Manga and Others vs Gian Mohd. and Others

L.N. Mittal, J.—This is second appeal by plaintiffs, who have been unsuccessful in both the courts below.

Plaintiffs filed suit seeking declaration that they have become owners of the suit land by adverse possession. The plaintiffs alleged that predecessors of the defendants, who were owners in possession of the disputed share in the suit land, mortgaged the same in favour of one Dhajja. Plaintiffs'' predecessors got the said mortgage redeemed on 15.05.1956 and therefore, defendants'' predecessors were left with no right, title or interest in any part of the suit land. It was also pleaded that defendants'' predecessors tried to take possession of the suit land forcibly on 15.05.1975, but they were thrown out of the suit land and since then, the possession of the plaintiffs over the suit land was adverse, open and hostile and therefore, plaintiffs have become owners of the suit land by adverse possession.

The defendants admitted that their predecessors had mortgaged the suit land and the same was got redeemed by predecessors of the plaintiffs. However, other averments of the plaintiffs were controverted. It was pleaded that defendants along with plaintiffs are co-sharers in joint possession of the suit land. The plaintiffs used to give chakota (rent) to the defendants regarding their share in the suit land.

The plaintiffs filed replication to controvert the pleas raised by the defendants. Later on, none appeared for the defendants in the trial court and they were proceeded ex-parte. The plaintiffs led ex-parte evidence.

Learned Additional Civil Judge (Senior Division), Narwana, vide judgment and decree dated 19.09.2005, dismissed the suit of the plaintiffs. First appeal preferred by the plaintiffs has been dismissed by learned Additional District Judge, Jind, vide judgment and decree dated 28.04.2008. Feeling aggrieved, the plaintiffs have filed the instant second appeal.

I have heard learned Counsel for the appellants and perused the case file.

Learned Counsel for the appellants contended that admittedly, as per written statement, mortgage of the suit land created by defendants'' predecessors was got redeemed by plaintiffs'' predecessors on 15.05.1956 and therefore, the plaintiffs'' possession is adverse and the plaintiffs have become owners of the suit land by adverse possession. Reliance in support of this contention has been placed on a judgment of Kerala High Court in the case of Kalliani Amma v. Mallika reported as 2000 (1) CCC 250 (Ker).

I have carefully considered the aforesaid contention, but find no force therein. Judgment in the case of Kalliani Amma (supra) is not applicable to the facts of the instant case because it was observed therein that possession without title would be adverse. In the instant case, however, it is the plaintiffs'' own case that they got the mortgage redeemed from mortgagee Dhajja. Consequently, plaintiffs stepped into the shoes of mortgagee Dhajja and became mortgagees of the suit land. In view thereof, possession of the plaintiffs could not be said to be adverse. Moreover, plaintiffs are admittedly co-sharers in the suit land. For this reason as well, the plaintiffs'' possession being as co-sharers could not be said to be adverse to the defendants, who are also co-sharers in the suit land. Ouster of defendants from suit land is not proved.

In addition to the aforesaid, mortgage was admittedly with possession and therefore, right to redeem has also not extinguished by lapse of time. Full Bench of this Court in the case of Ram Kishan and Ors. v. Sheo Ram and Ors. reported as 2008 (1) R.C.R. (Civil) 334 held that there is no limitation period for redemption of usufructuary mortgage except in certain specified circumstances. However, the exceptions have not been pleaded or proved in the instant case and are not applicable to the facts of this case. In this view of the matter, the possession of the plaintiffs, if any, would be as mortgagees over the share of the defendants and the said possession would not be adverse.

For the reasons recorded herein above, I find no merit in the instant second appeal. The plaintiffs'' possession cannot be said to be adverse and plaintiffs cannot be said to have become owners of the suit land by adverse possession.

The appeal is accordingly dismissed in limine.