SESHAMMA SHETTATI Vs. CHICKAYA HEGADE

JUDGEMENT

(1.) The proprietor of the land in question mortgaged it with possession to one Davappa Kamti in 1832. The plaintiffs, as the assignees of the equity of redemption, discharged the mortgage- debt and redeemed the mortgage in 1894. It is alleged in the plaint that the defendants have been holding the land as tenants from year to year under the usufructuary mortgagee, that the tenancy has been terminated by due notice to quit given by the plaintiffs and the suit is accordingly brought to eject them from the land. The defendants contend that the land was given to their assignors by the proprietor, apparently in conjunction with the mortgagee, on a permanent lease, that out of the total annual rent of Rs. 130-14-9 they have been paying Government assessment and the balance of Rs. 60 to the mortgagee and that subsequent to the redemption of the mortgage by the plaintiffs, they remitted the said sum of Rs. 60 by postal money order to the plaintiffs who refused to accept the same. They also confined that plaintiffs suit to eject them is barred by the law of limitation.

(2.) (sic)as alleged by the plaintiffs, the defendants came into possession of the land as tenants under the mortgagee, plaintiffs title to eject thorn is clear, whether the mortgagee let them into possession as tenants from year to year or professed to let them as tenants with a permanent right of occupancy. A permanent lease granted by a mortgagee can hold good only as against the mortgagee and that until the redemption of the mortgage. It cannot bind the mortgagor or persons claiming under him. Whether a tenancy created by a mortgagee will ipso facto terminate with the redemption of the mortgage or whether it can be determined only by the mortgagor giving notice to quit as in the case of a tenant from year to year, it is unnecessary to consider in this case, as in fact notice to quit has been given and the suit brought within four years after the redemption of the mortgage.

(3.) But if, as alleged by the defendants, their right of permanent occupancy is founded upon a lease granted by the mortgagor, the plaintiffs, of course, are bound by such lease and they cannot sue to eject the defendants. This is the substantial question in the case, but both the Courts have dismissed the suit as barred by the law of limitation, under Art. 144 of the Limitation Act, on the ground that the defendants have, to the knowledge of the plaintiffs, or rather their predecessor in title, been setting up a right of permanent occupancy for upwards of 12 years before date of suit and that plaintiffs became assignees of the equity of redemption, with notice of such claim on the part of defendants