GURDIAL Vs. MUNNA LAL

JUDGEMENT

(1.) THE sole point for decision in this appeal is one of limitation. THE facts are briefly as follows: THE property was mortgaged in the year 1861 to a certain mortgagee. In the year 1892, the mortgagee, purporting to be fall owner of the property and being in possession (though under his mortgage), made a simple mortgage of the property to another person. In 1896 this mortgagee brought a suit for sale of the property. THE property was sold and purchased by the mortgagee who remained in possession up to the year 1906, when he sold it by voluntary sale-deed in. favour of the present respondents. THE plaintiff in the present suit is a person who has acquired the equity of redemption of the original mortgagor, and has brought the suit ostensibly for redemption of the mortgage under Article 148. THE Court of first instance decreed the claim. THE lower Appellate Court held that the suit for possession was barred by limitation and dismissed the suit. Hence the present appeal by the plaintiff, At the outset, the plaintiff is met by the decision of a Division Bench of this Court in Ram Peari v. Budh Sain 61 Ind. Cas. 546 : 18 A.L.J. 995 : 2 U.P.L.R. (A.) 332 : 43 A. 164. That was similarly a suit for redemption under circumstances almost parallel with those of the present case. In that suit the facts were as follows: In 1861 certain property was mortgaged with possession, as in the present case, to one H.G. and then the equity of redemption was sold to one J. THE latter obtained a decree for redemption conditional upon the payment of a certain sum to H.O, but the payment was not made, H.G. remained in possession until the year 1889 when he hypothecated it to K. describing himself as absolute owner. In 1901 K s heirs obtained a decree for sale on foot of the mortgage and in 190? purchased it at the action sale in execution of the decree. THEy sold it to the defendants by two sale deeds in 1904 and 1905. In 1915 the heirs of V. brought a suit for relemption of the mortgage of 1861. It was held in that case that the Article applicable to the suit was Article 144, can not Article 143, or Article 134, and that the defendants and their predecessors in title having been in adverse possession for more than 12 years, the suit must fail. THE fasts are parallel to the facts of the present case. THE present respondents are transferees by the sale deed of 1903 from those persona who in 1896 purchased in execution of the decree obtained on the basis of the mortgage of 1892. That mortgage of 1892 was one made by the original mortgagee claiming to be full owner of the property. Sitting as Single Judge, I am bound by this ruling of 8 Division Bench, though it seems to me that Article 134 might well be applied to the circumstances of the case In their judgment the learned Judges at page 996 page of 18 A.L.J.-Ed remark; Article 134 is excluded by the fact that the vendors of the defendants had not purchased from the mortgagee. THEy had acquired their rights by virtue of an involuntary sale, which, according to the decisions in Ahamed Kutti v. Raman Namludri 25 M. 99 : 11 M.L.J. 323, Bhagwan Sahai v. Bhogwan Din 9 A. 97 : A.W.N. (1886) 303 : 5 Ind. Dec. (N.S.) 496 and Sheo Nath Singh v. Mahipal Singh 2 A.L.J. 234 : A.W.N. (1905) 56, is excluded from its operation." This decision was passed in the year 1920. THE Limitation Act in force is Act IX of 1908. THE decisions quoted are all decision under the previous Act XV of 1877, In the corresponding Article under that Act the word purchased was entered and that word has, by the Legislature, been removed from Article 134 and been replaced by the word transferred." That Article now runs, eliminating the unnecessary portion, as follows: To recover the possession of immoveable property mortgaged and afterwards transferred by the mortgagee for valuable consideration," THE decision of Mr, Justice Banerji reported as Sheo Nath Singh v. Mahipal Singh 2 A.L.J. 234 : A.W.N. (1905)56 was a decision under the old Act and is no longer applicable, when the word "purchased" has been deliberately removed by the Lagislature and replaced by the word "transferred". THE word transferred "is not limited in the Article by any language and is, in my opinion, entitled to the interpretation which is given to it in the Transfer of Properly Act. It does cover the case of a simple mortgage. My attention is sailed to the ruling in Mulla Vittil Seeti Kutti v. Eurhi hakhumma 43 Ind. Cas. 31 : 40 M. 1040 : 33 M.L.J. where the point has been considered and where the Full Bench of the Madras High Court was almost equally divided, one in favour of one interpretation, the other in favour of the other. Three out of the five Judges held that the transfer mentioned in Article 134 was a transfer under which possession is taken by the transferee. THE other two Judges held to the contrary, and held that Article 134 did apply to a mortgage under which possession is not taken by the transferee. I also notice that two of the learned Judges held that Article 134 of the Limitation Act applied, but that time began to run not from the date of the transfer but from the date of taking possession; whereas, in the third column against Article 134 the time from which period begins to ran is clearly and distinctly laid down as the date of transfer. I think that Article 134 must apply to the present case, but even if it does not, under the ruling mentioned by me, at least Article 134 would apply. In either view, Article 143 cannot apply as the respondents and their predecessors in-title have been in clear adverse possession for more than 12 years, in fact at least from 1886 if not from 1892. In my opinion, the decision of the Court below is correct and this appeal, therefore, fails and is dismissed with costs.