Ramasray Prasad Choudhary vs C.G. Atkins and Others

This is an appeal by the plaintiff against a judgment and decree of the learned Subordinate Judge, dated 30th July 1932, by which he has dismissed the suit of the plaintiff with respect to partition of lands measuring 34 bighas 7 kathas 14 dhurs in khatas 90 and 162 in Tauzis 1097 and 1079 in villages Matihani and Meghaul. The plaintiff claimed certain other reliefs which were decreed in his favour in part, but we are not concerned with those other matters in this appeal. The appeal relates only as to whether the suit has been rightly dismissed with respect to the land just mentioned.

The facts necessary to give an indication of the controversy between the parties are no longer in dispute and may be briefly stated as follows: On 22nd September 1890 the defendants first party or their ancestors executed a mortgage bond in favour of one Gopilal for a sum of Rupees 4350. This was a simple mortgage and certain shares in these two villages were given as security. About 13 years after that, viz. on 23rd March 1903, the mortgagor, who was allowed to remain in possession, executed a lease in favour of Mr. Atkins or his predecessors, who are defendants 31 and 32 in this action, by which the mortgagor gave a lease of certain shares in the villages definitely excluding from the lease the area which is now in dispute on the statement made therein that the factory was already in possession of it in kasht right at a rental of Rs. 177-5-0 per annum. About six months after this lease, the mortgagee instituted a suit to recover his mortgage debt on 15th September 1903 and the game was decreed for a sum of about Rs. 17,000 in June of the following year Execution of this mortgage decree was effected apparently from time to time but ultimately on 30th May 1914 the property was put up to sale and purchased by the sons of the mortgagee for a sum of Rupees 40,966, which, we are informed, was the total due then under the mortgage decree. But the judgment-debtors continued in possession and no delivery of possession was taken by or on behalf of the auction-purchaser. On 22nd May 1926 the heirs of the auction purchaser, sold their rights to the plaintiff by means of three kobalas, and the plaintiff having failed in obtaining; peaceful possession of the property which he had purchased, instituted a suit (No. 37 of 1926) to recover possession of the properties described in Schedules 1 to 3 of the plaint. It is important to notice that in this action defendants 31 to 37 were not party defendants.

In this suit, we are informed that a decree was obtained in due course in favour of the plaintiff for recovery of possession against the defendants first party and he obtained delivery of possession on 8th October 1927, which has been rightly characterized by the learned advocate for the appellant as a symbolical delivery of possession. Having failed in obtaining possession of the lands which are now in controversy as well as other lands, the plaintiff then raised the present action on 12th November 1929, in which he claimed the reliefs stated above.

Now it is obvious from a mere narrative of these events that assuming that the argument on behalf of the appellant is correct that the settlement of these lands in dispute with defendants 31 to 35 was wholly unauthorized and illegal, the plain, tiff must institute the suit for ejectment of the trespassers or the unauthorized lessees within 12 years of the date of the cause of action which accrued to him or to his predecessor.

The cause of action accrued to the predecessor of the plaintiff undoubtedly on 30th May 1914 and this cause of action can never be enlarged by anything which happened subsequently on the materials on the record of this case; and therefore in our opinion the suit of the plaintiff was hopelessly barred by limitation. Dr. Mitter contended at great length that in view of the recital in the mortgage bond of 1890, that

we (the mortgagor) shall not directly or indirectly mortgage or let out the same in rehan to an; one else or execute any kind of deed in favour of others in respect thereof. If we would do so it shall be void and illegal;

it was not open to the mortgagor to put the factory in possession of the lands in dispute as a permanent lessee. He also contended that Section 66, T.P. Act, has no application to the present case and that the onus was upon the defendants to prove that their occupation as tenants was without prejudice to the rights of the mortgagee and therefore of the plaintiff.

He finally contended that the settlement with Mr. Atkins was tainted with fraud and was made in order to deprive the mortgagee of his security.

A large number of cases of the other High Courts were cited by him beginning from Banee Pershad v. Reet Bhunjan Singh (1868) 10 W.R. 325 and also reference was made to a number of cases which have been decided by this Court from time to time on this matter. Before dealing with the cases relied on on behalf of the appellant, it is useful to recall the warning given by Jenkins C.J. in Balmukund Ruyla v. Mati Lal Burman A.I.R.1919. Cal. 870. The learned Chief Justice observed as follows:

The relative position of a mortgagee and of a tenant under a tenancy created by the mortgagor after a legal mortgage is well settled in England but it would be a mistake to apply these English rules to the relations resulting from an Indian simple mortgage. The rule in Keech D. Warne v. Hall (1778) 1 Dou 21 the leading English case, is one of conveyancing but under a simple mortgage the mortgagor does not part with possession and the right of a mortgagee is merely to cause the mortgaged property to be sold for the payment of his debt.

In our opinion if this passage had been kept in view in the various cases which have been cited before us, there would not have been any such apparent divergence as is said to exist in some of the cases. We think the true view of the matter is laid down by the learned Chief Justice of this Court in Natho Singh v. Lachu Singh A.I.R.1928 Pat. 238. The learned Chief Justice pointed out that where the mortgagor''s leases are questioned by the mortgagee the burden is not on the lessee to prove that they were usual and given in the ordinary course of management, especially where the mortgagee''s dues are satisfied by the sale of the mortgaged property and that a lease given by the mortgagor cannot be presumed to be bad u/s 66, T.P. Act.

