Binanand Sawase and another vs Thuroo Mahto and others

Jwala Prasad, J.—This appeal arises out of a suit for redemption based upon a mortgage bond, dated the 23rd April 1881. By this deed Harakh Nath Sahi mortgaged his jagirdari interest in village Hitu Tola to Lal Khan, ancestor of Defendants Nos. 1 to 3. The mortgagee took possession of the property and enjoyed the profits thereof in lieu of interest and had to pay annually to the mortgagor what is locally called niksari rent. The mortgage was payable in Magh 1961, corresponding to January 1905. On the 21st June 1888 the Plaintiff purchased the jagirdari interest of the mortgagor in Hitu Tola. His sale certificate is Ex 2, dated the 10th September 1888. He took delivery of possession of the property through Court, but was dispossessed by the mortgagee who had obtained a decree in an ejectment suit brought by him against the Plaintiff. In 1891 the superior landlord of the jagir brought a suit against the tenure-holder, Lal Harakh Nath Sahi, for arrears of rent. In that suit amongst others, he impleaded the Plaintiff as Defendant probably on account of his purchase in execution of the money decree already adverted to. In para. 2 of the plaint of that suit, Ex. P. the Plaintiff stated that the mouzas of Senegutu, Pargana Sonepur belonged as khorposh jagir to the Defendant No. 1 on payment of fixed rent, etc., and the mouzas were held in possession by the Defendants Nos. 2 to 6 and he claimed the arrears of rent due to him from all the Defendants including the Plaintiff in this case. The Defendants did not appear and the Court on the 16th December 1891 passed the following order:-"Defendants absent, Notice proved to have been served. Ex parte decree to the Plaintiff for full claim with costs interest at six per cent. per annum." Decree was prepared, Ex. M 3, in which all the Defendants including the Plaintiff in the present case are mentioned as parties. The direction in the decree was: "It is ordered that the suit be decreed ex parte against Lal Harakh Nath Sahi besides full costs, etc." The sale-certificate Ex. G, dated the 8th May 1893, mentions all the Defendants as judgment-debtors and states that "Tilakdhari Lal purchased at auction sale on the 15th March 1893 the properties of the judgment-debtors as per detail given below under S. 124 of Act I of 1879 along with the right and interest belonging to them, etc." The specification of the properties covered by the sale-certificate is in the following terms. "Details of the rights and interest in the properties belonging to the judgment-debtors which were sold by auction under S. 124 of Act I of 1879; the jagirdari khorposh interest in the entire mauzas of Senegutu, Sardkel, Durgrah & Ulidih belonging to Harahk Nath Sahi, judgment-debtor No. 1."

