defendant and to release security over D schedule property. 2. The title and possession of the plaintiffs over plaint A Schedule property excluding Plaint E Schedule property is declared. 3. Defendants are restrained from committing waste in plaint A schedule property excluding Plaint E Schedule property.