It is to be noticed that this is a case directly in point and specifically deals with the very argument as to whether Section 66, T.P. Act, has any application to the case of a lease granted by the mortgagor. To the same effect is another decision of this Court in Beni Prasad v. Parmeshwar Singh A.I.R.1931 Pat. 193 in which Ross, J. has dealt with all the cases which have clustered round this point beginning from Anand Ram Marwadi v. Dhanpat Singh A.I.R.1916 Pat. 11, as well as with all the cases which Dr. Mitter has cited before us in the course of his lengthy argument on behalf of the appellant.

It was then argued that in two cases-apparently a contradictory view has been taken by two Benches of this Court and we were asked to refer this question for decision to a larger Bench. The first case referred to is the case in Beni Prasad v. Gangu Singh A.I.R.1928 Pat. 372. There the learned Judges adopted the view of law which was enunciated by the Calcutta High Court in Madan Mohan Singh v. Raja Kishori AIR 1917 Cal. 222 that it was not competent to the mortgagor to grant a lease on unusual terms or to authorize its use in a manner or for a purpose different from the mode in which he himself had used it before he granted the mortgage.

Accepting that view they pointed out that the

point was taken in the plaint in the present case that the mortgagor had no right to create the tenancies in favour of the defendants first party, so as to alter the character of the land onto impair the value of the security,

and proceeded to observe that this aspect of the case had not been considered by the learned District Judge, and upon that view of the matter they remanded the case for a further decision on facts. In our opinion this decision does not lay down any contrary proposition at all; it simply lays down some general propositions which could not be applied to that case upon the findings of fact as they stood on that date.

The next case referred to is Mathura Rai v. Mandil Das A.I.R.1921 Pat. 183 where the learned Judges have adopted the reasonings in Madan Mohan Singh v. Rajkishori Kumari (1913) 17 C.L.J. 384 and applied them to the facts of the case before them in the following words:

In the present case, It is perfectly obvious that the benefits, which defendants 1 to 5 derived from the agreement, were not such as they might retain in the usual course of the management of the property. Up till the time of agreement they paid produce rent. The rate settled on compromise was considerably lower than the fair rent, which would have been settled on condition and it has been found by the learned Munsif that this abnormally low rate was entered into because the mortgagor saw no means of saving his property. He accordingly colluded with the tenants and on condition of a heavy nazrana he entered into the agreement, which no manager would, in the usual course of management, have entered into.

How these facts were in our opinion enough to attract the operation of the principle which the learned Judges accepted. It is to be noticed that in none of these cases reference was made to Section 66, T.P. Act, and this has been the subject of another argument by Dr. Mitter that Section 66 is never intended to apply to a lease granted by a mortgagor who has been allowed to remain in possession. This argument is unsound because a mere perusal of the language of the section makes it clear that it is intended to apply generally to all cases where a mortgagor has done some acts which either destroyed or injured the property in his possession and if by such act on his part the security is rendered insufficient.

Dr. Mitter then proceeded to take us into the facts of the case as evidenced by certain documents to show that the conduct of the mortgagor in putting Mr. Atkins in possession has injuriously affected the mortgage security and has rendered it insufficient for the purpose of realizing the mortgage debt. (His Lordship then discussed the evidence and proceeded.) In our judgment there are no materials of a satisfactory character upon the record to enable us to hold that the mortgage security was rendered insufficient by the leasing out to the respondents of these lands.

It was then argued that it must be held that the lease in question of the 34 bighas was induced by fraud, and reliance was placed upon the finding of the learned Judge that the recital in the document that the kothi was in possession before the date of the patta was false, and that the entry in the survey Record of Rights should be accepted to be correct that the lands were not the kasht of the kothi before 1903. Now from this it does not follow that the kothi and the mortgagor contrived to deprive the mortgagee of his security.

Indeed the very argument of Dr. Mitter suggests that the kothi never went into possession of the property in dispute by means of any written document, and therefore there was no leasing out of a permanent character. These 34 bighas are distinctly excluded from the two leases which were granted in 1903 and thereafter in 1916. The result there, fore is that the kothi was in possession by some sort of arrangement by which they were accepted as tenants of the mortgagor, and in the absence of any evidence of reliable character the kothi must be held to be a tenant from year to year. Now it could not be contended that if a tenancy is made from year to year, such a tenancy is forbidden by even the doctrine of English law. If the tenancy is from year to year then Mr. Atkins has been in possession for over twelve years by paying the rent and ordinarily he would acquire the right of occupancy in these lands. We are not deciding in this litigation the exact rights of Mr. Atkins as a tenant of the lands as that is not the subject of any controversy before us. Even if it is assumed that Mr. Atkins had no right whatsoever as a lessee, as already indicated the suit for recovery of possession is hopelessly barred by limitation. It is also to be noticed that the present suit is really a suit for possession in the garb of a suit for partition and therefore the plaintiff must prove his subsisting title and possession within twelve years of the date of the action which he has failed to do.

Upon this review of the facts and circumstances of the case we think that this appeal fails and must be dismissed with costs.