HARBANS NARAIN SINGH Vs. RAMDHARI MAHTON

JUDGEMENT

(1.) IN the suit which is the subject-matter of this appeal the plaintiff alleged that on 23-3-1887, there was a usufructuary mortgage bond executed by Syed Ahmad Hussain in favour of Lachhman and Raghunath Mahto, the ancestors of the defendants first party, for a sum of Rupees 27/8/- with respect to 9 kathas 8 dhurs of land of survey plot No. 135, khata No. 266, in village Jurawanpur-Gopalpur. It is alleged further that Syed Ahmad Hussain sold the equity of redemption of the land to the ancestor of the plaintiff by a registered sale-deed dated 14-8-1890. The due date of redemption of the mortgage bond was 4-5-1890. On 23-5-1949, the plaintiff deposited the mortgage money in the court under Section 83 of the Transfer of Property Act, and on 19-5-1950, the plaintiff brought the present suit for redemption of the usufructuary mortgage and for possession of the land in question. The suit was contested by the defendants first party on various grounds. AH these grounds were rejected by the lower appellate court, except the contention of the defendants first party that the suit was barred by limitation. The lower appellate court accordingly dismissed the suit.

(2.) IN support of this appeal on behalf of the plaintiff-appellant the first ground put forward by learned Counsel is that on a proper construction of the document of the 23rd March, 1887. there was a usufructuary mortgage bond and not an anomalous mortgage as held by the lower appellate court. Counsel on behalf of the respondents conceded that the document was a usufructuary mortgage bond and so we shall proceed to decide this appeal on the ground that the document of 23-3-1887, was a usufructuary mortgage bond. The next contention advanced on behalf of the plaintiff-appellant is that the case is governed by Article 148 of the Limitation Act, and the starting point of limitation under that Article would be 23-5-1949, which is the date of deposit under Section 83 of the Transfer of Property Act. Learned Counsel further said that the present suit is a suit for possession under Section 62(b) of the Transfer of Property Act, which states as follows :