Maharaj Mal vs Jagdish Ram and Others

P.C. Balakrishna Menon, C.J.—The first Plaintiff appeals against the concurrent decree of the courts below dismissing the suit filed by Plaintiffs No. 1 and 2 for recovery of the possession of the suit property on the strength of title or in the alternative on redemption of the mortgage dated 19-4-1932.

The second Plaintiff''s father Parma Datt mortgaged with possession 21 kanals and 19 merles of land comprised in khata ''Mo. 977/406/137 and 66/132 to 137 in favour of one A.judia Dass, for a consideration of Rs. 1206/-. The 21 kanals 19 marlas of land represented his 1 4th share in a larger extent of 90 kanals 17 morals. Ex. P. 5 dated 26-6-1932 shows mutation sanctioned in favour of the mortgagee.

While the mortgagee was thus in possession, the second Plaintiff as legal heir of Parma Datt sold 10 canals out of the mortgaged laud to one Ram Rakha Sood for a consideration of Rs, 2000/-. The consideration was constituted of Rs. 1206/-reserved with the vendee, for redemption of the mortgage and a sum of Rs. 794/- paid in cash. The mortgagee Ajudia Dass thereupon filed Civil Suit No. 316/55 in the court of the Senior Subordinate Judge at Dharamshala for pre-emption. That suit ended in a compromise. Ex. P. 6 is the judgment and Ex. D-l is the decree dated 27-4-1956, embodying the terms of the compromise. The mortgagee Ajudhia Dass was to pay Rs. 794/-to Ram Rakha Sood and appropriate Rs. 1206/- to himself in discharge of the mortgage. Ex.P Wl/A dated 22-12-1957 is said to be the receipt issued by the mortgagee Ajudhia Dass evidencing receipt of Rs. 1206/- in discharge of the mortgage debt. The second Plaintiff got-mutation attested to show the redemption of the mortgage. Ajudhia Dass died. His son Salig Ram appealed to the Collector against the mutation showing the redemption of the mortgage. The Collector at the first instance by Ex. D-4 dated 23-1-1961 remanded the case to the Assistant Collector for fresh disposal, after finding that the mutation was bad for want of notice to Salig Ram. The mutation proceedings ended in Ex. P-4 order of the Collector dated 18-12-1962 passed in appeal against the revised order of the Assistant Collector. As per Ex. P-4, the Collector set aside the mutation thereby holding that there was no redemption of the mortgage. The receipt Ex. PW1 /A was held inadmissible in evidence for want of registration. The second Plaintiff had vide Ex. PW5/1 dated 28-8-1969 sold 8 kanals of the mortgaged land outside the land covered by the sale deed Ex. PW2/A to the first Plaintiff. The present suit was filed on 26-7-1970 for recovery of the land excluding the extent sold as per Ex. PW2/A on the strength of the Plaintiff''s title. There is an alternative prayer for recovery on redemption of the mortgage dated 19-4-1932.

Defendants No. 1 and 5 to 10 are the children of Ajudhia Dass and Defendants 2 to 4 are the legal heirs of Salig Ram. Defendants No. 1, 6 and 10 filed a written statement raising the contention that the suit for redemption is barred by limitation and that they have acquired to the property by adverse possession. They had, however, in paragraphs 7 and 8 of the written statement raised a plea that Ajudhia Dass had not been paid the mortgage money and that Ex. P-4 order of the Collector was perfectly legal and binding on the Plaintiffs. The other Defendants who had filed written statements had generally denied the allegations in the plaint and had expressed inability to give details of the transactions for want of knowledge.

Both the courts below have found that if the suit can be reckoned as one for redemption, it is within time as having filed within the extended period of limitation provided for in Central Act 10 of 1975. The Courts below have, however, held that the mortgage stands extinguished by virtue of the compromise decree Ex. D-l and hence the suit for redemption is not maintainable. The trial court dismissed the suit on the finding that the Plaintiff''s title is lost by adverse possession of the Defendants for over 12 years after the compromise decree Ex. D-l in civil suit No. 316/55. The lower appellate court has concurred with this finding and has up-held the dismissal of the suit.

The only point for decision in this second appeal is as to whether the admitted title of the Plaintiffs is lost by adverse possession of the Defendants.

Ajudhia Dass the predecessor-in-interest of the Defendants came into possession of the properly as a mortgagee. The mortgage debt stood discharged is clear from the compromise decree Ex. D-l passed in the pre-emption suit C.S. No. 316/55 filed by him. The mutation proceedings that ended in Ex.P-4 order of the Collector would, however, show that the legal heirs of Ajudhia Dass continued in possession as mortgagees even after the discharge of the mortgage debt. Defendants No. 1, 6 and 10 in their written statement, referred to above, denied the receipt of the mortgage-money by Ajudhya Dass and stood by the order of the Collector Ex. P-4 indicating that the mortgage had not been redeemed. On these facts, I find it difficult to subscribe to the view expressed by the courts below that the possession of the Defendants was adverse to the admitted title of the Plaintiffs. It is well settled that a mere continuance in possession even after the discharge of the mortgage-debt is not adverse to the mortgagor''s title vide Khiarajmal v. Daim, Gobind Ram and Ors. v. Mt. Ram Koer and Ors. Mt Beti Bai v. Tantya Singh and Ors., and Harasit Golder and Ors. v. Jaladhar Biswas and Ors.

In a recent decision in Gaya Parshad Dikshit v. Dr. Nirmal Chander and Anr., the Supreme Court has held that the mere termination of the licence does not enable the licensee to claim adverse possession unless and until he sets up a title hostile to that of the licenser after the determination of his license. The Supreme Court observed:

It is not merely unauthorized possession on termination of his license that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licenser may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his license but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorized possession even for v, period of more than 12 years is not enough.

The same principle would squarely apply to the facts of the present case where it is seen that the Defendants had not asserted a title hostile to the mortgagor even after payment of the mortgage-money.

For the foregoing reasons, I set aside the judgment and decree passed by the courts below and decrees the suit for recovery of possession of the plaint schedule-property on the strength of the Plaintiffs title. The second appeal is allowed. The parties will suffer their respective costs.