DIGAMBER SHRIDHAR DHEKNE Vs. RAMRATAN RAGHUNATH

JUDGEMENT

(1.) These appeals arise out of two suits filed in 1931 and 1939 in the Court of the Joint Subordinate Judge, Poona, namely, suit No. 1540 of 1931 and suit No. 162 of 1939. In the first suit the plaintiffs claimed to have purchased city survey No. 320 and other survey numbers situate at Somwar Peth, Poona, in darkhast No. 2 of 1920 in September 1923 and they alleged that they could get possession only of city survey No. 316 owing to the obstruction made by the defendant when delivery of possession of the properties which had been sold in the darkhast was to be made. In suit No. 162 of 1939, it was alleged that plaintiff No. 1 had similarly purchased city survey No. 318 in the same darkhast proceedings and that he was obstructed from getting possession by defendant No. 2 but that he took forcible possession of this survey number some days thereafter and remained in possession till 1937 when he was dispossessed by the defendant. Both these suits were, accordingly, for possession from the defendant. The main part of the defence was that the plaintiffs were never in possession within twelve years preceding the suit, and that the defendant's predecessor-in-title Anandibai had been in adverse possession for many years and had perfected her title. Both the Courts below have found that the suits were barred by limitation, and therefore the suits as well as the appeals which were heard by the Assistant Judge, Poona, were dismissed with costs. These suits were based on facts which go back to 1873 when the owner of the lands, in suit, one Ramgir Guru Ranchodgir Gosavi, mortgaged them, as well as other properties, with possession to one Amritrao Daphale. The facts have been stated at length in the lower appellate Court's judgment and here I shall state the more material and salient facts. The mortgagee Amritrao Daphale died in 1892, leaving two widows, Laxmibai, who died in 1895, and Anandibai. In 1893 Laxmibai adopted Ramrao as the son of her husband, but after her death Anandibai remained in possession. In spite of Ramrao's adoption her name continued to be shown in the Municipal and City Survey registers and records as the holder and she continued to pay the municipal taxes up to 1922 when she sold city survey Nos. 317, 318, 319 and 320 to the defendant. In 1892 one Lakhmichand to whom Amritrao was indebted brought a suit against the latter and obtained a money decree. In a subsequent darkhast Lakhimchand got the properties in suit as well as other properties sold and purchased them himself. There was a sale certificate and a tabe yadi, exhibit 52, was issued in 1894. Thereafter Lakhmiechand sub- mortgaged with possession the properties to one Jairam Dangare but continued to remain in possession thereof under a rent note. In 1907 Jairam's sons brought the suit for possession against Lakhmichand's sons and obtained a decree in their favour. In darkhast proceedings they obtained a tale yadi, exhibit 54, in their favour dated April 13, 1908, the possession of at least some of the properties in suit having been delivered to them. In 1910, Ramgir's chela Someshwargir sold the equity of redemption to one Trimbakrao Khurjekar. and in 1912 Khurjekar brought a redemption suit against the Dangares and some others, the latter not including Anandibai. In 1915 there was a redemption decree allowing possession to Khurjekar and ordering instalments under the Dekkhan Agriculturists Relief Act. That decree was varied as to instalments by the High Court in 1917. In 1919 Khurjekar filed a darkhast for possession under the decree and possession at least of some of the properties was delivered to him under a tale warrant, exhibit 56, dated December 19, 1919, issued in his favour; the bailiff's report shows that Anandibai's mukhtyar obstructed the delivery of possession with regard to survey No. 320. In 1920 Khurjekar brought a suit against Anandibai; but the plaint appears to have been returned to him in 1924 for presentation to the proper Court having jurisdiction. It was refiled some time later, but ultimately the suit was dismissed for default in 1926. In 1922 Anandibai sold city survey Nos. 317, 318, 319 and 320 to the defendant and handed over possession to him. In 1920 instalments not having been paid as decreed by the High Court's decree of 1917, the Dangares filed darkhast No. 2 of 1920 against Khurjekar, and as a result the properties in suit and other properties were sold to the plaintiff on September 19, 1923. The plaintiffs, however, got possession of survey No. 316 only and the defendant obstructed the delivery of possession of city survey Nos. 318 and 320. In 1930 the defendant prosecuted plaintiff No. 2 for trespass in respect of city survey No. 318. On September 25, 1931, suit No. 1540 of 1931 was filed for possession of city survey No. 320. In 1934 Vijayasingrao, son of Ramrao, the adopted son of Amritrao Daphale, sued the defendant for possession of city survey Nos. 317 and 320 on the allegation that Anandibai's possession had been merely as a widow and that the alienation by her was, therefore, invalid. It was held in that suit that Anandibai had perfected her title by adverse possession against the mortgagee and this decree was confirmed by the High Court, which held that adverse possession had commenced in 1894. The second suit, No. 162 of 1939, was filed on February 10, 1939, for possession of city survey No. 318.

