1. The appellant is defendant 4. Respondents 1 and 2 are plaintiffs. Respondent 3 is the first defendant, since deceased represented by his legal representatives. Respondents 4, 5 and 8 are respectively defendants 2, 3 and 5. The suit out of which this second appeal arises was filed in the year 1952 for redemption of Item 1 of the plaint schedule property which is Survey No. 45 of Kambalalu village, Tumkur taluk. It is unfortunate that even after all these years the litigation has not come to an end. According to the case of the plaintiff, the suit property was granted to one Tyagaraj and another land Survey No. 36 of the same village was granted to the father of the fourth defendant, both the grants being made by the Government. Under Ex. P-5 dated 24-4-1931 Tyagaraj sold Survey No. 45 to one Viswanath Mudaliar, who in turn sold it to Monterio under Ex. P-4 dated 4-1-1940. Monterio sold it to second defendant under Ex. P-3 dated 30-9-1946 and the second defendant sold it to the plaintiffs under Exs. P-1 and P-2 both dated 1-10-1948. Under Ex. P-8 dated 22-1-1949 the 2nd defendant mortgaged the suit property in favour of the first defendant under a usufructuary mortgage. Defendant 3 claims to be a tenant of defendant 2. Sixth defendant is alleged to have purchased the other properties which formed the subject-matter of the mortgage under Ex. P-8 and has remained ex parte. Defendant 4 is the contesting defendant. He admitted that Survey No. 45 was granted to Tyagaraj and Survey No. 36 was granted to his father in the year 1925. But he pleaded that since Survey No. 45 was near other properties belonging to the father of the fourth defendant and since Survey No. 36 was near other properties belonging to Tyagaraj, they exchanged the said two lands; that Tyagaraj took possession and was in enjoyment of Survey No. 36 and that the father of the 4th defendant took possession and was in enjoyment of Survey No. 45 and after his death, the 4th defendant has been in possession and enjoyment of the same. He pleaded that he has established his title by adverse possession. Admittedly, there is no document evidencing the above said exchange of the two properties. According to defendant 4 Tyagaraj sold Survey No. 36 under Ex. P-5 and it is Survey No. 36 which formed the subject-matter of the sale deeds Exs. P-4, P-3 as well as Exs. P-l and P-2 and what is purchased by the plaintiff is Survey No. 36 and not the suit property. Defendant 5 is stated to be colluding with defendant 4 in resisting the claim of the plaintiffs.
2. Six issues were framed on 2-6-1953. Thereafter defendants 4 and 5 were impleaded. After their written statements were filed additional issues were framed on 6-8-54 which relate to the plea of adverse possession raised by the fourth defendant. The plaint was thereafter amended with regard to the relief in respect of possession on 2-1-1958. Thereafter fourth defendant filed his additional written statement. Additional issues were framed on 17-2-1958. The evidence of both sides were recorded and the trial Court decreed the suit on 21-11-1958. The fourth defendant appealed to the Court of the Civil Judge, Tumkur in R. A. No. 17 of 1959. Since no finding had been given regarding possession, the appeal was allowed and the suit was remanded to the trial Court for fresh disposal after giving a finding on the question of possession on the basis of the evidence already recorded. After remand, the trial Court decreed the suit on 31-8-1965. The fourth defendant again appealed to the Court of the District Judge, Tumkur in R. A. No. 102 of 1967 and the lower appellate Court dismissed it on 9-2-1968. Thereafter the present second appeal has been filed by the fourth defendant.
