ARUN KUMAR RAI Vs. BABU RAM RAI

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution arising out of proceeings under the U. P. Consolidation of Holdings Act. It raises a question of limitation. The dispute relates to plots nos. 30/1, 34 and 36. These plots were the fixed rate tenancy of the predecessors-in-interest of the petitioners. They mortgaged the plots with the ancestors of the contesting respondents. Plots nos. 30/1 and 34 were mortgaged in the year 1876 while plot no. 36 was mortgaged in the year 1894. These plots were recorded in the name of the petitioners as Bhumidhars in the basic year and the contesting respondents were recorded as Assamis of the same. On the publication of the records under Section 9 of the U. P. Consolidation of Holdings Act the contesting respondents filed an objection claiming Bhumidhari and Sirdari rights over the plots in dispute, Their case was that the interest of the mortgagors in the plots nos. 30/1 and 34 had been extinguished by lapse of time as no suit for redemption has been filed within a period of 60 years of the date of the mortgage. Thus the mortgagor's interest in the land had come to an end in the year 1936 and the contesting respondents being in possession throughout and for a period much over twelve years from the date of the extinguishment of the mortgage had acquired independent rights in the plots and were entitled to be recorded as Bhumidhars of the same on the coming into force of the U. P. Zumindari Abolition and Land Reforms Act. As regards plot no. 36 case set up was that an application under Section 12 of the Agriculturist Relief Act had been filed by the mortgagors which was allowed by the trial court and a deposit of the amount found due had been made but no Oakhal was taken from the contesting respondents, that the order of the trial court was, reversed by the appellate court and the respondents had continued in possession of the land throughout that on the coming into force of the U. P. Zamindari Abolition and Land Reforms Act no suit was filed against them either under section 202 or 209 of that Act and they had thus acquired sirdari and thereafter Bhumidhari rights over the plot in dispute being in adverse possession of the same for a period in excess of statutory period prescribed for a suit for ejectment. It will thus be seen that the claim to plots no. 30/1 and 34 was laid on the ground of the extinction of the interest of the petitioners in the land in dispute under section 28 of the limitation Act and that to plot no. 36 on the basis of the provisions of Sections 204 and 210 of the U.P. Zamindari Abolition and Land Reforms Act. The Consolidation Officer allowed the objection of the contesting res pondents and upheld their claim on the basis of their long possession and the extinguishment of the title and interest of the petitioner. On appeal the order was affirmed by the Settlement Officer (Consolidation) who also held that the petitioners' title as mortgagors of the plots nos. 30/1 and 34 had been extingu ished in 1936 by the expiry of the period of 60 years provided for the filing of a suit for redemption, the mortgage being of the year 1876, the respo ndents being in possession of the plots in dispute were found to have acquired independent right under the U. P. Zamindari Abolition and Land Reforms Act on the coming into force of that Act. As regards plot no. 36 the Settle ment Officer (Consolidation) held that a suit under section 12 of the U.P. Agriculturist's Relief Act having been decreed against the respondents but they not having been dispossessed from the same within three years of coming into force of the U. P. Zamindari Abolition and Land Reforms Act the respon dents had acquired sirdari rights over it under section 204 of that Act. On revision the Deputy Director of Consolidation affirmed that order. It agreed with the view of the Settlement Officer (Consolidation) that the petitioned interest in plot nos. 30/1 and 34 had been extinguished by lapse of time and the contesting respondents had become the Bhumidars of the same under the provisions of the U, P. Zamindari Abolition and Land Reforms Act. As regards plot no. 36 the Deputy Director held that the relationship of mortgagor and mortgagee continued between the parties as the suit under Sec. 12 of the U. P. Agriculturists Relief Act had failed in appeal and no suit under Sec. 202 of the U. P. Zamindari Abolition and Land Reforms Act having been brought against the defendants within the time prescribed period on the coming into force of the U. P. Zamindari Abolition and Land Reforms Act they acquired sirdari rights under Sec. 204 of that Act and were entitled to be recorded as such over the plot in dispute. Aggrieved, the petitioners have filed this petition, Learned counsel for the petitioners urged that since the respondents were admittedly the mortgagees of the plots in dispute their possession over the plots was permissive. They could not prescribe a hostile title against the petitioners and the authorities below erred in conferring sirdari and Bhumidari rights on them on the basis of their long and adverse possession. Learned counsel for the contesting respondents, on the other hand, con tended that the authorities below had rightly found the contesting respondents to have acquired sirdari and Bhumidari rights over the land in dispute on the ground of the petitioner's rights being extinguished by lapse of time and they having acquired rights on the basis of their possession. The plots in dispute consist of two sets, one consisting of plots no. 30/1 and no. 34, and the other of plot no. 36. The mortgage in respect of plots nos. 30/1 and 34 was of the year 1876. The limitation for a suit for redem ption in respect of these plots expired in the year 1936, Learned counsel for the petitioners contended that limitation only bars a remedy but does not extinguish a right. Reliance was placed on "Krishna Menon v. Kesavan and others (I. L. R. 20 Madras 305) for the proposition that under section 28 of the Old Limitation Act, only right to possession is extinguished but not the right to redeem, hence mortgagee's possession would continue to be permissive, and they could not prescribe any hostitle title to the land on the basis of adverse possession. Reliance was placed on Balwant and others v. The Deputy Director of Consolida tion and others (A. I. R. 1975 All. 295) and Sliiv Shankar Singh v. The Board of Revenue, U. P. Alla habad and others (1975 A. W. C. 522.), Learned counsel for the respondents on the other hand contended that on the expiry of the period prescribed for the institution of a suit for redemption and possession, the mortgagor's interest in the land got extinguished and the mortgagees in possession held the land thereafter in their own right. Reliance was placed on Jauhari and another v. Tunday (A. I. R. 1933 All. 21) Vidya Datta Dyundi and another v. Jagmandar Das and others (A. I. R. 1933 All. 31) Valliamma Champaka v. Sivathanu Pillai and others (A. I. R. 1964 Mad. 269) Jutendra Kumar Pal v. Devendra Chandra Saha and others (A. I. R. 1939 Cal. 50) Sheo Balak and others v. Syed Mojiz Abbas and others (A. L R. 1974 All. 435) Nabbu and another v. Shamshad Alt and others (A. I. R. 1955 N. U. C. All. 1763) Sita Ram Singh v. Gya Prasad and others (A. I. R. 1953 All. 620) and Girdhari Singh V. Sheo Nath Singh and others (A. I. R. 1955 N. U. C. All. 2698). Learned counsel further submitted that section 28 of the old Limitation Act provided for the extinction of one right and the creation of another. For this submission, reliance was placed on Yashwantrao Laxmanrao Ghatge and another v. Babu Rao Bala Yadav (dead) by L. Rs. (1978 (1) S. C. C. 669). We find force in the contention of the learned counsel for the respondents that as regards plots nos. 30/1 and 34, the respondents prescribed sirdari rights in their favour by remaining; in possession of the plot after the expiry of the period of sixty years provided for the suit for redemption by Article 148 of the old Limitation Act. Section 28 of the Limitation Act (Old) does not only bar a remedy but also extinguishes a right. In Yashwantrao Laxmanrao Ghatge and another v. Babu Rao Bala Yadav (dead) by L. Rs. (supra), it was held that at the deter mination of the period prescribed for the institution of a suit for possession by a person, his right to such property extinguishes and a converse right is created in favour of the other party, in Sheo Balak and others v. Syed Mojiz Abbas (supra) it was held that after expiry of the period of 60 years provided for a suit for redemption, the mortgage does not subsist, and the relationship of mortgagor and mortgagee between the parties comes to an end. See also "Sita Ram Singh v. Gaya Prasad and others"(supra). In Vidya Datia Dyundi and another v. Jagmandar Das and others" (supra) it was held that on the extinction of the rights of the mortgagors under section 28 of the