Inder Singh and Others vs Mst. Kishno and Others

Capoor and Dua, JJ.—This is a defendant''s regular second appeal against the concurrent judgments and decrees of the two Courts below in favour of the plaintiff who had sued for possession through redemption of agricultural land measuring 68 bighas and 11 biswas kham as described in the plaint. According to the plaintiff''s allegations, this land was originally mortgaged by the ancestors of her husband with the ancestors of defendant No. 1 about 52 years back. About 13 months back, she mortgaged 30 bighas out of this land with defendants Nos. 2 and 3 for Rs. 3,032/-and left this amount with them for being paid to defendant No. 1 and thereby to seek redemption of the entire mortgaged land and then to deliver the rest of the land to her free from all encumbrances. Thereafter, Mukhtiar Singh, defendant No. 2, filed an application for redemption of this land with the Collector which was dismissed on 13th July 1959 on the ground of being barred by time. According to the plaintiff, even if the original mortgage was more than 60 years old, the suit would be within time because of the acknowledgment made by the original mortgagee Wazira in 1964 BK. which seems to be equivalent to gregorian year 1907 or 1908. The present suit was instituted on 25th July 1959 for possession by redemption on payment of Rs. 3,032/-.

The suit was contested by defendant No. 1 on two grounds, namely, bar of limitation and its non-maintainability in the present form. Both the Courts have held that the suit is maintainable in the present form and nothing has been said on second appeal against this conclusion. In regard to the other point the trial Court held that the mortgage was originally created more than 60 years ago but Exhibit P. 13, which is a copy of mutation No. 283, shows that on 11th December 1964 Bk. Wazira, the sole mortgagee, made a report with the village Patwari acknowledging the disputed mortgage. The report is not forthcoming because it is stated to have been destroyed and there is no evidence, one way or the other, of Wazira having signed or thumb-marked this acknowledgment. The Court in these circumstances raised a presumption u/s 114 of the Indian Evidence Act and held that official acts must be deemed to have been properly done and, therefore, Wazira must be deemed to have signed or thumb-marked the report.

On appeal to the Court of the learned District Judge in addition to this ground, a further ground was relied upon for holding (sic) suit to be within limitation. The mortgage had apparently been recorded in a bahi leaf and was unregistered. The amount being more than Rs. 100/- it was argued on the authority of Purusottam Das and Another Vs. S.M. Desouza and Another, that an unregistered mortgage should be deemed to have come into existence after the expiry of 12 years from the date of the entry in the bahi and computing the period of limitation from the expiry of 12 years, the suit must be held to be within limitation under Article 148, Indian Limitation Act (IX of 1908). The other ground on which the trial Court had proceeded to decree the suit was also approved. The appeal was accordingly dismissed with costs.

On second appeal, the learned counsel for the appellant has very strongly argued that the Courts below have erroneously relied on the presumption u/s 114 of the Indian Evidence Act because there is no law under which Wazira either was bound or could be required to sign the report. According to the learned counsel, the common course of natural events, human conduct and public and private business in relation to the facts in this case do not justify such a presumption. He has also argued that Exhibit P. 13 being merely a copy, the presumption underlying section 90 of the Indian Evidence Act cannot be raised and in support of this submission, he has drawn our attention to a number of decisions of the Supreme Court, of the Privy Council and of the Lahore High Court, but since neither the Courts below, nor the learned counsel for the respondents, is seeking to apply the provisions of section 90, it is unnecessary to say anything on this submission.

