Mohan Bhakat vs Jagdayan Pande

Kulwant Sahay, J.—This is an appeal by the plaintiff against the decision of the Subordinate Judge of Manbhum modifying the decision of the Munsif of Dhanbad and dismissing the plaintiff''s suit in respect of the lands claimed except as regards certain mahul trees.

The plaintiff''s case was that the lands in dispute formed a raiyati holding of one Chamu Manjhi. Defendants 1 and 2 are the sons of Chamu Manjhi and defendants 3 and 4 are his grandsons. The other defendants excepting defendant 8 claim to be mortgagees of the property in dispute subsequent to the mortgage of 24th July 1908 executed by Chamu in favour of one Tanu Dass. Defendant 8 is the ijaradar of the village from the proprietor and he stands in the shoes of the proprietor.

The plaintiff alleged that Chamu executed the mortgage on 24th July 1908 in respect of the disputed property in favour of Tanu Das and subsequently Tanu Dass assigned the mortgage to the plaintiff. The plaintiff instituted a suit to enforce the mortgage and obtained a mortgage decree and in execution of the decree he purchased the mortgaged property on 18th April 1922 and took delivery of possession through Court on 5fch July 1922. The plaintiff says that he was in possession for a short time but that the defendants dispossessed him in Sraban 1329 shortly after he had obtained delivery of possession and during the settlement proceedings the defendants conspired together and succeeded in getting their names recorded in the Record-of-Rights. The plaintiff accordingly instituted the present suit for a declaration of his title and recovery of possession.

We are here concerned with the defence of defendant 8 alone. The defence of the other defendants was found to be untenable and they did not appeal against the decree of the learned Munsif. The only appellant in the lower appellate Court was defendant 8, namely, the ijaradar of the village. His defence was that as regards the properties in lot 3 they constituted his main land and he had been in possession since he got his ijara of the entire village on 2nd July 1908. He claimed the properties in lots 2 and 6 of the plaint as lands reclaimed by him over which he had acquired raiyati interest long before his ijara and he claimed certain mahul trees in lot 5 as belonging to the proprietor and he claimed to be in possession thereof as representing the proprietor in his capacity of ijaradar.

Both the Courts below have found that the title to these three classes of lands claimed by defendant 8 was in the plaintiff. They have concurrently found that they formed a part of the raiyati interest of Chamu and were included in the mortgage executed by him on 24th July 1908 in favour of Tanu Das and that the present plaintiff by the assignment of the mortgage taken by him had acquired the title of the mortgagee and in execution of the decree obtained on the basis of the mortgage he had purchased the three classes of property mentioned above. There can be no doubt, therefore, as regards the title of the plaintiff in respect of these properties. The only question was as regards limitation.

The learned Munsif found that Chamu was in possession of the disputed property within 12 years of the suit. The plaintiff''s right to take possession accrued after his purchase in April 1922 and delivery of possession in July 1922 which was within three years from the date of the suit. There was therefore no question as regards the plaintiff being entitled to a decree for possession unless it was shown that Chamu had lost title to the property by adverse possession of the defendant on the date of the mortgage. The Munsif came to a clear finding that Chamu was in possession on the date of the mortgage in favour of Tanu Dass. He further found that Chamu was in possession up to sometime in the cold weather of 1921-22. Upon this finding he held that the suit was within the period of limitation and gave a decree to the plaintiff.

The learned Subordinate Judge, however, has come to the finding that the plaintiff has failed to establish that he was in possession within 12 years before the date of the suit. So far as the plaintiff''s possession is concerned it is clear that he was not in possession before 1922 because possession was delivered to him by Court in July 1922. What the learned Subordinate Judge perhaps meant to find was that the plaintiff has not been able to prove that the mortgagor Chamu had been in possession of the property within 12 years of the suit and in my opinion this finding is not sufficient to dismiss the plaintiff''s suit on the ground of limitation.

It is contended that if Chamu was in possession on the date of the mortgage then the. mortgage to Tanu was a valid mortgage and the decree on that mortgage obtained by the plaintiff was a good and valid decree and the plaintiff acquired a good title by his purchase in execution of the mortgage decree and would be entitled to possession. The fact that Chamu was turned out of the mortgaged property cannot in any way affect the title of the mortgagee if on the date of the mortgage the mortgagor was in possession. The learned advocate on behalf of the respondent concedes that if Chamu was in possession on the date of the mortgage, then the plaintiff is entitled to a decree for possession. As I have said the finding of the learned Munsif was dear on the point that Chamu was in possession on the date of the mortgage. The learned Subordinate Judge does not disturb that finding; all that he finds is that it was not proved that Chamu was in possession within 15 years of the suit. This finding is not sufficient to dismiss the suit on the ground of limitation. If the defendant has acquired title by adverse possession against Chamu after the execution of the mortgage, then he would be bound by the mortgage and the decree obtained on the mortgage would give the plaintiff a title as against defendant 8.

It is contended on behalf of the respondent that the case should be remanded to the learned Subordinate Judge for a clear finding whether Chamu was in possession on the date of the mortgage. Although the learned Subordinate Judge has not come to a clear finding on that point, but the whole trend of his judgment goes to show that Chamu was in possession on the date of the mortgage. As I have said the learned Munsif had come to this finding and the learned Subordinate Judge does not disturb that finding. His findings in connexion with the plaintiff''s title in respect of plots 42 and 58 are in these words:

Consequently I am of opinion that the learned Munsif was right in finding that plots 42 and 58 (Natun Hir) were included in plaintiff''s title-deeds and were in possession of Chamu Majhi as his khandit.

Having regard to all the findings of the learned Subordinate Judge there can be no doubt that the possession of Chamu was subsisting on the date of the mortgage. Had Chamu not been in possession the Subordinate Judge could not have come to the finding that the mortgage to Tanu Dass was a valid mortgage. It is not necessary to make a remand for a finding on the point.

I am, therefore, of opinion that the view taken by the learned Subordinate Judge on the question of limitation cannot be sustained. Having regard to the fact that the mortgagor was in possession on the date of the mortgage and to the fact that the title of the plaintiff to recover possession accrued in July 1922 and the suit having been brought in February 1925 there can be no question of limitation.

The result is that the decree of the learned Subordinate Judge will be set aside and that of the learned Munsif restored. The plaintiff is entitled to the costs throughout.