SALIG RAM Vs. (BABU) GAURI SHANKAR TANDAN

JUDGEMENT

(1.) This appeal has arisen from a suit brought by the respondent for recovery of possession of plots 63, 64, 68 and 69 and for demolition ot certain constructions made by the defendants on those plots. The plaintiffs case was that the above mentioned plots were included in his zamindari which was in possession of a usufructuary mortgage for a considerable length of time, that foe redeemed, the mortgage in 1928 and found the defendants to be unlawful possession of portions of the aforesaid plots the latter having constructed certain buildings, such as "sahdari, latrine, etc.,. thereon. The suit was brought on 19th. June 1931, so that there could be no question of limitation if the plaintiff's cause of action accrued when he redeemed the usufructuary mortgage. The defence was that many of the buildings in question in the case were not situate in any of the plots above- referred to, that the defendants made the constructions that might be found, to be situate in those plots, with the permission of the usufructuary mortgagee 30 years before the suit. Limitation and adverse possession were also pleaded apparently on the ground that the cause of action for the present suit arose when the constructions, were made. The plaintiff was also said to be estopped by acquiescence in not objecting to the constructions when they were made.

(2.) A Commissioner was appointed by the trial Court. According to his report, a well and the northern portion of the "sahdari" were outside the plots. claimed by the plaintiff, arid the controversy was limited to the southern portion of the "sahdari," 5 "karis" of land and part of a "chabutra" and a "chappar," etc., which, according to the Commissioner's report, were situate in. one or other of the plots already referred to. Both the Courts below found that the plaintiff was not estopped by any acquiescence, as the defendants, constructed the buildings in dispute, with their eyes open and in full knowledge and disregard of the plaintiff's right. No question of estoppel by acquiescence was argued in second appeal. Both the Courts below found that the defendants failed to establish that they had made the constructions with, the permission of the mortgagee. The lower appellate Court expressed the opinion that the defendants made the constructions without obtaining the mortgagee's permission, but the mortgagee did not care to institute a suit for ejectment.

(3.) As regards limitation and adverse possession, both Courts held that adverse possession against the mortgagee is not adverse possession against the mortgagor, who can institute a suit for possession against a trespasser within 12 years after redemption. This view was controverted by the learned advocate for the appellant in second appeal. It was argued on the authority of Periya Aiya Ambalam V/s. Shunmugasundaram 1914 Mad. 334, that adverse possession against the mortgagee might also be adverse against the mortgagor if a trespasser takes possession in denial of the mortgagor's right. Certain observations occurring in that case, are strongly relied upon but in my opinion they should not be divorced from the facts of the case which was one in which the mortgagor had. sued for a declaration of his right during the subsistence of a usufructuary mortgage. The defendants in that case had trespassed into a house which had been mortgaged by the plaintiffs for a term of 20 years. The plaintiffs sued for a declaration of their right, reckoning limitation from a certain date. It was alleged that the plaintiffs cause of action had arisen on a prior date. The questions referred to the Full Bench were: (1) Where a trespasser dispossesses a mortgagor in possession (the mortgage being simple), or a mortgagee in possession (where the mortgage is usufructuary), is such possession of the trespasser adverse against the simple mortgagee in the one case or against the mortgagor who is not entitled to possession in the other case? (2) Whether a fresh cause of action for a suit for declaration of title arises from each distinct denial of the plaintiff's title so long as, the title itself is not lost, or whether there cannot arise any new causes of of action based on new denials of title after the first denial.