DIGAMBER SHRIDHAR DHEKNE Vs. RAMRATAN RAGHUNATH

JUDGEMENT

(1.) THESE appeals arise out of two suits filed in 1931 and 1939 in the Court of the Joint Subordinate Judge, Poona, namely, suit No.1540 of 1931 and suit No.162 of 1939. In the first suit the plaintiffs claimed to have purchased city survey No.320 and other survey numbers situate at Somwar Peth, Poona, in darkhast No.2 of 1920 in September 1923 and they alleged that they could get possession only of city survey No.316 owing to the obstruction made by the defendant when delivery of possession of the properties which had been sold in the darkhast was to be made. In suit No.162 of 1939, it was alleged that plaintiff No.1 had similarly purchased city survey No.318 in the same darkhast proceedings and that he was obstructed from getting possession by defendant No.2 but that he took forcible possession of this survey number some days thereafter and remained in possession till 1937 when he was dispossessed by the defendant. Both these suits were, accordingly, for possession from the defendant. The main part of the defence was that the plaintiffs were never in possession within twelve years preceding the suit, and that the defendant's predecessor-in-title Anandibai had been in adverse possession for many years and had perfected her title. Both the Courts below have found that the suits were barred by limitation, and therefore the suits as well as the appeals which were heard by the Assistant Judge, Poona, were dismissed with costs. THESE suits were based on facts which go back to 1873 when the owner of the lands, in suit, one Ramgir Guru Ranchodgir Gosavi, mortgaged them, as well as other properties, with possession to one Amritrao Daphale. The facts have been stated at length in the lower appellate Court's judgment and here I shall state the more material and salient facts. The mortgagee Amritrao Daphale died in 1892, leaving two widows, Laxmibai, who died in 1895, and Anandibai. In 1893 Laxmibai adopted Ramrao as the son of her husband, but after her death Anandibai remained in possession. In spite of Ramrao's adoption her name continued to be shown in the Municipal and City Survey registers and records as the holder and she continued to pay the municipal taxes up to 1922 when she sold city survey Nos. 317, 318, 319 and 320 to the defendant. In 1892 one Lakhmichand to whom Amritrao was indebted brought a suit against the latter and obtained a money decree. In a subsequent darkhast Lakhimchand got the properties in suit as well as other properties sold and purchased them himself. There was a sale certificate and a tabe yadi, exhibit 52, was issued in 1894. Thereafter Lakhmiechand sub-mortgaged with possession the properties to one Jairam Dangare but continued to remain in possession thereof under a rent note. In 1907 Jairam's sons brought the suit for possession against Lakhmichand's sons and obtained a decree in their favour. In darkhast proceedings they obtained a tale yadi, exhibit 54, in their favour dated April 13, 1908, the possession of at least some of the properties in suit having been delivered to them. In 1910, Ramgir's chela Someshwargir sold the equity of redemption to one Trimbakrao Khurjekar. and in 1912 Khurjekar brought a redemption suit against the Dangares and some others, the latter not including Anandibai. In 1915 there was a redemption decree allowing possession to Khurjekar and ordering instalments under the Dekkhan Agriculturists' Relief Act. That decree was varied as to instalments by the High Court in 1917. In 1919 Khurjekar filed a darkhast for possession under the decree and possession at least of some of the properties was delivered to him under a tale warrant, exhibit 56, dated December 19, 1919, issued in his favour; the bailiff's report shows that Anandibai's mukhtyar obstructed the delivery of possession with regard to survey No.320. In 1920 Khurjekar brought a suit against Anandibai; but the plaint appears to have been returned to him in 1924 for presentation to the proper Court having jurisdiction. It was refiled some time later, but ultimately the suit was dismissed for default in 1926. In 1922 Anandibai sold city survey Nos. 317, 318, 319 and 320 to the defendant and handed over possession to him. In 1920 instalments not having been paid as decreed by the High Court's decree of 1917, the Dangares filed darkhast No.2 of 1920 against Khurjekar, and as a result the properties in suit and other properties were sold to the plaintiff on September 19, 1923. The plaintiffs, however, got possession of survey No.316 only and the defendant obstructed the delivery of possession of city survey Nos. 318 and 320. In 1930 the defendant prosecuted plaintiff No.2 for trespass in respect of city survey No.318. On September 25, 1931, suit No.1540 of 1931 was filed for possession of city survey No.320. In 1934 Vijayasingrao, son of Ramrao, the adopted son of Amritrao Daphale, sued the defendant for possession of city survey Nos. 317 and 320 on the allegation that Anandibai's possession had been merely as a widow and that the alienation by her was, therefore, invalid. It was held in that suit that Anandibai had perfected her title by adverse possession against the mortgagee and this decree was confirmed by the High Court, which held that adverse possession had commenced in 1894. The second suit, No.162 of 1939, was filed on February 10, 1939, for possession of city survey No.318.

