KOCHAPPI KUNJI Vs. VELAYUDHAN DAMODARAN

JUDGEMENT

(1.) These appeals from the judgment of a learned Judge of this Court have been placed before a Full Bench in view of certain interesting questions of law arising for consideration. We shall first take up A. S. Nos. 562 and 629 of 1963

(2.) These arise out of O. S. No. 256 of 1952, Munsiff's Court, Trivandrum, a suit for redemption. Redemption was sought of an otti kuzhikanam (Ext. C dated 29-9-1104) for a, term of six years executed by the 10th Defendant in the suit and her mother Matha Kali to one Kumaran Mathu the husband of the 1st Defendant and father of Defendants 2 to 4. Plaintiff is the assignee of the equity of redemption under Ext. A dated 11-7-1951. Defendants 5 to 9 have been found to be trespassers on the mortgaged property after the mortgage. There was a suit O. S. No. 2123 of 1105 (ME.) by Kumaran Mathu to evict the trespassers. Defendants 1 and 2 in that suit were Defendants 5 and 6 in the redemption suit. Matha Kali was the 4th Defendant. Ext. H dated 21-2-1106 is the written statement of Defendants 1 and 2. It is enough to notice that in this written statement, read as a whole, they clearly stated that they were holding possession in their own right. That the mortgagor was aware of this claim is clear from her written statement (Est. J), disputing this. The eviction suit was decreed by the Trial Court on 27-6-1109 (Ext. G) and the decree was eventually confirmed in Second Appeal by the High Court of Travancore on 2-4-1113 (Ext. K). In the redemption suit also the 5th Defendant's written statement raised the plea that his possession was in his own independent right (the suit against him being in effect one for possession on title) and that the mortgagor's rights, if any, had been extinguished. The suit for redemption was decreed by the Trial Court. On appeal by the 5th Defendant, the decree was reversed and the suit dismissed, upholding the plea of adverse possession. In Second Appeal 44 of 1959 against the same, the learned Judge confirmed the finding of the lower appellate court that Defendants 5 and 6 were in possession of the properties adversely to the mortgagor, but was of the view that the said finding will not dispose of the case; and the question whether redemption could be had must depend upon whether the decree in. O. S. No. 2123 of 1105 had become barred or not. The said question was raised in S. A. No. 193 of 1962 preferred before the learned Judge against the proceedings in execution of the decree in the eviction suit (O. S. No. 2123 of 1105). In that Second Appeal the learned Judge held that execution of the decree was not barred, and that even though the redemption suit by the mortgagor was liable to be dismissed on the finding of adverse possession, the mortgagee could execute the decree in the eviction suit and claim possession of the properties, and therefore it was open to the plaintiff in the redemption suit to redeem the mortgage and obtain possession by executing the mortgagee's decree, getting himself impleaded as an additional decree holder for the purpose. Any contrary conclusion, according to the learned Judge would lead to illogicality. The learned Judge, accordingly dismissed S. A. No. 193 of 1962, the appeal by the judgment debtors in the mortgagee's suit, and allowed S. A. No. 44 of 1959, of course, only in the sense stated above. Both sides have appealed. A. S. No. 562 of 1963 is by the plaintiff and is directed against the learned Judge's decision as to adverse possession. A. S. No. 629 of 1963 is by the 5th Defendant and he seeks a dismissal of the suit on his plea of adverse possession. The decision in these appeals must depend on the question whether Defendants 5 and 6 have established their plea of adverse possession not only against the mortgagee but against the mortgagor also.

(3.) Ext. C mortgage was usufructuary and the mortgagee was in possession. Under its terms, the mortgagee was to enjoy the property, to pay tax, and, on the expiry of the term, to surrender possession on demand, on payment of the mortgage amount. The mortgagor was not entitled to any portion of the rents and profits. It is well accepted law that the mortgagor's equity of redemption is also capable of possession and therefore can be the subject matter of adverse possession. But looking at the matter on first principles, it appears to us that before possession of an independent trespasser who dispossesses a possessory mortgagee can be said to be adverse to the mortgagor's right, there must be some invasion or erosion of his right, such as, to receive rents and profits. It seems difficult to envisage adverse possession of a bare right to equity of redemption, where the mortgagee being in possession is ousted by a trespasser; for, the latter's possession must be referred to its lawful authority viz., that of the mortgagee whom he dispossessed. It is said that a strong current of judicial opinion is against this view that commends itself to us on first principles. We shall proceed to examine these decisions.