3. The first contention urged by Sri B. Ramachandra Rao, learned counsel appearing on behalf of the appellant, is that the suit for redemption is not maintainable in view of the allegations in the plaint to the effect that the mortgage had already been redeemed by the sixth defendant. The lower appellate Court held on a consideration of the recitals in Ex. P-8 that the mortgage has not been redeemed by the sixth defendant. But it is contended by Mr. Ramachandra Rao that on the basis of the plaint allegations themselves the suit does not He. Under Section 60 of the Transfer of Property Act the mortgagor has a right, while asking for redemption, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee (b) to deliver possession of the mortgaged property to the mortgagor where the mortgagee is in possession of the mortgaged property and (c) to get re-transfer of the mortgaged property at the cost of the mortgagor and to have a registered acknowledgment in writing to the effect that the right of the mortgagee has been extinguished. It has been held in : 2SCR1061 (K. Manikchand v. Elias Saleh Mohamed Sait) that even if one of those three rights is claimed, it is a suit for redemption under Section 60 of the Transfer of Property Act. Hence merely because there is a statement in the plaint to the effect that the sixth defendant has redeemed the mortgage, the suit does not cease to be one for redemption under Section 60 of the Transfer of Property Act. Hence this contention has to be rejected. It was next contended that no relief has been asked against defendants 4, 5 and 6. But an amended plaint has been filed in the trial Court after impleading the additional defendants though the suit was originally filed against defendants 1 to 3 only. Hence, this contention also fails.
4. The fourth defendant filed an application I. A. No. XI for amendment of his written statement. This application was dismissed by the trial Court. The fourth defendant filed a revision petition C. R. P. No. 368/1962, which was dismissed at the stage of admission with the observation that it is open to the petitioner to take up the contention in the appellate Court if an appeal becomes necessary. In the judgment of the lower appellate Court there is no mention of any grievance made out by the 4th defendant, who was the appellant before it, with regard to dismissal of I. A. No. XI although a ground appears to have been taken in the Memorandum of appeal filed in the lower appellate Court. It is urged by Mr. Ramachandra Rao, that this contention was urged before the lower appellate Court but has not been considered by it. The reason given by the trial Court for dismissing I. A. XI is firstly, that it is belated and secondly, that the plea sought to be raised by the amendment was a new and totally different and inconsistent case. The fourth defendant filed his written statement on 15-2-1954 and his additional written statement was filed on 16-1-1958 in the trial Court. The plea taken by him was that he was in possession of the suit property in his own right and that he has established his title to the suit property by adverse possession. Issues were framed on the basis of these pleas and parties adduced evidence with regard to the same. The suit was decreed by the trial Court and on appeal by the fourth defendant it was remanded to the trial Court. It is after the remand that the fourth defendant filed I. A. No. XI. The suit was remanded by the lower appellate Court for purposes of giving a finding on the question of possession on the evidence already recorded. If I. A. No. XI was allowed, and the written statement amended, it would have been necessary to frame new issues. The correctness of the finding of the trial Court that the application is belated cannot be questioned. The plea sought to be raised by the amendment was that the 4th defendant was an unnecessary party and the question of paramount title cannot be decided in this suit. This plea ought to have been taken at the earliest stage if the fourth defendant felt embarrassed with the misjoinder of causes of action. But it is only after both the parties adduced evidence that the fourth defendant sought to raise this new plea in order to see that the plaintiff is driven to a separate suit against the fourth defendant even if he succeeds in the redemption suit. The trial Court was therefore justified in rejecting the prayer of the fourth defendant on the ground that he sought at a very late stage, to set up a totally different and inconsistent case.
