Trailokya Nath De vs Biswanath Prodhan

Salil K. Datta, J.—This is an appeal by the Plaintiffs in a suit for declaration of title and recovery of possession against concurrent judgment and decree of affirmance dismissing the Plaintiffs'' suit. The Plaintiffs'' case is that their predecessors-in-interest executed an instalment mortgage bond in favour of one Jaynarayan Prodhan, the then karla of the joint family, in respect of the suit and other lands on May 25,1925, for Rs. 650 and the said amount as repayable by seven annual installments.. Five installments were paid and thereafter the Panchayat settled that a sum of Rs. 209 was due from the Plaintiffs'' predecessors. By an unstamped and unregistered deed dated May 22, 1931, which the Plaintiffs termed as Panchayatnama, the predecessors-in-interest of the Plaintiffs purported to sell the suit properties to the Prodhans for the said consideration and put them in possession. It was stated in the plaint that the Defendants would keep and possess the usufruct of the land and thereby the dues under the bond would be realised, and after such realisation it was agreed by the Defendants that they would return the land to the Plaintiffs. It was contended that the Defendants had been in possession of the suit properties, but though they realised much more than the amount under the bond, they did not return the land to the Plaintiffs. On the contrary, they had fraudulently had their names mutated in the current settlement. As they refused to give possession to the Plaintiffs, they instituted a suit on October 16, 1963. The suit was contested by the Defendants who contended that the properties were sold to them as the Plaintiffs were unable to pay the dues under the bond as found by the Panchayelnama and they had been in possession of the suit land from May 22, 1931, on payment of rent to superior landlord and on the mutation of their names in the landlord''s sherisla. It was further stated that the Defendants had acquired valid., title to the properties on assertion of their title thereto long over twelve years and the Plaintiffs were not entitled to any relief in the suit. It was, accordingly, submitted that the suit should be dismissed.

On a trial on evidence before him the learned Munsif found that the Defendants by virtue of their adverse possession for more than twelve years before the suit acquired perfect title to the suit land and they were also entitled to protection u/s 53A of the Transfer of Property Act, in view of the fact that the deed dated May 22, 1932, (Ex. D) was a genuine document though it was unstamped and unregistered. Accordingly, the learned Munsif was of opinion that the Plaintiffs'' suit was bound to fail and, accordingly, the suit was dismissed. An appeal was preferred by the Plaintiffs against the said decision and the Appellate Court was of opinion that the usufructuary mortgage which was alleged to have been created by the Plaintiffs'' predecessors-in-interest in respect of the suit land had been determined on the completion of fifteen years from the date of mortgage, that is on May 22, 1946, u/s 26G of the Bengal Tenancy Act. On the determination of the mortgage, the possession of the Defendants was that of a trespasser. The present suit having been filed long after twelve years from 1946 and the Defendants having asserted their adverse and hostile title against the Plaintiffs in the meantime, the suit must be held to be barred by limitation. The appeal was, accordingly, dismissed. The present appeal is by the Plaintiffs against the said decision.

Mr. B. K. Panda, learned Advocate appearing for the Plaintiffs-Appellants, contended that the finding of the lower Appellate Court that the Defendants acquired title by adverse possession was untenable in law. His contention was that the Defendants were in possession as usufructuary mortgages and as they retained the character, as such, their possession could not be adverse to the mortgagors unless there was renouncement of mortgagees'' title and assertion of hostile title. This was not the case here according to Mr. Panda and, accordingly, his clients were entitled to redeem the mortgage for which'' the Limitation Act of 1908 applied, and in support he referred to certain decisions.

It is settled law that a mortgagee who has been put in possession of the lands as a mortgagee cannot assert his title hostile to the mortgagor while remaining in possession in the character of mortgagee. But the position here appears to be little different. Mr. Panda drew my attention in support of this contention to a decision in the case of Padma Vithoba Chikayya v. Md. Multani and Ors. AIR 1963 S.C. 70 where this Court was concerned with the possession of a mortgagee becoming adverse against the mortgagor and it was observed as follows:

It is not disputed that when a person gets into possession of properties as mortgagee, he cannot by any unilateral act or declaration of his prescribe for a title by adverse possession against the mortgagor, because in law his possession is that of the mortgagor. But if the mortgagor and the mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties thereafter not a mortgagee, but as owner that would be sufficient to start adverse possession against the mortgagor if the transaction is for any reason inoperative under the law. This contention, in our opinion, is well-founded. Though there was at one time a body of judicial opinion that when a person enters into possession as a mortgagee he cannot under any circumstances acquire a title by prescription against the owner, the law is now fairly well-settled that he can do so where there is a change in the character of his possession under an agreement with the owner, vide Karnam Kandaswamy Pillay Vs. Chinnabha alias Subbaraya Pillay and Others, .

The facts recited above are strikingly similar to the present case. Here also the alleged Panehayetnama made an award. The predecessors-in-interest of the Plaintiffs purported of convey the suit properties to the Prodhans and put them in possession, but nonetheless it is not admissible as a sale deed. It is, however, admissible to indicate the nature and character of the possession of the Prodhans as on the date of its execution. It is, therefore, obvious that on and from the date of this document the possession of the Defendants was not as that of mortgagees but as persons claiming title and ownership adverse to that of the Plaintiffs and the limitation started to ''run from the said date. As the suit was instituted long after twelve years, during which period the Plaintiffs were out of possession while the Defendants were in possession by assertion of their hostile and adverse title, the suit must be held to be barred by limitation. Accordingly, the Plaintiffs are not entitled to any relief in the present suit.

In the result, this appeal fails and is accordingly dismissed. The judgment and decree of the Courts below are affirmed.

There will be no order as to costs in this appeal.