M A HASSAN Vs. KUNJULAKSHMI AMMA

JUDGEMENT

(1.) This appeal is with the leave of a learned Judge of this Court in S.A. No. 672 of 1971. The matter arises out of a suit for redemption of about 19 cents of land. The 2nd defendant in the suit is the appellant before us. Ext. P-1 dated 23-6-1102 M.E. 5-2-1927 is the mortgage, styled 'Otti Kuzhikanam, sought to be redeemed. It was granted by one Kunjulekshmi Amma, the mother of the minor plaintiff, to the defendants. By Ext. D-3 dated 20-9-1111 = 2-5-1936 a melotti was granted for and on behalf of the plaintiff by the plaintiff's uncle to the 2nd defendant. This was followed by a sale deed Ext. D-2 dated 2-1-1112 = 17-8-1936 by the same uncle to the 2nd defendant. The mortgage Ext. D-1 was released to the 2nd defendant by Ext. D-7 dated 26-10-1112 = 9-6-1947. The plaintiff attained majority on 24-10-1950, and the suit was laid on 29-9-1965 ignoring Ext. D-3. The Trial Court decreed the suit. On appeal, the lower appellate court reversed the said judgment and decree and directed that the plaintiff's suit be dismissed. On Second Appeal, a learned Judge of this Court set aside the judgment and decree of the lower appellate court and restored that of the Trial Court.

(2.) Counsel for the appellant urged two main contentions. First, that the defendants had prescribed title against the plaintiff by adverse possession and limitation; and second, that in any event, the appellant was entitled to plead tenancy rights under the Kerala Land Reforms Act, 1963 (Act I of 1964) and to claim fixity of tenure under the provisions of the said Act. On the first question of adverse possession and limitation, it was argued that ever since Ext. D-7 release deed of 1947, the second defendant had remained in possession as absolute owner, and as the same had continued for over 12 years, the rights of the plaintiff had been barred and extinguished. It was stressed that subsequent to Ext. D-7, patta had been transferred in the name of the second defendant as evidenced by Ext. D-8, that the property tax receipts had also been obtained in his name (vide Ext. D-9), and that in land acquisition proceedings relating to a portion of the property (nearly six or seven cents in extent) the compensation amount had been claimed by, and paid to, the second defendant, and no portion of it had been paid to the plaintiff. These are the acts alleged and relied upon to constitute adverse possession and acquisition of title by the plaintiff.

(3.) In the light of the principles laid down by the Full Bench, we have to see whether, in the instant case, acts and conduct of the mortgagees amount in any way to an infraction or violation of the rights of the mortgagor. We are satisfied that they do not. The mortgage Ext. P-1 did not provide for payment of any surplus profits or anything by way of rent or perquisites to the mortgagor. In the nature of things, a mere enjoyment of the property by one who had obtained the rights of the mortgagee cannot be regarded as in any manner adverse to the rights of the mortgagor. Neither the transfer of patta nor payment of property tax, nor payment of the land acquisition amount, seem to us to place the case any stronger against the mortgagor, these being wholly inadequate to constitute the necessary acts of adverse possession. Patta, is well known, is not evidence of title; and as far as the receipt of the land acquisition amount was concerned the provisions of the Act contain sufficient indication that the mortgagee, as a person interested in the property acquired, can well be a party to the land acquisition proceedings, and is entitled to claim the mortgage money from the land acquisition amount. The owner is not entitled to personal notice of the proceedings. It is enough if notice is given by publication in the Gazette and in the places ordained by the Statute, And S.72(2) of the Transfer of Property Act provides that where the mortgaged property or any part thereof is acquired the mortgagee may pay himself out of the compensation amount. We are unable, in the circumstances, to see how the receipt of the amount by the mortgagee can amount to adverse possession against the mortgagor. The conclusion of the learned Judge that there was no adverse possession on the proved facts and circumstances was correct and we have little hesitation in affirming the same.