SOMALINGA L RENGIER Vs. RAMIA SANTHU

JUDGEMENT

(1.) This second appeal has arisen out of a suit brought by the plaintiff (respondent 1) for redemption of the plaint-mentioned othi on payment of a sum of Rs. 300 to defendant 1 and for recovery of possession of the plots marked A and B on redeeming the said mortgage. The facts of this case are set forth clearly in the judgment of the lower appellate Court. The usufructuary mortgage sought to be redeemed in this case has arisen in the following circumstances: In 1885 the plaintiff's deceased grandfather Lakshmana Ayyar received a sum of Rs. 300 from defendant 1 for the purpose of constructing a house on the site maked A and permitted him to occupy the said building and also the terraced room B in lieu of interest due on the sum of Rs. 300. There was thus an oral othi in favour of defendant 1 in November 1885. Defendant 1 and his wife have been in possession of the suit properties since 1885. On the strength of a subsequent Hypothecation deed, of 1894 executed by the plaintiff's grandfather in favour of defendant 5 (Ex. H) she filed O.S. No. 583 of 1899 and after some contest obtained a decree in her favour. It is admitted that decree debt has been discharged. In his deposition given in that suit in 1900, the present defendant 1 admitted that he was in occupation of plots A and B on othi right for Rs. 300 (Ex. N). Having been in enjoyment of the property as a mortgagee in lieu of interest due on Rs. 300 for a period of over 12 years, defendant 1 has acquired a possessory mortgage right by prescription after the lapse of 12 years. On the basis of the creation of a prescriptive othi right in defendant 1 by adverse possession, the present suit is filed by the plaintiff for redeeming that mortgage and recovering possession of the suit properties. In O.S. No. 63 of 1915 on the file of the District Munsif's Court, Madura, the present plaintiff sued to redeem the oral othi of 1885 and recover possession of the properties: vide Ex. D. That suit was transferred to the file of the Additional District Munsif of Madura and was numbered as O.S. No. 177 of 1915. Though the first Court granted a decree for redemption holding the oral othi to be true, the first appellate Court reversed that decree and dismissed the suit on the ground that the oral mortgage for Rs. 300 was invalid and therefore incapable of proof (Ex. F.). A second appeal was preferred to the High Court and it was argued that, though the oral othi sued on would not entitle the plaintiff to a redemption decree, as it was invalid, a decree could at least be given for redemption on the footing of an othi right acquired by defendant 1 by prescription. The High Court, however, disallowed that contention, pointing out that the othi right created by prescription in favour of defendant 1 was not referred to in the plaint and was not the mortgage which the plaintiff actually sued to redeem. The second appeal was accordingly dismissed; but the High Court said that if any other othi relationship between the plaintiff and defendants had been created by prescription, he could sue again for redemption alleging it: vide Ex. G. The present suit has thus been brought for redeeming the aforesaid prescriptive othi, which defendant 1 has acquired under the statute of limitation.

(2.) The main contention put forward on the defendants side is, that the present suit is barred as res judicata by reason of the decision in the former suit, namely, O.S. No. 63 of 1915. Reliance is placed on Section 11, Expln. 4, Civil P.C., and also Order 2, Rule 2 in support of the plea that the present suit is barred. Both the lower Courts have held that there is no such bar to the present suit and gave a decree in plaintiff's favour for possession of the suit properties. The same contention is now pressed in this Court by the learned advocate for the appellant.

(3.) There is no doubt that the former suit was based solely on the oral othi of 1885 and it was dismissed on the ground that the oral mortgage was invalid and incapable of proof. Defendant 1, however, continued to be in possession under an invalid or void mortgage and the quality and extent of the right claimed by him by such possession depended upon the claim accompanying it and upon the nature of animus possidendi. Having been in enjoyment of the properties adverse to full ownership, in the capacity of an othidar for over the statutory period, he should be held to have acquired a limited interest in the properties, to the extent which he prescribed for, namely, a possessory mortgagee's right for Rs. 300. This principle has been clearly laid down in Gopala Dasu V/s. Rami A.I.R. 1921 Mad. 410. To the extent of the limited right in immovable property acquired by another by prescription, there is an extinguishment in the title of the full owner and it may not be quite correct to say that there was any statutory transfer of that limited interest in favour of the person who prescribed for it. A mortgage is ordinarily created by a contract and as such it is an act of parties. But such a mortgage right, as for instance, the interest of a mortgagee in possession, may also be acquired by prescription, and when so acquired, after the completion of the enjoyment for the statutory period, he would just be in the position of a usufructuary mortgagee entitled to hold the properties until that mortgage is redeemed by the owner. In this view, we are of opinion that the prescriptive othi sought to be redeemed in the present suit is different from the oral othi of 1885 which was sued on in the former suit and held to be invalid and incapable of proof. The question therefore is whether the dismissal of the former suit brought to redeem an invalid mortgage of 1885 is really a bar to the present suit in which a different mortgage, which subsequently sprang into existence by the operation of the statute of limitation, is sought to be redeemed.