Ishar and Bhagta vs Smt. Rao etc.

D.B. Lal, J.—This second appeal by Ishar and Bhagta has been directed against the judgment and decree of the learned Additional District Judge, Kangra, reversing on appeal the decision of the Subordinate Judge, Una whereby a suit filed by Dalip Singh and others for possession was dismissed. The dispute related to 1 kanal and 12 marlas of land comprised in Khasra numbers described in the jamabandi for the year 1956-57 situate in village Dehlan of Tehsil Una. The Plaintiffs Dalip and others filed a suit for possession with the allegations that their ancestor Mohan had mortgaged the disputed land along with some other area in 1913-14 to Bhupa and Sidhu. Subsequently in the year 1920 Mohan again mortgaged the said land to Ram Rakha and Hukma predecessor-in-title of the Defendants. The two mortgagees Ram Rakha and Hukma redeemed the first mortgage in favour of Bhupa and Sidhu. Rattni widow of Banta Singh predecessor-in-title of the Plaintiffs gifted her share of equity of redemption in March, 1967 in favour of Plaintiffs 4 to 6. Finally in June, 1967, the Plaintiffs 4 to 6 along with the Plaintiffs 1 to 3 redeemed the entire mortgage which existed in favour of Ram Rakha and Hukma. In this manner the Plaintiffs became entitled to resume possession, but according to their case, the disputed area of 1 kanal and 12 marlas was not vacated by Ishar and Bhagta who are first cousins to Hukma and Ram Rakha. As such the Plaintiffs filed a suit for possession against these Defendants.

The defence of Ishar and Bhagta was that they were in possession in their own right from the last 100 years. They exhibited want of knowledge for the mortgage executed by Mohan, and Ram Rakha and Hukma being mortgagees. They based their title exclusively on long possession. It was rather claimed that both of them acquired adverse possession and the Plaintiffs were not entitled to recover possession from them.

The learned trial Judge found in favour of the Defendants and he dismissed the suit. The decision was carried in appeal before the learned Additional District Judge who disagreed with the finding on adverse possession. The suit has thus been decreed for possession. The Defendants have now conic up in second appeal.

It was admitted case before the trial Judge that one Shrimati Dhano was the common ancestor of both the parties. The revenue excerpts (Ex. P. 4) right from 1868-1869 to 1956-57 were produced in the case. The revenue entries before mortage pertained to the dates 1868-69, 1895-96 and 1907-08. The first two excerpts showed Dhano and Jodha, Sobha, Bhagwana besides Daula and Kaula, ancestors of the Defendants to be owners. In the cultivators'' column, the co-sharers Daula and Kaula were shown. In the year 1907-1908 Mohan was entered as co-sharer along with Daula and Kaula, meaning thereby that the Plaintiffs'' ancestor as well as the Defendants'' predecessor-in-title belonged to the same family. The possession of Kaula and Daula was that of a co-sharer. In the year 1912-13 (Ex. D. 1) Mohan was entered as mortgagor, and Sidhu and Bhupa were entered as mortgagees. The possession remained with the mortgagees as well as with Kaula. No rent was paid by Kaula because nobody demanded rent from him. The entry was "bila lagan bewaje bekhabri". The same entry continued in 1915-16 and 1919-20. The possession was entered with Maula, Asa Ram, Sada Ram predecessor-in-title of the Defendants. Some of them were entered as non-occupancy tenants. The rent was not paid because of "bekhabri" or because of "batwara". In the years 1923-24 Mohan was again entered as mortgagor. Ram Rakha and Hukma predecessor-in-title of the Defendants were entered as mortgagees, and Maula and Sada Ram were entered in possession over two-thirds share. The rent was not payable because of "rishtedari". The same entry continued in 1927-28 and 1931-32. In fact the entry was repeated upto 1943-44. Maula was in possession, but he was not paying rent because of ''rishtedari''. In the years 1954-55 the two Defendants were entered in possession with the same entry regarding mortgage of Mohan. In the years 1956-57 the Plaintiffs were entered in place of Mohan, and the two Defendants were entered in possession. However, the rent was not payable because of "la ilmi". It is significant to note that Maula or Kaula the predecessor-in-title of the Defendants were no doubt entered in possession, but their possession was not in their own right but as derivative possession from the mortgagees and although the rent was payable but it was not paid because of ''bekhabri'', ''batwara'', ''rishtedari'' or ''la ilmi''. On the basis of these entries, the Defendants claim adverse possession. When Mohan belonged to the same family as of the mortgagees and one co-sharer was in possession, it was obviously on behalf of the remaining co-sharers. That apart, there is no contra-evidence to indicate that Maula was in possession with a title hostile to Mohan or to his mortgagees. After all he was real brother of Asa Ram who was father to the mortgagees. The present Defendants are the first cousins of the mortgagees. The family being the same including that of the mortgagor, unless any co-sharer including the mortgagor or the mortgagee was ousted adverse possession will not start against him. In fact there is no evidence that there was open assertion of hostile title on the part of Maula.