5. It is next contended by Mr. Ramachandra Rao that the question of paramount title should not have been gone into in the present suit since it is a suit for redemption. In (1923) 1 Mys LJ 38 (Krishnappa v. Ramalakshmamma), it has been held that one of the exceptions to the rule that the question of a title paramount to that of the mortgagor or adverse to him cannot be investigated in a suit based on the mortgage is a case where the usufructuary mortgagee seeks to recover possession from a party who is in possession or who is interested in objecting to the delivery of possession and that such a person would be a necessary party. In (1938) 16 Mys LJ 54 (Dodda Puttegowda v. Linge Gowda), it has been held that a plaintiff mortgagee cannot be allowed to frame his suit in such a way as to involve the question of paramount title set up by a third party, who is in no way connected with the mortgage. But the rule is one of convenience and the matter is more or less one of discretion with the Court, so long as no question of jurisdiction is involved, It has been observed that Order XXXIV, Rule 1, of the Code of Civil Procedure does not contain any express prohibition regarding the addition of a party to the suit claiming an adverse title. It has further been held that the conjoint effect of Rule 9, of Order I and Rules, 1, 3, 4 and 6 of Order II of the Code of Civil Procedure appears to be that the Court has ample discretion in permitting a party to joint more causes of action than one in one suit so long as no inconvenience is occasioned thereby and so long as the jurisdiction of the Court is not affected. Parties who set up adverse title against the plaintiff were held to be necessary parties. It was further observed that the effect of denying relief against persons who set up adverse title to the hypothecated property on a purely technical ground would be to give the plaintiff a decree which is ineffectual and which will necessarily involve further litigation. In (1951) 29 Mys LJ 5 (Fakruddin Khan v. Abdul Kareem) it has been held by Venkataramana Rao, C. J., that though ordinarily the question of paramount title is not gone into in a mortgage suit, the rule is not rigid and there can be cases in which such a question has to be gone into and the Court can try such an issue if it thinks it necessary in the interests of all the parties that such a trial should take place. In : AIR1936Mad338 (Veeraraghavalu Naidu v. Suryanarayana Panda) it has been held that ordinarily the title of persons who set up a claim adverse to the mortgagor and mortgagee should not be investigated in a suit upon a mortgage, but that it is not an inflexible or invariable rule, that such joinder does not affect the jurisdiction of the Court and that in each case the Court can exercise its discretion after considering whether it will lead to inconvenience or confusion in trying the issue as to paramount title in the same suit. It was also observed that when such a question has been gone into by the trial Court the appellate Court should not reverse the decision of the trial Court on that ground alone unless the decision has affected the jurisdiction of the Court or caused a prejudice to the parties by the trial on the merits. In the present case, it has not been shown how the fourth defendant has been prejudicial by the trial of the issue raised by him. He has been afforded sufficient opportunity and has adduced the evidence in support of his plea. It is only after the suit was disposed of and the issue was held against him that he thought of raising the plea that he was an unnecessary party to the suit and that his title should not be gone into. The decision in AIR 1937 Mad 176 (Kazi Chettiar v. V. Ramasami Chettiar, Firm) related to a claim of self-acquisition by a member of a joint Hindu family. It was held that such a claim cannot be said to be a claim by a stranger asserting paramount title. Hence it does not apply to the facts of the present case. In : AIR1937All251 (Bisheshar Dayal v. Jafri Begum) it was held that there is nothing in Order 34, Rule 1 of the Code of Civil Procedure or any other provision of the same Code which forbids a mortgagee from impleading a person who claims a paramount title to the mortgaged property. It was further observed that if the mortgagee is prevented from impleading a person who impugns his title as a mortgagee it will lead to unnecessary multiplication of suits. It was further held that all objections on the ground of nonjoinder or misjoinder of parties must be taken at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, and that any such objection not so taken shall be deemed to have been waived. On the facts of the present case also the fourth defendant should be deemed to have waived the objection to the frame of the suit.
In AIR 1942 Nag 60 (Laxmanrao Prabhakar Andhare v. Madho Prasad) it has been held that a rule that a person setting up a paramount title shall not be impleaded in a mortgage suit is not an absolute one and that questions of title may be investigated in a mortgage suit if it is necessary to give complete relief to the plaintiff or to secure to him, as a result of the decree in the mortgage suit, a quiet and unobstructed possession. It was further held that when a person claiming paramount title is in possession of the mortgaged property it is convenient to make him a party and to decide the rights of the parties inter se. In (Aminchand v. Jugal Kishore). It has been held that in a suit for redemption where the adverse possession set up by one of the defendants does not extend to a period before the date of the mortgage, the paramount title set up by him should be determined in the suit and the mortgagor should not be made to litigate the same matter over again. In : AIR1955All4 (Satwati v. Kali Shanker). A Full Bench of the Allahabad High Court held that if in a mortgage suit defendants set up paramount title and an issue is framed as regards their rights for decision on the merits and the issue is decided, it cannot be said that the Court either went beyond its jurisdiction or did anything which was so improper or illegal that the Court of appeal must even in the absence of any prejudice interfere and that the rule is more a rule of convenience and prudence than a rule affecting the jurisdiction of the Court. In : AIR1958Pat110 (Singesar Mahto v. Munari) it has been held that although in a mortgage suit, the issue with regard to paramount title is not a necessary issue it is not an absolute principle and where the leaving of such an issue undetermined would lead to inconvenience or hardship, it is proper that it should be tried in a mortgage suit. It was also held that if a defendant in a mortgage suit sets up a paramount title and without objection goes to trial upon that issue, neither party can afterwards say that the issue was irrelevant. In : AIR1970AP153 (R. Veeraswamy v. R. Jangammayya) the position of law on the question whether the persons claiming paramount title independently but not through the mortgagor or mortgagee can be called necessary or proper parties to a suit for the redemption of mortgage has been summarised as follows:--
'10. From the aforesaid discussion, the following principles emerge:
(1) The provisions of Order 1, Rule 10 (2), Civil P. C., as held by the Supreme Court in Razia Begum's case, : 1SCR1111 , should be construed very liberally and all persons who are found to have direct interest in the mortgaged properties must be held to be proper, though not necessary parties for a complete and effective adjudication of the rights of the parties.
