TRAILOKYA NATH DE Vs. BISWANATH PRODHAN

JUDGEMENT

(1.) 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.

(2.) 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 under Section 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, under Section 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.

(3.) 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.