SUKRA ORAON Vs. JAGAT MOHAN SINGH

JUDGEMENT

(1.) IN the suit which is the subject-matter of this appeal the plaintiffs alleged that village Tenagaria formerly belonged to defendants 4 and 5 who gave two plots, namely, plots 387 and 388, appertaining to khata No. 3 in, zarpeshgi to one khatia orain and her daughter Musammat Mangri Grain on the 30th of Pus, 1988 Sambat, corresponding to the 23rd of Janury 1932: The consideration of the zarpeshgi was a sum of Rs. 152/-. Khatia Orain and Mangri Orain obtained possession as zarpeshgidara with regard to the two plots & it is said that possession was entered in the revenue survey khatian. It appears that Khatia Orain died, leaving her daughter Musammat Mangri as her sole heir, Mangri also died, leaving her husband Sato Oraon, and her minor son, Somra Oraon, defendants 1 and 2 as her heirs. On the 16th of June, 1947, Sato Oraon transferred the disputed plots to one Mangra Oraon father of defendants 3 to 3(b) by a registered sale-deed for a sum, of Rs. 200/-, alleging that the property was his raiyati land. It is'further alleged that on 19-11-1938, the Deogharias gave the entire village in zarpeshgi to the plaintiffs by a registered bond for Rs. 2097/- and subsequently, on 15-6-1942, the Deogharias sold the entire village to the plaintiffs. Defendant No. 1 contested the suit on the ground that he was a settled raiyat of the village and had acquired the right of occupancy in the disputed plots. It is also alleged on his behalf that he was granted a hukunraama and rent receipt by the former landlord. Defendants 3 to 3(b) also contested the suit on the ground that their father Mangra Oraon was a bona fide purchaser of the suit land and that they have got -the right of occupancy. The trial Court held that the plaintiffs could not get a decree for redemption but were entitled to receive rent as landlords. The learned Munsif accordingly dismissed the suit. The lower appellate Court reversed the decree of the learned Munsif and allowed the appeal on the ground that defendant No. 1, Sato, was cultivating the land on behalf of the zarpeshgidars and not as a raiyat. The lower appellate Court also found that defendants 3 to 3(b) had acquired no right of occupancy in the suit land and they were in the position of zarpeshgi dars". The lower appellate Court accordingly grantted a decree in favour of the plaintiffs for redemption of the land.

(2.) THE main argument On behalf of the heirs of defendant No. 3, who have preferred this appeal, is that the zarpeshgi deed dated 23-1-1932, was not a registered document and, therefore, the plaintiffs had no title to redeem. In support of this argument learned Counsel relied upon a decision of the High Court, Bishun Singh v. Sheodhari Das (AIR 1947 Pat 110 (A), and another decision of the High Court, Bhukhan Mian v. Radhika Kurmi Debi 19 Pat LT 489: (AIR 1938 Pat 479) (B). It was argued that the requirements of Section 59, Transfer of Property Act, had not been complied with and the entry in the record. of rights that the mortgagees were in possession in that capacity was not sufficient to establish the transaction of mortgage and the suit for redemption could not be entertained. It is necessary for us to state that the question with regard to the invalidity of the zarpeshgi had not been raised in the lower Courts and there is no finding of the lower Courts on this point. THE only question debated before the lower appellate Court was whether Sato or defendants Nos. 3 to 3(b) had acquired the status of an occupancy raiyat with regard to the disputed plots and on that question the lower appellate Court has discussed the evidence elaborately and has come to the finding that Sato was not in possession as a raiyat and that defendant No. 3, who was the purchaser from Sato, was also not in possession of the land as raiyat. On the contrary, the finding of the lower appellate Court is that Sato was cultivating the suit land on behalf of the zarpeshgidars and that defendants 3 to 3 (b) also were in possession of the land in the same capacity. It is true in this case that the survey record-of-rights has an entry to the effect that the zarpeshgi was effected by an unregistered document. It may be that the requirements of Section 59, T. P, Act, had not been complied with and that the zarpeshgi of 23-1-1932, is not legally valid. But the point raised by Mr. Mukherji on behalf of the respondents is that even if the mortgage was invalid, both Sato and his transferees were in possession of the land in the character of mortgagees from the year 1932 to the year 1949, for a period of more than twelve years. THE suit was brought on 27-1-1949, and the argument on behalf of the respondents is that the defendant-appellants were mortgagees by prescription and a decree for redemption has been rightly passed in favour of the plaintiffs by the lower appellate Court. In our opinion, this argument is well-founded. On the findings recorded by the lower appellate Court, it is clear that the mortgage was effected on 23-1-1932, and, according to the entry in the record-of-rights, the document of zarpeshgi was not a registered document. It has also been found by the lower appellate Court that the mortgagees entered into possession and Sato was in possession of the disputed land not in the character of a teanant but in the character of a mortgagee. THE lower appellate Court rejected the claim of the defendants that they were occupying the land as occupancy tenants. It is, therefore, clear that upon the finding of the lower appellate Court Khatia Grain and Manga Grain and Sato were in possession as mortgagees and, later on defendants 3 to 3(b), who were transferees from Sato, were also in possession of the land in the status of mortgagees, till the year 1949 when the present suit was brought. Upon these facts it must be held that in spite of the invalidity of the mortgage of 23-1-1932, the defendants had acquired the status of mortgagees by the doctrine of prescription. On behalf of the appellants reference was made to 19 Pat LT 489: (AIR 1938 Pat 479) (B), where there is an observation of Wort, J. that the rights of a mortgagee cannot be acquired by prescription. Manqhar Lall, J. also agreed with Wort, J. though he said in the course of his judgment that it was not necessary to consider whether the defendant can ever be held in law to be able to prescribe against a true owner his rights as a mortgagee. Indeed, this question was not necessary to be decided in that case, because the entry in the record-of-rights was of the year 1921 and the period of twelve years from that starting point had not expired when the suit was instituted in 1933. Any observation made by either Wort, J. or Manohar Lall, J. on this question is, therefore, in the nature of obiter and not in the nature of ratio decidendi. It is necessary, however, to "record our opinion that the view taken by their Lordships is not correct. If has been pointed out by Jagannadha Das, J. in Pursottam Das v. S.M. Desouza AIR 1950 Orissa 213 (C), that in 19 Pat LT 489: (AIR 1938 Pat 479) (B) both the learned Judges have failed to notice that the possession of a mortgagee under a void mortgage was permissive so far as the absolute title was concerned, and adverse only in so far as the limited interest was concerned, and the learned Judges have further failed to bear in mind that the mortgagee's interest was an interest was an interest in immoveable property and not merely a contractual security for a loan, and that adverse possession and prescription was as much a root of title to interest in immoveable property as a contractual document satisfying the requirements of the Transfer of Property Act, At page 216 Jagannadhada's J. has stated as follows : In Bhukhan Mian v. Radhika Kumari Debi, AIR 1938 Pat 479: 176 Ind Cas 35 (B), the learned Judges, however, held that a person cannot prescribe for a limited interest like a tenancy or a mortgage. With great respect, I am unable to persuade myself that that proposition is correct. On the facts of that case, the question itself did not arise for a direct decision as pointed out by Manohar Lall, J. at page 482, fight-hand column, where the learned Judge stated as follows: