PRAHLAD SINGH Vs. BARUMAL

JUDGEMENT

(1.) This is a Letters Patent appeal by the plaintiffs against a judgment of a learned single Judge of this Court dismissing the suit of the plaintiffs with costs. The two lower Courts had decreed the suit of the plaintiffs. The plaint sets forth that Parbhu Dayal, the adopted son of Khushi Ram, was a zamindar and also the owner and in possession of a shop in a village and that under a sale deed of 23rd January 1911, Parbhu Dayal sold the shop together with its site to the plaintiffs and that Mt. Manohari lived in the shop as a ryot at the will of Parbhu Dayal and that she had as a ryot no right of transfer of any sort in the shop; and further that Mt. Manohari executed a sale deed on 16 April 1912, registered on 19 April 1912, by which she sold this shop to the defendant. Accordingly the plaintiffs ask for possession of the shop. In the written statement the defendant set up the case that he had been in possession of the shop under a usufructuary mortgage deed of 23 March 1908, and that he was in possession of the shop when Mt. Manohari executed a sale deed of her equity of redemption to him on 16 April 1912. Accordingly the defence claimed that the suit was time barred because of 12 years adverse possession. This was the sole question on which the learned single Judge of this Court dismissed the suit of the plaintiffs.

(2.) The suit was brought on 16 April 1924, that is, within 12 years from the sale deed but more than 12 years from the deed of usufructuary mortgage.

(3.) The question before us is a very simple one of law: Is it permissible for a person claiming adverse possession to add the period of his possession as usufructuary mortgagee to the period of his possession as a vendee from his usufructuary mortgagor? For the appellants it was argued that it is not permissible, because the nature of his title during his period as usufructuary mortgagee is different from the nature of his title as vendee. Reference was made by the learned Counsel for the appellants to Lahuri Bibee V/s. Bejoy Chand Mahatap [l913] 19 I.C. 367. But in that case it was merely held that a defendant who is claiming adverse possession as lessee could not add to his period as lessee the period which he alleged was adverse possession against his lessor, because there was no authority for that proposition. Reference was also made to the case of Umrunnissa V/s. Muhammad Yar Khan [1881] 3 All. 24 (F.B.) but in that case it was merely held that you cannot treat the receipt of malikana allowance from a mortgagee as equivalent to the possession for the purposes of adverse possession of the recipient. Neither of these cases has any bearing at all on the proposition before us.