1. This is a Second Appeal by the legal representatives of the first defendant who was the first respondent in the lower court. The suit is for redemption of a mortgage evidenced by Ext. B which is in favour of the first defendant. It is common ground that plaint items 1 to 3 alone are covered by this document. Plaintiff has brought the present suit as the donee under the mortgagor. There was no dispute about his right to redeem items ) to 3. But the right to redeem items 4 and 5 claimed by the plaintiff was denied by the defendant-mortgagee.
Such a right was advanced by the plaintiff on the basis that these two items which were obtained on puduval registry by the first defendant have to be treated as accretions to the mortgage holding. The defendant contended that he got registry of these items in his own right and independent of his position as mortgagee of items 1 to 3. This contention of the first defendant was upheld by the trial court in respect of items 4 and 5. The lower appellate court agreed with that finding only in respect of item 5.
Thus the finding in respect of item 5 is concurrent and is against the plaintiff. Regarding item 4, the lower court differed from the trial court's finding and held that it is an accretion to the mortgage holding. The correctness of this finding is challenged in this Second Appeal. The decision on the question of value of improvements has also been, challenged in the Second Appeal.
2. Since item 4 is a Puthuval registry In the name of the 1st defendant the normal presumption, is that he is the owner o this property. Plaintiff who claims that this item is an accretion to the mortgage holding has to make out the case by clear and convincing evidence. A perusal of the plaint shows that it does not contain even the necessary averment in support of a case of accretion. It is not alleged that item 4 lies within the boundaries of items 1 to 4 mortgaged under Ext. B,
The mortgage deed while describing the boundaries of items I to 3 refers to adjoining properties as Puthuval lands. But it is significant to note that the mortgagor had not stated that such Puthu-vals were in his possession. Item 4 is one of the -items referred to as Puthuvals. If the mortgagor has possession of this property he would certainly have referred to this property as Puthuval land in his possession. There would also have been some indication that this property was also given possession of to the mortgagee.
There is no reliable evidence to show that it was because of anv special advantage derived by 1st defendant by virtue of his possession of the mortgaged property that he was able to get registry of item 4. The evidence on record is to the effectthat properties adjoining the mortgage property were in the possession of the 1st defendant also just as the mortgagor and even strangers had possession or properties similarly situated. Thus it is equally possible that the first defendant was able to get rightof item 4 on the, strength of the other properties in the possession of himself and his Tarawad.
Plaintiff had advanced a case that in the gift deed executed in his favour by the mortgagor the donee was directed to get right of items 4 and 5. But the gift deed itself has not been produced. Plaintiff's brother examined as P. W. 2 has admitted that there is no mention of item 4 in that gift deed. These facts and circumstances are sufficient to show that the plaintiff had not made out his case of accretion in respect of item 4 also. The appeal hastherefore to be allowed in respect of this item.
Since the value of improvements to be paid in respect of the property to be surrendered, has to be finally assessed at the time of effecting delivery as per the provisions of Act X of 1956, thatquestion is left open for the present.
3. In the result, subject to the above observations regarding the question of improvements, this Second Appeal is allowed in respect of plaint item 4 and to that extent the decree of the lower appellate court is set aside and the trial court's decree is restored. To the extent of the value of item 4, the appellants will get their costs of this Second Appeal.