Now I shall come straight to the plea of adverse possession. The law as to that plea is very well settled. In the instant case, Maula or the Defendants claim adverse possession both against the mortgagor and the mortgagees. As far back as in 1914, a Full Bench of Madras High Court of which the report is Peria Aiya Ambalam and Ors. v. Shunmugasundaram and Ors. AIR 1914 Mad 334, dealt with the question of adverse possession claimed against a mortgagor. It was held that the possession of a stranger who dispossesses a mortgagee in possession, would be adverse to the mortgagor if the latter also was dispossessed. Mere dispossession of the mortgagee will not amount to such adverse possession; there must be at least notice to the mortgagor that possession is held against him also. If the mortgagee in possession is dispossessed on grounds affecting only his right, then the dispossession of the mortgagee obviously does not imperil or call in question any right of the mortgagor. The mortgagor is not concerned or entitled to insist on his being immediately restored to possession. In the instant case, it was usufructuary mortgage in favour of Hukma and Ram Rakha. Mohan was not entitled to immediate possession. How could the possession of Maula be adverse to him when obviously he was not entitled to regain possession from Hukma or Ram Rakha? A stronger evidence was needed on open assertion of hostile title by Maula or his sons, so as to defeat the co-sharers'' title of Hukma and Ram Rakha. In fact their ouster was required to be proved. The evidence is highly deficient to prove this ouster and Hukma and Ram Rakha did not lose their title, what to say the title of the mortgagor Mohan.

In P. Veerana Thevar v. Karuppavi and Ors. AIR 1959 Mad 37 the full bench decision of that court was followed. A person setting up acquisition of title by adverse possession in the case of a property in the possession of the mortgagee must show knowledge of such possession by the mortgagor and unless the requisite length of possession is established as also the fact that this possession is open, adverse and to the knowledge of the mortgagor, no trespasser can claim title by adverse possession against a mortgagor. In Tarabai Ramrao Patankar Vs. Dattaram Govindbhai Gujar, it was held that though a trespasser by holding possession against the mortgagor can bar the mortgagor''s right to redeem, it cannot be said that an equity of redemption can be acquired by adverse possession of the mortgaged property. It was further held that in the case of a 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. Ordinarily adverse possession against a mortgagee is altogether ineffectual as against the mortgagor where the mortgagor was not entitled to immediate possession. Special circumstances can be proved whereby ouster is established of both the mortgagor and the mortgagee, and only then adverse possession for equity of redemption can be inferred. No such evidence is forthcoming in the present case. In Narsingh Singh Vs. Raghuvendra Singh, it was held that possession cannot be adverse to a person (mortgagor) who has no immediate right to possession because of the existence of the usufructuary mortgage. The real owner may have knowledge that a third person has taken possession by asserting a hostile title, but if the rightful owner has no right to present possession of the property and cannot on that account act to enforce his possession, the mere knowledge, in such circumstances, will not be enough to make the possession of the trespasser adverse to the owner. In such cases the mortgagor may think that it is the mortgagee who has transferred possession to the stranger and his equity of redemption remains unaffected by the transaction. The adverse possession would, in that case, be to the detriment of the mortgagee but not of the mortgagor. Thus where a person claiming adverse possession has merely made an assertion and got his name entered in the revenue record without doing anything to the detriment of the owner, he cannot claim ouster of the rightful owner. Thus Maula, if he succeeded in getting revenue entry, cannot be stated to have claimed adverse possession either against the mortgagee or against the mortgagor. In fact he was liable to pay rent which was not being charged because of family relationship. This is so specifically stated in some of the entries in the revenue record. It is one of the fundamental requirements of prescription of title by adverse possession that the adverse possessor should assert a title in himself openly and in derogation of the title of the true owner for a continuous period of 12 years. Can it be stated that Maula asserted any title in derogation of the right claimed by Ram Rakha or Hukma, or even the mortgagor''s right claimed by Mohan or his sons? Therefore the mere entries in favour of Maula or other predecessors-in-title of the Defendants will be of no avail. A case for adverse possession was not made out.

In this connection, the learned Counsel submitted that Daula and Kaula were in possession even before the partition which took place in the family in 1906. That may be so, but their possession being co-sharers was on behalf of the other co-sharers. Thereafter the entry regarding mortgage was made in the revenue record. Maula came in possession, but he was held to be non-occupancy tenant and the rent was not paid because of relationship. Thus it was an innocuous circumstance and never conferred adverse title upon Maula or his successors. When the Plaintiffs redeemed the mortgage in June, 1967 they became entitled to possession. The Defendants vacated the rest of the area, but did not vacate the disputed 1 kanal and 12 marlas. As such the present suit was filed.

In ultimate analysis, I find no grounds to take a different view in the matter. There is nothing to impel this Court to hold that Maula had acquired title by adverse possession. In fact, no title was acquired for equity of redemption which could legitimately be claimed by the present Plaintiffs. In fact the mortgage has been redeemed in June, 1967, and possession should have gone to the Plaintiffs. The suit was rightly decreed by the learned Additional District Judge.

The second appeal is dismissed, and the Plaintiffs suit for possession of the disputed land shall stand decreed. The Appellants shall pay costs of the Respondents in second appeal.