(2.) We may begin with two findings of fact arrived at by the lower appellate Court which it is not possible for this Court in second appeal to disturb, namely, (1) that Anandibai and the defendant have been in uninterrupted possession of city survey Nos. 318 and 320 since 1894 and that neither the plaintiffs nor their predecessors-in-title have been in possession of either property since that year, and (2) that Trimbakrao Khurjekar, who purchased the equity of redemption in 1910, became aware of the fact that Anandibai was in actual possession of those two city survey numbers as in her own right as owner; the latter passage, which occurs in paragraph 17 of the lower appellate Courts judgment, presumably means that Trimbakrao Khurjekar became aware of the said fact on his purchase of the equity of redemption. The plaintiff, by virtue of his purchase at the Court auction in Dangare's execution proceedings on September 19, 1923, can now claim to be the owner not only of the equity of redemption which Khurjekar purchased in 1910 but also of the mortgagee's rights which were extinguished on the mortgage-debt having been satisfied by the proceeds of the sale. When in 1894 Anandibai held possession of the suit properties even after Ramrao's adoption-it being nobody's case, as pointed out by the lower appellate Court, that her possession was permissive in any way-her possession against Ramrao, the mortgagee's son, became adverse, and it continued to remain adverse to Lakhmichand and the Dangares who became subsequently entitled to possession. This is conceded by Mr. Joshi. The question arises whether Anandibai's and the defendant's possession should not also be regarded as adverse to the mortgagors, that is, Ramgir, Someshwargir and Khurjekar and, if so, in case the latter's rights were not extinguished by the date of the court-sale, whether by the date of the first suit, that is.. September 25, 1931, the mortgagor's rights had became extinguished by the adverse possession of Anandibai and the defendant. It cannot, however, be presumed that either Ramgir or Someshwargir knew of the adoption of Ramrao, and it might be that they thought that Anandibai was in possession as the holder of the mortgagee's rights after the death of Lakhmichand. Such a position can also be ascribed to Trimbakrao Khurjekar after his purchase of Someshwargir's rights in 1910, but in our opinion, such a position could not extend beyond 1912 when he brought a redemption suit against the Dangares and others but omitted to include Anandibai among the defendants. If he had regarded Anandibai as the holder of the mortgagee's rights, he would undoubtedly have made her a defendant. Thus at the date of the suit in 1912 at least, or at the latest, he did not regard Anandibai as a person in possession of the mortgagee's rights. The lower appellate Court has found as a fact that Trimbakrao Khurjekar must have become aware of the fact that Anandibai was in actual possession of two city survey numbers as in her own right, that is, as owner. Anandibai's possession, therefore, must prima facie be said to be adverse since 1912 against the mortgagor. Such possession, however, had not extended for twelve years at the date of the plaintiff's purchase on September 19, 1923, the date when under Section 65 of the Civil Procedure Code the properties sold vested in him; but that period was completed shortly thereafter.

(3.) Mr. Joshi has contended that in the case of a possessory mortgage, the mortgagor not being entitled to possession prior to redemption, the possession of a trespasser cannot be adverse to the mortgagor, though it can undoubtedly be adverse to the mortgagee. For this proposition he has relied, first, on the definition of adverse possession by Markby J. in Bejoy Chunder Banerjee V/s. Kally Prosonno Mookerjee, (1878) I.L.R. 4 Cal. 327, 329 next on Vithoba tin Chain V/s. Gangaram bid Biramji, (1875) 12 B.H.C. 180 and the judgment of Mr. Justice Telang in Chinto V/s. Janki, (1892) I.L.R. 18 Bom. 51 and lastly, on two dicta of Macleod C.J. in Gitabai V/s. Krishna Malhari (1920) I.L.R. 45 Bom. 661 and Tarabai V/s. Dattaram (1924) I.L.R. 49 Bom. 539 Markby J.'s definition of adverse possession is as follows (p. 329) :- By adverse possession I understand to be meant possession by a person holding the land, on his own behalf, of some person other than the true owner, the true owner having a right to immediate possession. This definition has been accepted by our High Court in Bhavrao V/s. Rakhmin (1898) I.L.R. 23 Bom. 137, F.B.. In Chinto V/s. Janki, Mr. Justice Telang was strongly inclined to hold that the mortgagor, in the case of a possessory mortgage, had no right to recover possession as long as the mortgage money had not been paid off. This view has been followed in Vinayak Janardan V/s. Mainai (1894) I.L.R. 19 Bom. 138. In Gitabai V/s. Krishna Malhari (1920) I.L.R. 45 Bom. 661 Macleod C.J. observed as follows (p. 665) :- It appears to me the simple question is, could the mortgagor in this case have filed a suit against the defendant for ejectment before he redeemed the mortgage. For it seems that if the mortgagor could not file the suit until he redeemed, it would be absurd to say that time had begun to run against him until he did redeem, and that seems to have been the opinion of the Allahabad High Court in Muhammad Husain V/s. Mul Chand. (1904) I.L.R. 