(2) The objection of the. Legislature in making Rule 1 to Order 34. Civil P. p. is to define the scope of a mortgage suit, pure and simple.
(3) The provisions of Order 34, Rule 1, Civil P. C. are subject to the provisions of Order 1, Rule 10 (2), but the provisions of Order 1, Rule 10 (2) are not controlled by Order I. Rule 3, Civil P. C.
(4) The question as to who are all the necessary parties to be impleaded as party defendants in a suit on mortgage is not one of jurisdiction but at the most one of misjoinder or nonjoinder of parties.
(5) Where a suit for redemption, foreclosure or sale of mortgaged property is brought by the respective parties to the mortgage, all persons interested in the equity of redemption and all those who claim right and interest through the mortgagee should ordinarily be necessary parties and the persons who claim adverse title paramount in some or all of the mortgage properties but not through the mortgagor or mortgagee, need not be impleaded as parties normally to such a suit.
(6) But, the aforesaid rule is not inflexible or absolute and the Court, in each case, has to see whether such a course will lead to inconvenience or confusion and exercise its discretion judiciously and properly.
(7) In certain cases, where the court thinks it just, proper and necessary in the interests of all parties to adjudicate on the questions relating to paramount title, it is not only proper but even desirable to implead such parties and avoid multiplicity of litigation.
(8) Where it is alleged that the person claiming adversely or by title paramount, is a benamidar of the mortgagee, or is claiming to be in possession and enjoyment of all or some of the mortgaged properties, those who are likely to resist the decree-holder in case the decree is passed in terms of the plaint must be held to be proper, though not necessary, parties to such a suit on mortgage.
(9) Where the Court, on a consideration of the facts and circumstances of each case, is of the opinion that it would be just and convenient and desirable to decide the title of the persons who set up a paramount title, then those persons must be impleaded as party defendants, and in the interests of all parties, the question of title also should be adjudicated upon after framing appropriate and proper issues and giving opportunity to all the parties concerned.'
The person claiming to be in possession of the mortgaged property and who claims adverse title has been held to be a proper though not necessary party to such a suit. The lower Appellate Court has relied on a decision in : AIR1961Pat28 (Aneshwar Prasad v. Misri Lall) wherein, it has been held that where the defendants were trespassers in possession of the mortgaged properties without any lawful title, the decree for redemption obtained by the plaintiff would become infructuous and that in such a case it is desirable that such defendants should be impleaded as parties to the suit. It was further held that if a party on being impleaded does not object he cannot, after being cast in the suit, change front and complain of the error in impleading him. It was further held that if the defendants did not raise any objection to their being impleaded at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, they must tie deemed to have waived it and such a plea cannot be entertained in appeal.