On the 2nd July 1893, possession Was delivered to the purchaser Tilakdhari of the properties described in the sale-certificate. On the 2nd February 1906 Tilakdhari sold bis interest in the properties by private kewala to the Defendants Nos. 4 and 5. On the, 9th February 1906 the Defendants Nos. 4 and 5 deposited Rs. 1,000 due on the zarpeshgi and the Defendants Nos. 1 to 3, the sons of the mortgagee withdrew the amount. The mortgage was thus redeemed and the Defendants Nos. 4 and 5 were in possession of the property. In Magh 1965 (corresponding to 1907) the Plaintiff tendered the zarpeshgi money to the. Defendants Nos. 1 to 3; but they refused to accept the money stating that it had already been paid off by Defendants Nos. 4 and 5. The Plaintiff therefore deposited the money in Court and commenced his action for redemption of the property in question. The learned Munsif decreed the suit. On appeal the Judicial Commissioner of Ranohi set aside the decision of the Munsif and dismissed the suit. He held that the Plaintiff''s purchase having been unregistered, the superior landlord was entitled under the proviso to S. 125 of Act I of 1879 to treat the whole jagir as the right and title of Lal Harakh Nath Sahi and that the title of the Plaintiff''s father passed to Tilakdhari in his purchase of 1893 in execution of the rent decree obtained by the superior landlord. He further held that the Plaintiff lost his title, if any, to the property in question by reason of the adverse possession on the part of the Defendants for the statutory period. The Plaintiff has, therefore, come to this Court in second appeal, and he disputes the findings of the Court below on both the aforesaid points. His contention is that in 1888 he purchased the right, title and interest of Lal Harakh Nath Sahi, and therefore when Tilakdhari the ancestor of the Defendants purchased the property in 1893 in execution of the rent decree of the superior landlord, Harakh Nath had no interest in the property. Consequently that purchase is of no avail as against the Plaintiff. The jagir in question is of the nature of a khorposh grant resumable upon failure of male issue in the line of the original grantee But under Bengal Act I of 1879 which governed the tenure in question at that time it was saleable in execution of a decree obtained for rent or any other money with the sanction of the Commissioner. But in such a sale only the right, title and interest of the judgment-debtor passes and not the tenure itself. Therefore, if the Plaintiff had already purchased the right, title and interest of Lal Harakh Nath previous to the auction sale in execution of the rent decree at which the Defendants had purchased the property there was nothing left of the interest of Lal Harakh Nath to pass to Tilakdhari. The Plaintiff, however, having purchased the tenure in execution of his money decree was bound to pay the arrears of rent to the superior landlord for which the decree Ex. M 3 was obtained by him and in execution of which Tilakdhari purchased the property. The superior landlord accordingly made the Plaintiff along with others, who had any interest or possession in the property, parties to the rent suit. He gave reason in para. 2 of the plaint which has already been referred to above for making persons, claiming through Lal Harakh Nath, the tenure-holder, parties to the suit. He said that they were in possession of the properties through Lal Harakh Nath, the tenure holder. This is obviously because the name of Harakh Nath continued to be registered with respect to the tenure in question and as being liable to the landlord for the rent. The Plaintiff and other persons referred to in the plaint of 1891 were not probably registered in the landlord''s sherista, and consequently although they had acquired the interest of the jagirdar the landlord brought the suit against the jagirdar by making them parties to the suit thu3 giving them an opportunity to pay the arrears of rent and save the property from being sold in execution of the rent decree. But the Plaintiff naturally stated in the plaint that Lal Harakh Nath, the tenure-holder, being the recorded tenant was still responsible for the rent. The judgment of the Court was passed ex parte against all the Defendants. The decree mentions the names of all the Defendants but directs that the decree be passed against the judgment-debtor Lal Harakh Nath, Defendant No. 1.

Mr. Sultan Ahmed from this argues that the Plaintiff was exonerated from the liability of the decree and no decree was passed against him. The decree does not seem to have been drawn up in accordance with the judgment in specifying that it was passed against the Defendant No. 1 for the judgment does not make such specification; whereas on the other hand, if it was the intention either of the judgment or of the decree to exempt the Plaintiff in this case or the Defendants other than Lal Harakh Nath, it would have been expressly stated there. It may be that the decree was prepared under some misapprehension probably on account of the prominent mention in the plaint of Lal Harakh Nath as the holder of the jagir and as being probably liable. The subsequent proceeding in execution of the decree, however, makes it perfectly clear that the interest not only of Lal Harakh Nath but of all the judgment-debtors including the Plaintiff in this case was sold up (vide sale-certificate and dakhal dehani mentioned above). Here also Mr. Sultan Ahmed contends that in the specification of the properties sold it is shown that only the interest of Harakh Nath was sold and not of all the judgment-debtors. I do not agree with this contention. It has been clearly stated in the sale-certificate that the right, title and interest of all the judgment-debtors was sold by auction. The word is "hakait madiunan" and not "hakiat madiun"; and then in the earlier part of the sale-certificate "madiunan" that is, judgment-debtors in the plural have been mentioned; and though judgment-debtors were stated in the description of parties at the beginning of the sale-certificate, the name of Lal Harakh Nath Only is mentioned. But this is only with a view to describe the property that is, "hakiat jagir khorposh Lal Harakh Nath Sahi, Madiun No.1 That is the descriptive portion of the property which was sold at the auction sale; in other words, the khorposh jagir of Lal Harakh Nath Sahi.

