NARAIN DAS; DARSI Vs. RAJ NATH

JUDGEMENT

(1.) This appeal arises out of a suit upon a mortgage, dated the 8th of January, 1874. The suit was not instituted until the 13th of May, 1911. Both the courts below have granted a decree for sale of the mortgaged property. The defendants 6---11 have appealed. Their case is that they had acquired title by adverse possession as against the mortgagor and that, therefore, the present suit as. against them Is barred by limitation. Article 132 of the first schedule to the Limitation Act provides that a suit to "enforce payment of money charged upon immovable property may be brought within 12 years from the time when the money sued for became due." It is admitted here that, having regard to Section 31 of Act No. IX of 1908, the present suit, as a suit under article 132, is within time. The appellants contend that so far as they are concerned the suit must be governed by article 144, which provides that a suit for possession of Immovable property must be brought within 12 years from the time when the possession of the defendant becomes adverse to the plaintiff. I may point out at the commencement that the suit is not a suit for possession of immovable property. It is precisely the suit that is mentioned in article 132. I may also point out that the plaintiffs, on the admitted facts, could never have brought a suit for possession of the property against any one under article 144 until after a suit under article 132 had been first brought. In ray opinion a suit can always be brought under article 132 against all persons in possession whose possession Is subsequent to the date of the mortgage, provided that the suit itself is brought within 12 yean from the time upon which the money became due. The question would, I think, be free from all difficulty were it not for views taken by some of the courts of the decision of their Lordships of the Privy Council in the case of Koran Singh v. Bakar Ali Khan (1) (1882) I. L. R. 5 Ail 1. In that case a suit was brought upon mortgage bonds made in the months of January and October, 1862. Some of the defendants pleaded adverse possession. The High Court in Allahabad held that they had not been in adverse possession for more than 12 years and this decision was confirmed by their Lordships of the Privy Council, with the result that the plaintiffs got a decree for sale of mortgaged property. The curious part of the case is that it would appear that both in India and also before their Lordships of the Privy Council the suit was treated as a suit for possession, whereas in truth and in fact it was a suit for sale just like the present case. This may possibly have been due to the fact that the defendant s case was that his adverse possession had commenced before the mortgage was made. This was the argument which was put forward by the learned Counsel for the appellant when arguing the case before their Lordships of the Privy Council, and their Lordship? held on the facts of the case as proved that adverse possession did not commence until after the date of the mortgage. It, therefore, became quite unnecessary for their Lordships to decide what was the article of the Limitation Act which applied to the circumstances of the case. The case was decided against the defendants on the case they tried to substantiate. This decision of their Lordships of the Privy Council was cited in the case of Aimadur Mandal v. Makhan Lal Day (1). (1906) I. L. R. 33 Calc. 1015. The learned Chief Justice held that the case did not apply. There seems to have been a division of opinion in Madras. As mentioned before, my only difficulty is the decision of their Lordships of the Privy Council; but having regard to the fact that no argument on the question ever took place before their Lordships and that it was quite unnecessary to decide the point, I do not think that the case can be regarded as in any way a binding authority upon this Court on the point in issue. I accordingly would dismiss the appeal. Tudball, J.

(2.) I concur. The question now before us is die cussed at considerable length in the case of Nandan Singh v. Jumman (2). (1912) I. L. R. 34 All. 640. I fully agree with all that has been said there and have no reason to add anything further. Chamier, J.

(3.) I had to decide this question some years ago, and I then thought it was in reality governed by the decision of their Lordships of the Privy Council in Karan Singh v. Bakar Ali Khan (3) (1982) I. L. R. 5 All. 1. Both this Court and their Lordships of the Privy Council seemed to me to have held that time began to run, against the plaintiff under article 145 of the second schedule to the Limitation Act of 1871, from the date on which the possession of Karan Singh began, because that possesion was adverse to the plaintiff. What has since been put forward, as an explanation of the decision of this Court and of their Lordships of the Privy Council, does not seem to have occurred to any of the five Judges who dealt with the case in this Court, or to any of their Lordships who heard the appeal, and I must say that to my mind the explanation is neither sufficient nor satisfactory But as some learned Judges of this Court and of the Madras High Court have recently expressed the opinion that the decision of their Lordships should not be regarded as covering a case of this kind, I defer to their opinion with a view to secure uniformity of decision. If the decision of the Privy Council is not applicable to the case then in my opinion the case is clear On this ground I agree with the learned Chief Justice in1 dismissing the appeal.