KESHAB LAL GOSWAMI Vs. BHOLA NATH GANGOPADHYA

JUDGEMENT

(1.) The facts which have given rise to the present appeal are briefly these: one Kinu mortgaged 13 bighas of land to Sheik Jamit and Sheikh Chhakori in usufructuary mortgage 1293 B.S for Rs. 120. There was a sub mortgage of this property to two persons Ananta and, Doyal in 1295 and Ananta and Doyal were put in possession of the property. Kinu sold 8 bighas out of 13 bighas to "Ananta and Doyal in 1299 for Rs. 179 out of which Rs. 120 was paid to the mortgagee and the balance was taken by the mortgagor. Kinu had a sister Umeda by name and Umeda sold the disputed property, namely, 13 bighas to the plaintiff in 1327 B.S. On the strength of this purchase from Umeda the plaintiff brought the suit for declaration of his title to the property and for recovery of possession thereof. The plaintiff's claim was resisted on the allegations that there had been a sale of 8 bighas out of the 13 bighas to Ananta and Doyal and a subsequent sale of the remaining 5 bighas by an oral arrangement and that the defendants had purchased the entire 13 bighas in execution of a decree against Ananta and Doyal.

(2.) The Court of first instance dismissed the plaintiffs suit, There was an appeal by the plaintiff but it was unsuccessful. Against the decision of the Appellate Court the plaintiff came up to this Court confining, he wever, his claim only to 8 bighas and not to the whole 13 bighas of the property. And this Court by an order dated 3 December, 1920, set aside the decree passed by the lower Appellate Court and remanded the appeal to the lower Appellate Court for disposal after a consideration of certain questions that were formulated and in the lights of certain observations that were made in this Court's judgment. The directions that were given in the order of remand were in these terms: In the first place he (the Judge of the lower Appellate Court) will have to find whether in point of fact after the satisfaction of the mortgage-debt the 5 bighas of land which was not included in the kabala of 1893 came back to the possession of Kinu and thereafter Ananta and Doyal could not claim to be in possession of it.

(3.) If this question is found in the affirmative then it will not be necessary to go into other matters; and on a finding in the affirmative with regard to this point the learned Judge will be right in he lding that in that case the possession of Ananta and Doyal must have been either under the verbal sale or it was possession which was adverse to the mortgagor. If, he wever, the point is not decided in the affirmative then the learned Judge will have to find as a fact whether there was an oral sale in respect of the five bighas. If the question cannot be determined in the affirmative, then the question will arise as to whether the possession of Ananta and Doyal became adverse to that of Kinu and if so, at what point of time. It is not the law that simply because a mortgage-debt has been satisfied and the mortgagee continues in possession that the possession becomes adverse from the point of time of satisfaction of the mortgage debt. If any authority is needed for this proposition, reference may be made to the case Habibulla V/s. Abdul Hamid 13 Ind. Cas. 963 : 34 A. 261 : 9 A.L.J. 131. At p. 265 Page of 34 A. [Ed.] the learned Judge observed as follows: The possession of a mortgagee does not become adverse to the mortgagor merely because the mortgagee remains in possession after the mortgage-money has been satisfied out of the usufruct or has been otherwise paid off, much more is required to get time running against the mortgagor. The question whether the possession of the mortgage after the mortgage-debt has been satisfied is adverse to the mortgagor or not is always a question of animus or intention of the parties concerned. The whole of the circumstances will have to be considered in order to find out whether the mortgagees in the present case continued in possession as owners in respect of the property.