27 All. 395 In Tarabai V/s. Dattaram (1924) I.L.R. 49 Bom. 539 again, Macleod C.J. said (p. 540) :- In the case of a possessory mortgage where possession has been delivered to the mortgagee, a trespasser obtaining possession may hold adversely to the mortgagee but not to the mortgagor. These views are opposed to the decisions in Puttappa V/s. Timmaji, (1889) I.L.R. 14 Bom. 176 Tarubai V/s. Venkatrao, (1902) I.L.R. 27 Bom. 43 and Gurunath Balwant V/s. Suryakant Dhunderao (1939) 42 Bom. L.R. 399. I intend referring to the material aspects of these cases of our High Court in chronological order. In Vithoba bin Chabu V/s. Gangaram tin Biramji,, it was held that there can be no adverse possession of the equity of redemption. There the mortgagor sued his mortgagee to redeem, joining as defendant the person in possession of the mortgaged land, who claimed to hold adversely against both the mortgagor and the mortgagee. It was held that the possession of the last defendant being a trespass, not on the possession of the mortgagor who had only the equitable estate, but on the possession of the mortgagee in whom the legal estate was vested, and as the person in possession did not pretend to be a bona fide purchaser from the mortgagee, the trespasser could only succeed to such estate as the mortgagee possessed and that consequently the limitation applicable to the suit was sixty years. It was pointed out in Tarubai V/s. Venkatrao, at p. 55, that this ease was an instance in which the mortgagor's interest had not been assailed by the trespasser, and at p. 56 of the same case it was further pointed out that in this case there was nothing beyond the bare ouster to show that the mortgagor had any reason to suppose a possession hostile to him had commenced. The case of Puttappa V/s. Timmaji was decided on the basis of the English case of Cholmondeley V/s. Clinton, (1821) 4 Bligh. 1 and it was held that the possession of the tresspasser may be adverse to the mortgagor. In Chinto V/s. Janki, Fulton J. took the view that although the possession of a trespasser may undoubtedly be adverse to the mortgagor, the burden of proving when it became so rests on the former and that prima facie by his act of possession (this was a case of possessory mortgage) he merely ousts the mortgagee who is entitled to hold the property. As the trespasser had not in this case discharged the burden of proving when his possession had become adverse to the mortgagor, an issue on this point was sent down to the trial Court. Telang J., however, was inclined to think that the mortgagor had no right to recover possession as long as the mortgage money had not been paid off, but he agreed in remitting the issue mentioned above to the lower Court. In Vinayak, Janardan V/s. Mainai, an inamdar had sued to eject the defendants from certain lands which were mirasi lands, the mirasdar, one Ganu, having executed a mortgage in favour of the defendants who later had redeemed the mortgage at a time when Ganu's tenure had not come to an end. In this case the judgment of Telang J. in Chinto V/s. Janki was relied on. and in view of the fact that the inamdar would not be prejudiced by his not being able to claim possession against the defendants by the latter's possession as trespasser against the persons entitled to possession under the mirasi tenure, the suit was dismissed. In this case the Court was concerned with the question whether the mirasdar Ganu's interests or rights were affected by the adverse possession of the defendants, and there was, therefore, no invasion of the indamdar s, that is, the plaintiff s, rights at all. It was, therefore, held that the inamdar had no cause of action. In Tarubai V/s. Venkatrao, the facts were these. The plaintiffs, who sued to redeem a mortgage with possession of a certain land dated 1866, were the daughters and grandson of the mortgagor Khutubsha, widow of one Kondi Aga. The first defendant was the grandson and heir of the mortgagee Nageshrao and the second and third defendants were nephews of Kondi Aga. They denied that the main plaintiffs, being females, had any right to the property, and they alleged that they had been in possession since 1885 under an agreement with Nageshrao, the mortgagee; and they contended that the plaintiffs claim was, therefore, barred by limitation, the suit having been filed more than 12 years after the date on which the defendants commenced their possession in 1885. It appeared that in 1885 defendants Nos. 2 and 3 had claimed to be heirs of Kondi Aga, the mortgagor's husband, and had entered upon the land. The mortgagee, therefore, filed the suit against them which was settled by an agreement in the same year, whereby defendants Nos. 2 and 3 undertook to pay off the mortgage and it was agreed that they should remain in possession of the land. A decree based on the agreement was made in the same year 1885 but the instalments of mortgage-debt which were payable thereunder were not paid after 1897. Shortly thereafter, the plaintiffs filed the suit to redeem the mortgage of 1886 and to recover possession of the lands. It was held on the evidence that the possession of the defendants was not adverse to the plaintiffs, inasmuch as there was no notice or knowledge, or circumstance that could have given notice or knowledge, to the plaintiffs, the mortgagors, that the defendants possession was a displacement