In regard to the decision in Pursottam Dass''s case the learned counsel has taken us through the entire judgment and has submitted that the ratio of this case does not support the conclusion of the Court below. I am, however, not convinced that the ratio of the reported case has been wrongly relied upon by the Court below. In the reported case, the suit lands belonged to the plaintiffs'' family and the father of plaintiffs Nos. 2, 3 and 4 allowed defendant No. 2 some years earlier to occupy the suit lands by some arrangement and defendant No. 2 allowed her son defendant No. 1 to cultivate the lands because defendant No. 2, being a lady was unable to take care of herself. The plaintiffs, were not aware of the arrangement under which the defendants were let into possession, but it was urged that if the lands were found to be charged with any sum, the plaintiffs were willing to pay the same. The defendants'' case was that between 1927 and 1930, the father of the plaintiffs Nos. 2 to 4 borrowed from time to time various sums of money aggregating to Rs. 1,061/12/- from defendant No. 2 on the security of the suit lands and that the plaintiffs were fully aware of those mortgages and of the possession of the defendants for over 12 years. They further alleged that all the mortgages were invalid and inoperative in law and that plaintiffs Nos. 2 to 4 and their father not having recovered possession of the lands within 12 years, had lost their right to them and the defendants had acquired full title by adverse possession. The two Courts below gave effect to the plea of adverse possession by the defendants and the consequent extinction of title of the plaintiffs, and in the result, dismissed the plaintiff''s suit. On second appeal, it was held that where a person obtained possession under an invalid mortgage and there was nothing to show that at any time he had asserted possession under any claim of absolute right, he acquired on the lapse of 12 years a prescriptive right to the limited interest by way of mortgage. The learned counsel for the appellants has relied on the following observations from the judgment of Jagannadhadas J. who spoke for the Bench:

Th(sic)the mortgage as such may be invalid, the possession itself having been taken on the footing of its being a mortgage, such possession is not in derogation of the absolute title of the owner, but is at least permissive. Therefore though the owner can institute a suit for recovery of possession from the very moment the defendants had entered into possession, he can do so because the defendants possession is permissible and the permission can be revoked at any time on account of the fact that the document under which such permissive possession is taken is ineffective to create any interest in the property which can give him "the right to retain possession. The suit to recover possession in such circumstances is really in the nature of a suit to recover back possession given away under the limited interest by way of mortgage which has been purported to convey and on account of which the defendant has obtained possession. Such a suit for possession is, therefore, in a sense a suit to recover back possession of the limited interest in immovable property under Article 144, Limitation Act. It is only in respect of that limited interest that the possession of the defendants is adverse. It would, therefore, follow that when the mortgagee gets possession under the void mortgage, the mortgagor can within 12 years therefrom recover possession of the property freed from the limited interest but beyond the twelve years not only is the right of the original owner to the limited interest extinguished, but the said limited interest gets transferred to the person in possession.

This passage, in my opinion, instead of helping the appellants seems to go against their submission. This ratio in the light of the entire judgment seems to convey an idea that for the first 12 years there is no mortgage in law and it is on the expiry of 12 years that a vaild mortgage comes into being by virtue of the expiry of the prescriptive period of 12 years. Now if that be so, then obviously the terminus-a quo for the purpose of a suit covered by Article 148 of the Limitation Act of 1908 would start from the expiry of 12 years after the bahi entry. Computing the period in this manner, the suit, it is not disputed, would be within time. Article 148 provides for a suit against a mortgagee to redeem or to recover possession of immovable property mortgaged within a period of 60 years computing it from the time when the right to redemption or recover possession accrues. According to Shri Partap Singh, right to redemption or to recover possession accrued soon after the date of the entry, but, as at present advised, I do not think that the right as contemplated by Article 148 accrued soon after the aforesaid entry. The ratio of the Orissa High Court decision merely suggests that suit for possession as contemplated by Article 144 of the Limitation Act would be competent soon after the delivery of possession, but that is quite clearly different from a suit contemplated by Article 148.

The learned counsel for the appellants has not been able to find any authority taking a contrary view. Though the aspect considered in the Orissa decision seems to be a new one which is not discussed in any other decision brought to our notice, nevertheless, in the absence of a contrary decision, I am unable to hold that the learned District Judge went wrong in law in following the ratio of this decision. If this view is upheld then the appeal must obviously be dismissed.

On the view that I have taken, I do not think it is necessary to refer to the question of acknowledgement founded on Exhibit P. 13. The view on this point taken by the Courts below does not seem to me to be quite correct. The decision in A.L.N. Sathappa Chetti and Others Vs. Thayyanayaki Ammal, cited by Shri Tewari is however not relevant to the point which arises before us.

For the foregoing reasons, this appeal fails and is hereby dismissed but without costs.