On careful consideration of all these documents in question I am clearly of opinion that the Plaintiff''s interest, if any, was sold at the auction sale in execution of the rent decree and purchased by Tilakdhari. The Courts below were probably (sic) by the decree in this case in stating that it was passed only against the jagirdar. They did not refer to the sale-certificate and dakhal dehani. If their attention had been drawn to these documents they would probably have held that the interest, if any, of the Plaintiff also passed by that sale. Even if the decree was passed only against the jagirdar it was not the decree but the purchase under the sale-certificates that gave title to Tilakdhari who was not a party to the decree. For the first time he comes upon the Scene by virtue of his purchase at the auction sale and he takes his title from the sale-certificate. That sale-certificate, as observed above, showed that he purchased not only the interest of the jagirdar but the interest, if any, of the Plaintiff. The Plaintiff was a party to the decree. He was a party to all the proceedings which led up to the grant of the sale certificate and the dakhal dehani. If this had been discovered during the trial of the case either in the original Court or in the Appellate Court much trouble and cost would have been saved to the parties; perhaps the case would not have come to this Court Whereas we in second appeal are somewhat circumscribed and not required to go into the evidence; it is expected that the Courts below who have to deal with the facts and upon whose appreciation of facts we have to go, should take great care to go through the documents and other evidence in the case so as to leave no loophole for criticism being levelled against the findings of fact or injustice being done to parties. To my mind the documents in question referred to throw the Plaintiff, altogether out of Court, and that probably is the reason why for so many years from 1893 UD to the time when he brought this case, he did not move in the matter and dispute the title acquired by Tilakdhari from his purchase at the auction sale.

On the view that I have taken the appeal should be dismissed, although I am not prepared to endorse the view expressed by the Court below that sale in execution of the rent decree under Act I of 1879 of a jagir tenure would as a matter of course extinguish the title of any person acquired previously, either by private purchase or in execution of a money decree. Both in sale in execution of money decrees and in sale execution of rent decrees the right, title and interest only of the jagirdar in the tenure passes and consequently one who purchases first prevails against subsequent purchasers. The learned Judicial Commissioner dismissed the Plaintiff''s case also upon the ground that his right and title in the property were extinguished by reason of adverse possession for over twelve years held by the Defendants. This view of the learned Judicial Commissioner has been strenuously commented upon by the learned Government Advocate and has, on the other hand, been vehemently supported by Mr. Sen on behalf of the Respondents.

The question raised by learned Counsel on'' both sides is whether there can be any adverse possession against the mortgagor so long as the mortgagee is in possession of the property when the time for redemption of the mortgage has not arrived. In support of their respective contentions learned Counsel have cited authorities. Mr. Sultan Ahmed relies on, amongst others, the cases of Chinto v. Janki [1892] 18 Bom. 51 and Kunwar Sen v. Darbari Lal [1916] 38 All. 411: 34 I.C. 171. Mr. Sen on the other hand relies upon the cases of Umrao Singh v. Mt. Manki [1901] 6 C.W.N. 601, Ammu v. Ramakishna Sastri [1879] 2 Mad. 226 and Puttappa v. Timmaji [1889] 14 Bom. 176. He also refers to the case of Nand Kumar Lal v. Brojo Bhookun. Singh [1867] 4 Wyman''s Rep. 36. This report is not available. I have carefully considered this case and also the observation of Lord Hardwicke in Casborne v. Scarfe [1737] 1 Atk. 603 referred to in Kunwar Sen v. Darbari Lal [1916] 38 All. 411: 34 I.C. 171 and without going into a detailed discussion of the authorities placed before me, I would like briefly to state my views on the subject.