of their rights, they having no reason to know that their rights were invaded, and that until they had such reason there could be no necessity for them to take action. Batty J., who delivered an elaborate and carefully considered judgment, began, with the consideration of the definition of adverse possession by Markby J. in Be joy Chunder Banerjee V/s. Kally Prosonno Mookerjee, (1878) I.L.R. 4 Cal. 327 and observed (p. 51) :- The last five words of this passage ( the right to immediate possession ) are essential. For if the true owner has no right to immediate possession, it is practically immaterial to him who is in possession. Having no right himself to possession he cannot eject the person in possession : contra non valentem agere non currit preescriptio. A claim, not divulged or communicated or manifested by overt acts affecting existing rights, gives no apparent cause of action, and no article of the Limitation Act appears to apply before a right to sue accrues. He pointed out that in Vithoba bin Chabu V/s. Gangaram bin Bisamji (1875) 12 B.H.C.R. 180 there had been nothing beyond the bare ouster of the mortgagee to show that the mortgagor had any reason to suppose a possession hostile to him commenced. In Ammu V/s. Ramakrishna Sasiri, (1879) I.L.R. 2 Mad. 226 which was a case in which the mortgagor's rights had been held to have been assailed and where the mortgagor had sued the trespasser fourteen years after the trespass had been brought to his notice, it was held that the dispossession did not affect the mortgagee alone, but was avowedly intended to deprive the mortgagor of all control, so that his rights would have been equally infringed thereby if there had been no mortgagee in the case at all and, therefore, amounted to possession adverse to the mortgagor. This was followed by a long discussion of Chinto V/s. Janki, (1892) I.L.R. 18 Bom. 51 and with reference to Markby J.'s definition of adverse possession it was pointed out that in that case the question arose whether the plaintiff was entitled to immediate possession. In the words of Batty J. (p. 57), ...the answer to this question, arrived at after considering the analogous case of the effect of dispossession upon a landlord during the currency of a tenant's lease was, that the mortgagor would be entitled to claim immediate possession if the ouster of the mortgagee were such as to operate as a virtual dispossession of the mortgagor. This it could not be, unless it operated in some way to affect the mortgagor immediately by invading some right then necessarily exercisable by him. The effect of the examination of several cases including Chinto V/s. Janki, and other English cases was thus stated (p. 65) :- Thus the adverse possession of a right may be entirely distinct from the adverse possession of tangible immoveable property; a right to sue in respect of the former arising possibly on open and avowed assertion or manifest adverse exercise of such right, while, on the other hand, the right to sue in respect of the possession and the consequent running of time under Art. 144 of the Indian Limitation Act in respect thereof can commence only when the possession itself (and not a mere claim to some minor right) becomes adverse to the rights of the person alleging title, which it cannot be as long as that person is not entitled to claim possession. And Chinto V/s. Janki shows that for a mortgagor to be entitled to claim immediate possession on the ouster of the mortgagee, there must be virtual dispossession of the mortgagor as well as of the mortgagee. In other words, there must be something done or declared, excluding his power to resume possession at will, as unmistakably as physical ouster would. Then, at p. 68 the conclusion reached in that case was thus stated by Batty J. : No doubt, as long as the mortgagee is in possession, he and all claiming under him represent the mortgagor's possession. If the mortgagee in possession is dispossessed on grounds affecting only his right, as for instance, his right as heir to represent the original mortgagee, or his right, as in Parmananddas Jivandas V/s. Jamnabai (1885) I.L.R. 10 Bom. 49, to possession in spite of a third party's lien on the property, then the dispossession of the mortgagee obviously does not imperil or call in question any right of the mortgagor, and the mortgagor is not concerned or entitled to insist on being immediately restored to possession : and the possession taken is not adverse to him and cannot cause time to run against him. To give the mortgagor a right to insist on immediate possession, there must be an unequivocal ouster preventing the possession of the mortgagor from continuing altogether by leaving no room for doubt that the person taking possession does not profess to represent the mortgagor, but to hold in spite of him. In such a case, the mortgagor is as effectually and unmistakeably displaced as if there had been no mortgage at all. When an ouster takes place in that manner the mortgagor knows that no one is in possession who can represent or continue his possession, or who is entitled preferentially to possession, and, therefore, he becomes entitled. (and it is necessary and his duty, if he does not want his right to be barred) to claim possession immediately. The lower appellate Court has relied particularly on this passage in support of the conclusion that it has reached.