NILABATI PADHIANI Vs. PIRABATI PADHIANI

JUDGEMENT

(1.) DEFENDANTS are the appellants. On November 23, 1960, the plaintiffs fifed the suit for redemption and possession of the suit land under an oral mortgage of July 9, 1939. The defence in the suit js that plaintiff No. 1 as Karta of the plaintiffs family and as guardian of the minor plaintiffs settled the suit lands with deft. No. 1 for Rs. 13/- and 4 Khandis of paddy as consideration for the settlement and executed a rayati patta on July 9, 1939 and put defendant No. 1 in possession of the same. The defendant also pleaded that they perfected title by adverse possession and the suit is barred by limitation.

(2.) THE trial Court dismissed the plaintiff's suit on the finding that the suit was barred by limitation and that the defendants acquired title by adverse possession. The trial Court also found that the suit land was settled with defendant No. 1 as aforesaid. In appeal, the learned lower appellate Court reversed the decision of the trial Court and decreed the suit in favour of the plaintiffs on the finding that the suit is not barred by limitation; that possession of the mortgagee was permissive and not adverse. The learned lower appellate Court disbelieved the story of settlement of the suit land with the defendants as alleged. He found that the oral mortgage had been proved. Hence this Second Appeal.

(3.) THE undisputed position in law is that possession of persons having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land, not being referable to any legal title is prima facie adverse to legal title "of the owners of the land from the very moment such persons took possession of the land under the invalid grant. The possession of such ah alienee must be deemed to be adverse from that date and it must continue to be adverse.