Maksudan Lal Sahu vs Niranjan Nath Das and Others

Rowland, J.—This is an appeal by the plaintiff who brought on 25th April 1936, a suit to recover principal Rs. 250 and interest Rs. 225 due on a mortgage bond secured on a house situated in cadastral survey plot No. 1055, in Khata No. 82 in village Lohardaga, District Ranohi. The mortgage bond was executed on 22nd December 1911, by Sheotahal Ram, ancestor of defendants 1 to 9 in favour of Banshi Sahu, the father of defendants 10 and 11. The mortgagee was put in possession of the property hypothecated of which he was under the document to remain in possession for three years after which the mortgagor was to be entitled to redeem.

It was further stipulated that the mortgagee would continue in possession until redemption and in case of dispossession there was a covenant to repay the money with interest at 15 per cent, per annum. The mortgagee assigned his interest by sale deed dated 10th February 1916 to Mohan Lal, the father of the plaintiff. Thereafter the plaintiff remained in possession of the house until 1930 when the defendants first party dispossessed him.

The sons of Bansi Sahu have not contested the suit but the other defendants raised various objections to the claim, one was that by oral agreement the plaintiff was allowed to remain in possession and the usufruct of the property was to be set off against both principal and interest as a result of which the debt has been extinguished.

This defence was negatived by the Courts. Another defence taken was that the plaintiff was dispossessed in 1917 or 1918 and that the suit was barred by time whether regarded as a mortgage suit or as a suit for recovery of money on the personal covenant to repay. The Courts have found the facts otherwise holding that dispossession of the plaintiff by the defendants took place in 1930 that is just within the period of six years before the institution of the suit. A third objection was that the mortgage was a transaction contrary to Section 46, Chota Nagpur Tenancy Act, and as such was void either at the outset or, at any rate, after five years. Therefore, it was said that limitation to recover the money ran from either 1914, the date on which the mortgage money was made repayable by the bond or from 1916 if it be assumed that the possession of the plaintiff as mortgagee was valid for five years.

Sections 46 and 47 are a bar to the plaintiff obtaining a mortgage decree for sale of the property and the period of six years'' limitation calculated either from 1914 or 1916 bars the relief of the money-decree on the basis of the personal covenant. This defence was accepted by the Courts below who have dismissed the suit, the view taken being that the suit should have been brought within six years from 22nd December 1916 and that the plaintiff could not take advantage of his subsequent possession of the property because it was that of a trespasser. The Additional Judicial Commissioner thought that Section 20(2), Limitation Act, could not avail the appellant because the receipt by him of the usufruct of the property was not as mortgagee in possession but as a trespasser. It is this finding of the Courts below which is assailed on appeal.

Assuming, it is said, that the plaintiff was a trespasser in possession it is contended that by holding possession for 12 years adversely to the true owner he acquired a title as claimed by him, namely the status of a lawful mortgagee. In support of the contention reliance is placed on some observations of Macpherson J. in Abdul Jabbar v. Gulab Khan AIR (1938) Pat 288. It was there said that the mortgagee begins to prescribe from the date of the mortgage and if he holds adverse possession as such for the statutory period, the raiyat can only recover possession by redeeming him. That observation was in the nature of an obiter dictum, for in the case before him which was resisted: by the defendant on the ground that he had been in possession not as a mortgagee but as a raiyat it was held that in fact the defendant had been in adverse possession of an interest as raiyat.

There are decisions of other High Courts in which a person in possession as a mortgagee under a mortgage inviolate by statute has been held to have prescribed and obtained by lapse of time the limited right of a mortgagee. It was so held in In Re: Ponnusami Pillai, and Ramchandra Venkaji v. Kallo Deoji AIR (1915) Bom 131, in a suit to redeem where the defendant held under an invalid mortgage for over 12 years and set up an absolute title, it was held that he could prescribe only for the limited interest of a mortgagee in possession. On the other hand, doubt has been expressed in this Court whether such a limited interest as the relation of mortgagor and mortgagee can be created by prescription. In Bhukhan Mian v. Radika KumariDebi AIR (1938) Pat 479 the question was not expressly decided but both Wort Ag. O. J. and Manohar Lall J. inclined to the opinion that this limited interest could not accrue by adverse possession.

In Madhovrao Waman v. Baghunath Venkatesh AIR (1923) PC 205 the question arose whether tenants claiming a permanent tenancy in service watan lands on the strength of a lease contrary to the prohibition in Bombay Act 3 of 1874 against alienation by a watandar had by adverse possession established a right to a permanent tenancy. Sir John ''Edge, in delivering the judgment of their Lordships, said, without expressly deciding the point, that:

They are constrained to say that it is somewhat difficult to see how a stranger to a watan can acquire a title by adverse possession for 12 years of lands, the alienation of which was, in the interests of the state, prohibited.

Again in AIR 1936 183 (Privy Council) the question was raised but not decided. But the decided cases mainly deal with the position in which the true owner seeks to redeem or to eject a, person in possession under an invalid mortgage. In the present case the position is changed because the defendants who are the true owners have succeeded in recovering possession of the mortgaged property.

Hence it is not necessary for us to decide what would have been the position had the present plaintiff been in possession and in the situation of a defendant to a suit of that nature. The point which we have to decide is whether limitation for the suit instituted by him which is to recover his mortgage money is to run from 1916 at latest or from 1930, the date on which he lost possession. The position seems analogous to that in Ksishnaji Bakharam v. Kashim AIR (1920) Bom 48. Here a mortgage of watan lands was by statute permissible so far as it affected the life interest of the grantor but beyond that it was not valid so as to affect the interest of his successor. A suit was brought by the successor to recover possession of the property and he succeeded on the finding that the mortgagee was since the death of his mortgagor, a trespasser.

The latter then sued to recover his money and he sought to date limitation for the suit from the date when he was dispossessed of the land treating the receipt of the rent or produce of the land as a payment within the meaning of Section 20(2), Limitation Act, giving a fresh start to limitation. It was held that time ran against him from the date of the death of his mortgagor on which date the mortgage as such came to an end. His possession thereafter

was the possession of a trespasser claiming a limited interest in the property as a mortgagee, bat not the possession of a mortgagee.

A similar view was taken in Yenkaji Babaji Naik v. Shidramapa Balapa (1895) 19 Bom 663(1895) 19 Bom 663 and Venkaji Babaji Naik v. Shidramapa Balapa (1895) 19 Bom 663. That being so, we are unable to hold that the enjoyment of the usufruct of the property by the plaintiff year by year gave him a fresh start for limitation for a suit to recover the money. On that finding the claim to a money decree fails. As to the alternative claim for a mort-gage decree Mr. K. K. Banarji for the appellant did not feel himself in a position to press it and said he would be content if his client got a money decree but it may be pointed out that the mortgage having been entered into in violation of Section 46, Chota Nagpur Tenancy Act, could not, under that Section or Section 47, form the basis of a valid decree for sale. It is true that the land (and house) now in suit has ceased to be raiyati land and its status is chhaparbandi.

But the change took place apparently about 1928 and will not validate a transaction regarding the land which was previously invalid. It was faintly contended that if relief under the bond could not be given to the plaintiff he might be permitted to amend his pleading and asked to be treated as a person who has by prescription acquired an absolute title as owner. For this purpose he might be permitted to amend his plaint by adding a prayer to be restored to possession of the house. I do not think that at this late stage the plaintiff can be allowed to make such an amendment which would alter the character of the suit to a degree which does not seem to be permissible. In the result I would dismiss the appeal with costs.

Agarwala, J.

I agree.