Dubraj Mahto and Others vs Lalji Sahai

Das, J.—The learned Judicial Commissioner has decided in accordance with the Madras view because in his opinion the order of remand suggested that the Madras view should be accepted. I have considered the matter carefully; and in my opinion, we ought to follow the view which has throughout been accepted in Calcutta, in Bombay and in many cases in Allahabad. The point is put very clearly in the judgment of Macleod, C.J., in Tarabai Ramrao Patankar Vs. Dattaram Govindbhai Gujar, . He held in effect that in the case of possessory mortgage where possession has been delivered to the mortgagee, a trespasser obtaining possession may hold adversely to the mortgagee but not to the mortgagor. In my opinion, the conclusion at which the learned Chief Justice has arrived, is founded on principle and is covered by authorities.

It was contended that the Calcutta High Court took a different view in Gobind Nath Shaha v. Surja Kanta Lahiri [1899] 26 Cal. 460. In that case the land in dispute together with other lands were let out in patni and darputni by the predecessor-in-interest of the plaintiffs. During the continuance of the said lease the land in dispute was taken possession of and held adversely by the defendants or their predecessor. The putni and darputni were relinquished by the putnidar and darputnidar in favour of the plaintiffs on 29th June 1891, and they on 28th June 1893 brought a suit for recovery of possession of the disputed land from the defendants.

The defence was that the suit was harred by limitation. It was held that as there was a relin-quishment by the dispossessed putnidar and darputnidar in favour of the plaintiffs, the plaintiffs claimed title through the putnidar and the darputnidar and that as the claim of the putnidar and darputnidar was bound to fail on the terms of Article 144, Lim. Act, so the claim of the plaintiffs must fail. The attention of the learned Judges was drawn to the decision in Chinto v. Janki [1894] 18 Bom. 51. In dealing with that case, their Lordships pointed out as follows:

The case of Chinto v. Janki [1894] 18 Bom. 51 was one of a mortgagor suing for redemption. The plea of limitation was there urged by a person who had taken adverse possession as against the mortgages whilst the mortgaged property was in the possession of the mortgagee; and it was held that such adverse possession could not affect the right of the mortgagor to redeem, he not claiming through the mortgagee.

So it is obvious that the ground of the decision in Gobind Nath Shah Chowdhury v. Surja Kanta Lahiri [1899] 26 Cal. 460 is that the plaintiffs were claiming through the dispossessed putnidar and darputnidar. In my opinion the view taken in the Bombay case to which I have just referred ought to be followed by us.

I would therefore allow the appeal, set aside the judgment and the decree passed by the Court below and give the plaintiffs a decree in terms of prayer (a) in the plaint. They will be entitled to their costs thoroughout.

James, J.

I agree.