6. Mr. Ramachandra Rao, however, relied on the decision in AIR 1941 Nag 133 (Shakuntalabai v. Roshanlal Malloram Agarwal). That was a revision petition under Section 115 of the Code of Civil Procedure against the order of the trial Court holding that the 2nd defendant in that case was a necessary party to the suit. She pleaded that her husband was separated from the mortgagor at all relevant times but that the property in suit was her husband's exclusive property in which the mortgagor has no right or authority to mortgage. It was held that she was an unnecessary party to a suit for redemption. The decisions relied on on behalf of the plaintiff in that case wherein the questions of paramount title were decided were distinguished on the ground that the defendants in those cases desired to fight out the question of the mortgage and were therefore necessary parties. It was also observed that paramount title may be investigated in such a suit if it is necessary to give complete relief to the plaintiff or to secure to him, as a result of the decree in the mortgage suit a quiet and unobstructed possession. It was further held that if a person is not interested in the equity of redemption it is not necessary to go into those other matters in order to give the plaintiff the relief which he claims, namely a right to enforce his security against those interested in the equity or redemption. It was also observed that when all parties desire this to be done, or when the person claiming a paramount title also pleads to the mortgage and claims a right to contest the mortgage it is open to the Court to decide on such issue. But the second defendant in that suit claimed a paramount title and claimed to be discharged. It was held that in these circumstances, she was bound to be discharged. It was also observed that the question of impleading parties and persons is fundamental and goes to the very root of jurisdiction. But that observation appears to have been made with regard to jurisdiction of the High Court under Section 115 of the Code of Civil Procedure. In any case, this is contrary to the decisions referred to above which lay down that the question of impleading the person claiming paramount title in a mortgage suit does not affect the jurisdiction of the Court or render the decision illegal.
7. Mr. Ramachandra Rao next relied on a decision in Padmanabha v. Aivappan Pillai, AIR 1951 Tray-Co 133, in which it is held that in a suit to enforce a mortgage, ordinarily the necessary parties are those interested in the properties primarily, viz., the mortgagors and their successors in interest and that persons claiming title independently of the mortgagors are ordinarily not necessary or even proper parties to a mortgage suit. In that case, the plaintiff himself raised the objection that defendants 20 and 21 were unnecessary parties to the suit. Then it was held that it would be improper to go into the question of paramount title since it was considered to be neither just nor convenient. The portions of the judgment of the court below relating to title paramount were deleted and the question was left open. It is apparent from the observations made in the judgment in that case that it was not laid down as an inflexible rule that the question of paramount title cannot be gone into in a mortgage suit. The observations in AIR 1941 Nag 133 cited by the learned single Judge also show that under certain circumstances the question of paramount title can be gone into in a suit on mortgage, for example, when all the parties desire it. This also shows that even according to the learned Judge it is not a matter going to the root of jurisdiction of the Court to try the issue of paramount title in a mortgage suit. The nine principles stated in : AIR1970AP153 , represent, in my opinion, the correct statement of the position of law. I may also add that under Order 1, Rule 13 of the Code of Civil Procedure, unless the objection with regard to misjoinder has been taken at the earliest opportunity and, at or before settlement of issues, the party shall be deemed to have waived it. Similarly if the objection with regard to misjoinder of causes of action has not been taken at the earliest opportunity, jt shall be deemed to have been waived as provided under Order 2, Rule 7 of the Code of Civil Procedure.
8. In the present case no such objections were taken by the 4th defendant. On the other hand, he wanted the issue as to his title to be tried and also adduced evidence in support of the same. It is only after the suit was decreed against him and it was remanded in appeal that he attempted to amend his written statement by raising objections as to misjoinder of parties and causes of action. From the decisions referred to above, it is clear that the rule that the question of paramount title should not be tried in a, suit on a mortgage is not an inflexible rule and if the Court finds that it is necessary to try such an issue in order to give complete relief to the plaintiff, in case he succeeds in a suit for redemption, it would be just and proper for the Court to decide that question also. In the present case, the 4th defendant claims to be in adverse possession of the mortgage property. Hence, it is a fit case in which the title of the 4th defendant should also be decided in this suit itself. Hence. I do not find any good grounds to interfere with the finding of the lower appellate Court in this regard.