We are considering the case of a mortgagee in possession of property. Now so long as he is in possession his possession is, to some extent, that of a trustee; unlike ordinary lessees he is bound to preserve the right, title and interest of the mortgagor and to prevent any invasion of that right by a stranger. The mortgagor having put the mortgagee in his stead in the possession of the property enjoys immunity and believes that so far as his possession is concerned his interest will be protected by the mortgagee. Therefore if the mortgagee has either by neglect or in collusion allowed any other person to come into possession of the property, there will be, in my opinion, no invasion of the rights of the mortgagor and when the time for redemption arrives he will be entitled to treat the stranger as a trespasser, and the stranger''s right by adverse possession will not commence against the mortgagor unless and until the mortgagor had exercised his right of redemption and had redeemed the property. This is the case of a complete possession where no right of possession is exercised by the mortgagor. There may, however, be cases where the mortgagor and the mortgagee are both in possession of the property in accordance with the arrangements arrived at by them and set forth in the covenant in the bond. The possession of the mortgagee consists in the appropriation of the usufruct of the property and that usufruct may be enjoyed by both mortgagor and mortgagee for the usufruct and the income of the property might far exceed the interest in lieu of which the mortgagee enjoys the possession of the property. In such a case the application of the principle which I have tried to lay down above will also be varied: but the principle will apply to that portion of the usufruct which is supposed to be in possession of the mortgagee. To give a concrete example, I would refer to the facts of the present case where a rent has been reserved to be payable by the mortgagee to the mortgagor. It may be that in some cases the mortgagor may himself be realising from the tenants that portion of the rents and profits which represents the hakajri; but that does not affect the principle, though it may be only a question of what amount of evidence will be necessary to prove adverse possession in a stranger. Therefore I am of opinion that when hakajri or rents and profits are reserved by the mortgage and are payable to the mortgagor there is no reason why the principle of adverse possession should not apply, though in order to take advantage of adverse possession it must satisfy all the conditions required for adverse possession, namely, it must be open, hostile and to the knowledge of the mortgagor. A mere non-payment of the hakajri or forbearance to realise it for any length of time would not create any adverse possession nor a mere payment of the same to a stranger by duress, force or compulsion, unless such payment is made with the knowledge of the mortgagor that it was being paid against his interest. This therefore necessarily leads to the conclusion that in the case of a mortgagee in possession where hakajri is fixed, the circumstances of each case will determine whether there can be any adverse possession or not in a stranger. In the Allahabad case the person claiming by adverse possession had got his name registered in the Revenue Court and that fact alone was said not to constitute adverse possession. In the present case in the attestation proceedings it was held that the Defendants Nos. 3 and 4 were in possession of the property and their names were registered as against the plaintiff. That alone on the view taken by the Allahabad High Court may not be sufficient to create adverse possession in favour of the Defendants Nos. 4 and 5. Now in this case the money became payable and the right to redeem the property did arise and in fact on the 9th February 1906 the defendants deposited the money due on the zarpeshgi and redeemed the property on the 17th February 1906. They are also said to have realised the hakajri due to them, and these facts, the Courts below have held, constituted adverse possession in favour of the Defendants Nbs.4 and 5 and satisfied all the requirements or conditions of a complete and valid adverse possession.

There is a good deal of force in the view taken by the learned Judicial Commissioner. I however, find that the question of adverse possession becomes much stronger in the Defendants Nos. 4 and 5 by reason of the result of the litigation in the rent suit in 1893 when the possession of the property was delivered through Court to Tilakdhari in the presence of the Plaintiff. This fact has not been noticed by either of the Courts below nor is it urged in the arguments at the Bar. Tilakdhari, the plaintiff says, had no right to be in possession and if he got possession in 1893, he was a trespasser from that moment; that possession was delivered in a case where the plaintiff was a party and consequently it was open and hostile.

Taking all these circumstances into consideration I would, in this case hold that the Plaintiff lost his title, if any, by adverse possession. Therefore I would dismiss the appeal with costs.

Ross, J.

I agree.