Kunj Lal vs Kanhai Mahio

Adami, J.—The land in dispute in the suit giving rise to this second appeal was originally the kasht land of the defendant, but in 1898 was sold in execution of rent decrees obtained by the 16 annas proprietor of the village, the Mohunt of Patepur, to Sheonandan Prasad Singh and Raghanandan Prasad Singh who, on the 3rd January 1899, mortgaged the land under a simple mortgage-bond to the plaintiff. In 1906 the plaintiff obtained a decree on his mortgage and at the sale in execution of his decree purchased the land, and a few days after delivery of possession, on the 29th January 1914, leased it to the Bahuara Opium Factory. When the Factory sought to take possession the defendant resisted, and there was a dispute whish fulminated in nation 145, Criminal Procedure Code proceedings and an order declaring the Factory to be in possession on 18th July 1914. After that the Factory surrendered its lease to the plaintiff, who, however, owing to the resistance of the defendant, was unable to get possession. The plaintiff then brought this suit for a declaration of his title and for recovery of possession dating his dispossession from the 2nd November 1914. In the alternative is he prayed that a fair rent might be fixed as payable by the defendant, and that he should be awarded a decree for arrears of rent from 1322 to 1325 Fasli.

The defendant pleaded that the suit was barred by limitation since the plaintiff had never held possession of the plaint lands. Ha denied that Raghunandan and Sheonandan had been in possession after purchase in a sale under a decree for rent; or that the plaintiff had bought the land and taken possession in execution of mortgage-decree. He claimed title by adverse possession.

The Munsif in a very short judgment, and for reasons which are quite unconvincing, found that the plaintiff was not entitled to obtain khas possession of the land, and, for some unexplainable reason, held that the plaintiff was entitled to rent from the defendant, us his tenant. He held that the defendant was not entitled to the land by adverse possession.

On appeal and cross-appeal the Subordinate Judge held that the defendant was admittedly an occupancy tenant originally and, if he remained in possession of the disputed land after the sale in execution of the rent-decree, he was a trespasser, and the plaintiff muse come to Court within 12 years from the date of sale under the rent decree, unless he could prove possession within 12 years. He upheld the Munsif''s finding that the writ of delivery of possession made to the plaintiff after his purchase in the mortgage-decree could not have any bearing upon the question of the defendant''s actual possession, as the defendant was not a party to the mortgage-decree. He held also that the order passed u/s 145, Criminal Procedure Code, did not necessarily amount to an ouster of the defendant, and that an admission of the plaintiff in a title suit in 1919 showed that the defendant was in possession all along. He relied also on certain rent receipts granted by the Mohunt of Patepur to the defendant. He found that the defendant, had been in possession of the land since 1898 as a trespasser, and that his possession was adverse to the prode cessors-in-interest of the plaintiff and to the plaintiff himself fop more than 12 years. He decided that the plaintiff''s suit was time-barred.

Now, it appears that the sale under the rent-decree was in 1898, and the mortgage to the plaintiff was executed in 1899, so that, if in spite of the sale to Baghunandan and Sheonandan, the defendant remained in possession of land the commencement of his adverse possession as against the purchasers was prior to the mortgage to the plaintiff. The learned Subordinate Judge appears to Judge appears to be in error in thinking that, for the purposes of computing the duration of adverse possession against a mortgagee who has, under a simple mortgage-bond, brought the property to sale and purchased it himself, the duration of adverse possession held against the mortgager before the sale can be talked on to the duration of adverse possession against the mortgage after his purchase in execution of the mortgage-decree.

Mr. Mitter has cited the cases of Koran Singh v. Eakar Ali Khan LR 9 I. A. 99 : 5 AC 174 382 : 2 Ind. Dec. (NS) 1044 (PC) Viyapuri v. Sonamma Boi Ammani 31Ind. Cas. 412 : 39 ML 811: 29 WLJ 645 : 2 LW 1080 : (1915) MWN 927: 18 MLT 436 and Priya Sakhi Debi v. Eireshwar Somanta 37Ind. Cas. 277 : 21 CWN 177 : 44 AC 425 : 87 CLJ 212 These cases clearly show that when, after a sin-pie mortgage has been granted, a third person commences to acquire title by adverse possession against the mortgagor, the period of adverse possession against the mortgagor cannot operate against the mortgagee while he is not entitled to possession. Adverse possession operates against a mortgagee only when the mortgagee is entitled to possession aid time runs against him from the date when he is entitled to enter upon the lard.

A careful consideration of these cases shows, however, that the decisions do not relate to a case where adverse possession against the, mortgagor has commenced prior to the execution of the simple mortgage, and in fact in the case of Priya Sakhi Debi v. Birashwar Samanta 37Ind. Cas. 277 : 21 CWN 177 : 44 AC 425 : 27 CLJ 212 Sanderson, C. J., points out that, if in the case of Karan Singh v. Bakar Alt Khan LR 9 I. A. 99 : 5 AC 174 SPCJ 382 : 2 Ind. Dec. (NS) 1044 (PC) the possession by the Collector previous to the mortgage could have been treated as possession by the defendant who claimed adversely, the operation of adverse possession would not have been affected by the subsequent grant of the mortgage security.

The case of Nallamuttu Pilla v. Betha Naicken 23 ML 37 : MLJ 258 : 8 Ind. Dec. (NS) 420 was distinguished on this very ground Mukerjee, J., in the same ease points out that in the case of the grant of a mortgage by a person'' previously dispossessed "the adverse possession which'' had commenced to operate against the mortgagor would not, by the grant of the mortgage, be arrested, but would operate equally against the mortgagee, for in the words of Lord Kingsdown in Prannath Roy Chowdry v. Rooke a Begum 7 MIA 323 : 4 WR PC 37 : 1 SPCJ 367 : 1 SPCJ 692 : 19 ER 331 ''a cause of action is not prolonged by mere transfer of the title.''

If, then, the defendant was not in possession as against Sbeonandan and Raghunandan prior to the mortgage by them to the plaintiff in 1899, the period during which they were in possession up to 1913 or 1914, when the plaintiff executed his decree and obtained writ for delivery of possession, cannot be grunted as against him in respect of adverse possession.

In 1914, the Factory, the lessee, wag declared to be in possession, end, if the Factory was in possession as lessee, that possession would count as possession of the plaintiff.

Both the lower Courts have failed to, appreciate the questions to be decided in the case, and have failed to come to a distinct finding necessary for the answer to these questions. It was necessary to find wlether'' the deferdants were in possession adverse to Raghurandan and Sheonandan prior to the mortgage. It is true that the learned Subordinate Judge has stated that the plaintiff admitted in a written'' statement in a suit instituted in 1919 that tie defendant had been all along in possession, but the learned Subordinate Judge''s statement is based on no evidence. What the plaintiff stated in his written statement was that defendant was in possession of the land at the time the written statement was crawn up that is to say, in 1919. There is no statement there that the defendant had all along been in possession.

With regard to the order u/s 145, Criminal Procedure Code, a finding should be come to whether the Factory was in fact in possession, if such a finding is possible on the avidence.

It is clear to me that the Subordinate Judge has misconcevied the points to be decided in the case, and I, therefore, set aside his decree and remand the case for a rehearing of the appeal and disposal according to law.

The appeal is allowed, costs will abide the result.