Limitation Act, the mort gagees prescribe ownership rights in the property in view of the provisions of section 28 of the Limitation Act (Old). In "Valliamma Champaka v. Sivathanu Pillai and others" (supra). It was held that a mortgagor who allows his right of redemption to be barred by not instituting the suit as provided under Art. 148 of the Limitation Act, loses his title to the property, and the mortgagee thereafter prescribes an independent right of ownership to the property. The oases of "Balwant and others v. The Deputy Director of Consolidation and others (supra) and Sliiv Shankar Singh v. The Board of Revenue, U. P. Allahabad and others (1975 A. W. C. 522) are distinguishable. In Balwants case, the real question was whether the possession of a mortgagee whose rights had been extinguished under section 14(1) of the Zamindari Abolition and Land Reforms Act on or after the date of vesting could per se be held to be adverse to that of the mortgagor, and whether the period of limitation fora suit under Section 209 of the Zamindari Abolition and Land Reforms Act against such a person could commence from the date of vesting or from the date of demand of possession. The Full Bench, while holding that the mere extinguishment of the rights of a mortgagee under section 14(1) of Zamindari Abolition and Land Reforms Act did not per se constitute his possession as adverse to the mortgagor, observed that the period of limitation for a suit under section 209 commenced from the date of demand of possession, and not from the date of vesting. In Shiv Shanker Singh's case, this court held that the usufructuary mortgage of a company holding was void, and if the mortgagee continued in possession under such a mortgage, he could by remaining in possession for a period over twelve years prescribe mortgagee rights in the property. None of these cases touch the point in controversy in the instant case, namely, whether by the extinction of the rights of the mortgagor under section 28 of the Limitation Act (Old) the mortgagee could, by remaining in possession over the property in dispute for a period over twelve years prescribe independent rights of owner ship over the same. In Vidya Datta Dyundt's case (supra) it was clearly held that on the extinguishment of the right of the mortgagee under section 28 of the Limitation Act (Old) the mortgagee prescribed ownership rights in the property. In view of the cases discussed above, we uphold the contention of the learned counsel for the respondents that the respondents by being in posses sion for a period much over twelve years after 1936 over the property in dis pute had matured independent rights over it, and had become sirdars of the land in dispute on the coming into force of the U. P. Zamindari Abolition and Land Reforms Act. As regards plot no. 36, we are of the opinion that the case deserves to be remanded to the Deputy Director (Consolidation) for a fresh decision for the following reasons. The learned Deputy Director (Consolidation) did not consider the effect of the filing of the suit under section 12 of the U. P. Agricultrists Relief Act as to the nature of possession of the respondents over the disputed plot viz whether it ceased to be permission after the insti tution of the suit; he further did not consider the effect of the deposit made by the respondents in pursuance of the order passed by the trial court in the suit in the light of the observations made this Court in Jagnnath Prasad and others v. Smt. Chandrawati and another(A. I. R. 1970 All. 309) as to the satisfaction of the mortgage. In these circumstances the question to be considered was whether Section 202 or Section 209 of the Zamindari Abolition and Land Reforms Act applied to the case and if section 202 applied whether the requirements of that section were fulfilled in order to attract the provisions of section 204 of the Act. Since the Deputy Director (Consolidation) did not consider these questions in regard to plot no. 36 the rights of the parties need to be decided by him afresh. The petition, accordingly, partly succeeds and is allowed to the extent that in so far as it relates to plot no 36 the case is remanded to the Deputy Director of Consolidation to decide the rights of the parties afresh according to law in the light of the observations made. As regards plots nos. 30/1 and 34, the petition is dismissed. In view of the divided success of the parties they shall bear their own costs of this petition.