JAMNA DAS Vs. UMA SHANKER

JUDGEMENT

(1.) This is a suit on a simple mortgage executed on 13th November 1907 by Lal Muhammad. The suit is defended by the mortgagees under a second mortgage of the same property executed by Lal Muhammad and his wife, Zahuran, in February 1908. Money was left with the mortgagees under this deed to pay off the prior mortgage in suit, but the mortgagees did not pay it but brought a suit on their mortgage without impleading the plaintiff, the prior mortgagee.

(2.) The Court of first instance decreed the suit holding that Lal Muhammad was the de facto owner of the property and that even if he was not, Section 41 of the Transfer of Property Act applied.

(3.) The lower Appellate Court reversed the decree on the ground that the real owners of the property were not Lal Muhammad but his father-in-law, Muhammad Bakhsh, and after him his wife, Zahuran, and that Section 41 did not apply. The plaintiff comes here in second appeal. As regards the first point, viz., who was the real owner of the property, I prefer the finding of the Court of first instance. Muhammad Bakhsh, Zahuran and Lal Muhammad had none of them originally any real title to the property. They were trespassers but acquired a right by more than twelve years adverse possession. Muhammad Bakhsh held the property for many years, he took Zahuran, his daughter, and Lal Muhammad, her husband, to live with him and long after his death these two lived in the house. 1 think it might very fairly be argued that they were in adverse possession jointly after the death of Muhammad Bakhsh. I do not, however, think it is necessary to discuss the question, as, in my opinion, Section 41 of the Transfer of Property Act clearly applies.