(2.) WE may begin with two findings of fact arrived at by the lower appellate Court which it is not possible for this Court in second appeal to disturb, namely, (1) that Anandibai and the defendant have been in uninterrupted possession of city survey Nos. 318 and 320 since 1894 and that neither the plaintiffs nor their predecessors-in-title have been in possession of either property since that year, and (2) that Trimbakrao Khurjekar, who purchased the equity of redemption in 1910, became aware of the fact that Anandibai was in actual possession of those two city survey numbers as in her own right as owner; the latter passage, which occurs in paragraph 17 of the lower appellate Courts judgment, presumably means that Trimbakrao Khurjekar became aware of the said fact on his purchase of the equity of redemption. The plaintiff, by virtue of his purchase at the Court auction in Dangare's execution proceedings on September 19, 1923, can now claim to be the owner not only of the equity of redemption which Khurjekar purchased in 1910 but also of the mortgagee's rights which were extinguished on the mortgage-debt having been satisfied by the proceeds of the sale. When in 1894 Anandibai held possession of the suit properties even after Ramrao's adoption-it being nobody's case, as pointed out by the lower appellate Court, that her possession was permissive in any way-her possession against Ramrao, the mortgagee's son, became adverse, and it continued to remain adverse to Lakhmichand and the Dangares who became subsequently entitled to possession. This is conceded by Mr. Joshi. The question arises whether Anandibai's and the defendant's possession should not also be regarded as adverse to the mortgagors, that is, Ramgir, Someshwargir and Khurjekar and, if so, in case the latter's rights were not extinguished by the date of the court-sale, whether by the date of the first suit, that is. . September 25, 1931, the mortgagor's rights had became extinguished by the adverse possession of Anandibai and the defendant. It cannot, however, be presumed that either Ramgir or Someshwargir knew of the adoption of Ramrao, and it might be that they thought that Anandibai was in possession as the holder of the mortgagee's rights after the death of Lakhmichand. Such a position can also be ascribed to Trimbakrao Khurjekar after his purchase of Someshwargir's rights in 1910, but in our opinion, such a position could not extend beyond 1912 when he brought a redemption suit against the Dangares and others but omitted to include Anandibai among the defendants. If he had regarded Anandibai as the holder of the mortgagee's rights, he would undoubtedly have made her a defendant. Thus at the date of the suit in 1912 at least, or at the latest, he did not regard Anandibai as a person in possession of the mortgagee's rights. The lower appellate Court has found as a fact that Trimbakrao Khurjekar must have become aware of the fact that Anandibai was in actual possession of two city survey numbers as in her own right, that is, as owner. Anandibai 's possession, therefore, must prima facie be said to be adverse since 1912 against the mortgagor. Such possession, however, had not extended for twelve years at the date of the plaintiff's purchase on September 19, 1923, the date when under Section 65 of the Civil Procedure Code the properties sold vested in him; but that period was completed shortly thereafter.

(3.) THE above are the principal eases of our High Court in which the question under consideration has been dealt with. It will be seen that apart from Vithoba bin Chabu v. Gangaram bin Biramji, and the remarks of Telang J. and Macleod C. J. in three of the cases, the principle of the decision in Tarubai v. Venkotrao has generally been acted upon and that in the latest of the cases, the observations relied on by Mr. Joshi have not been acted upon. THE Madras High Court in a full bench case, in Periya Aiya Ambalam v. Shunmuga Sundaram, (1918) I. L. R. 38 Mad. 903, F. B. has declared itself in agreement with the decisions in Puttappa v. Timmaji, Chinto v. Janki and Tarubai v. Venkatrao. Other cases considered in the said case, which are in conformity with the conclusion of their Lordships, are Ammu v. Ramkrishna Sastri, (1879) I. L. R. 2 Mad. 226 Chathu v. Aku, (1883) I. L. R. 7 Mad. 26 Mussad v. THE Collector of Malabar, (1886) I. L. R. 10 Mad. 189 and Ismdar Khan v. Ahmad Husain. (1907) I. L. R. 30 All. 119 THE effect of the Madras decisions has been thus stated at p. 912: According to these Madras cases, therefore, where a stranger dispossesses a mortgagee in possession, whether adverse possession will run against the mortgagor or not depends upon the fact whether there was dispossession of the mortgagor also. Mere dispossession of the mortgagee will not amount to such adverse possession; there must be at least notice to the mortgagor that possession is held against him also. THE effect of the Bombay eases and of Ismdar Khan v. Ahmad Husain has been thus summarised at p. 914: THEse cases establish that an equity of redemption may be lost by adverse possession: but for that purpose it is not sufficient for a trespasser, who has ousted a mortgagee, to prove that possession is held on an exclusive title, without also showing that it was acquired and retained with an assertion of an adverse title to the knowledge of the mortgagor. THEir Lordships also came to the conclusion that all the decisions mentioned were in accordance with the English law and were also consistent with principle: When the owner of the property in possession is dispossessed, the trespasser's possession is clearly adverse to him from its inception, as, to his knowledge, the property is held against his will, and he must assert his right within twelve years of his dispossession. But if his mortgagee, who has been placed in possession by him, is followed by another person there is no presumption in law that such possession was taken without any right. He may be an assignee of the mortgagee, or one who purchases the mortgage as a mortgage; or he may be an adverse claimant to the mortgage right; where more than one inference may be drawn, that inference should not be drawn which imputes a wrongful act to a person. THE defendant has therefore to show that he took possession of his property as absolute property in contradistinction to mortgage property. With respect I do not think that the principles applicable to cases such as the present could have been stated more clearly or in better language; and this examination of the Madras cases shows, in my opinion, that no distinction can be drawn between conclusions reached by our High Court in Tarubai v. Venkatrao, and that reached by the full bench of the Madras High Court in Periya Aiya Ambalam v. Shunmuga Sundaram.