9. It is next urged by Mr. Ramachandra Rao that the finding of the lower appellate Court that the 4th defendant has failed to establish his possession of the suit property is vitiated since it has relied on inadmissible evidence viz., Exhibits P-6, P-7 and P-9. The lower appellate Court has considered the recitals as to boundaries of the lands in these documents. Exhibit P-9 is a document executed by defendant 2 in favour of defendant 1. Hence, it would be admissible in evidence being a document inter parts, as has been held in Harihar Prasad Singh v. Deonarain Prasad AIR 1956 SC 305. Mr. Ramachandra Rao has relied on a decision of this Court in Kalappa Shiddappa Uppar v. Bhima Govind Uppar, AIR 1961 Mys 160, in which it has been held that in a suit in which the plaintiff claims title to a land, the recitals of the boundary of another land in a document between him and a third party, which describes him as the owner of the suit land, is not admissible in evidence. Exhibit P-6 is the copy of a mortgage deed executed by the 2nd defendant in favour of a stranger. Exhibit P-7 is a Gutta deed executed by defendant 2 in favour of a stranger. It is contended by Mr. Ramachandra Rao that since these two documents are not inter parts they are not admissible in evidence under Sections 11 and 13 of the Evidence Act. In the above said decision Das Gupta, C. J. considered the decision in Rangayyan v. Innasimuthu Mudali, AIR 1956 Mad 226, in which it has been held that in case where the recital is contained in a document between a party and a stranger, the recital is relevant against a party as an admission but is not admissible in his favour, unless the fact recited is deposed to in court by the executant of the document, in which case the recital will become admissible under Section 157 of the Evidence Act to corroborate the evidence of the executant. This principle appears to have been approved. But in that case it was held to be of no help to the plaintiff since both the documents in that case were executed by strangers in favour of the plaintiff.
10. Mr. srinivasan, on the other hand, contended that since Exhibits P-6 and P-7 are documents between a party to the suit and a stranger, the recitals contained in these documents are admissible in evidence as admissions made by the executant viz., 2nd defendant. But the plaintiff claims his title through the 2nd defendant. Hence, the recitals in those two documents cannot be considered to be admissions made against the interest of the plaintiff in the suit. Hence, the contentions of Mr. Ramachandra Rao that these two documents are inadmissible in evidence has to be upheld. It is urged by Mr. Ramachandra Rao that since the finding with regard to the adverse possession is based, though partly, on inadmissible evidence it is vitiated. But Mr. Srinivasan contended that the finding of the lower appellate Court is justified in view of the other evidence in the case even if Exhibits P-6 and P-7 are ignored. But such a contention was rejected by this Court in the above decision relying upon the decision in Dhirajlal Girdharilal v. Commr. of Income-tax, Bombay : 26ITR736(SC) . In that case it is held that when a Court of fact, whose decision on a question of fact is final, arrives at a decision of fact by considering material which is irrelevant to the enquiry, or by considering material which is partly relevant and partly irrelevant, or bases its decision partly on conjectures, surmises and suspicions and partly on evidence, then in such a situation clearly an issue of law arises; and that in such a case, it is well established that when a court of fact acts on material partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the Court was affected by the irrelevant material used by it in arriving at its finding. Such a finding is vitiated because of the use of inadmissible material giving rise to an issue of law.
11. Mr. Srinivasan contended that the documents relied on behalf of the 4th defendant viz., Exhibits D-1, D-6 and D-7 are documents between strangers and therefore not admissible in evidence. This contention has to be upheld. The finding of the lower appellate Court on the issue of adverse possession must be held to be therefore vitiated since it has relied on inadmissible evidence.
12. The findings of the lower appellate Court on the additional Issue No. 2 framed on 6-8-54 and its finding with regard to the additional issue No. 4 framed on 17-2-58 are therefore set aside. The lower appellate Court is directed to give fresh findings on the abovesaid issues viz., those relating to the adverse possession claimed by the 4th defendant and question of possession of the plaintiffs within 12 years prior to the suit, after affording the parties opportunity of being heard and submit its findings within three months from today. The records of the lower Court shall be despatched to the lower appellate Court within ten days. Parties are directed to appear before the lower appellate Court at 11 a.m., either in person or through counsel, on 1st of August, 1974, which would be the first date of hearing in the lower appellate Court. There is no necessity for the lower appellate Court to issue fresh notices to the parties. It is open to the lower appellate Court to adjourn the hearing to such further date or dates as it thinks fit. It is to be noted that the documents which had been returned to the plaintiffs have been filed with a memo in this Court by Mr. Srinivasan.
13. Order accordingly.