1. In this case the plaintiffs sued to redeem certain property by payment of such amount as on account taken might be found due from them, in respect of a mortgage executed by the widow of one Kondi Aga (the father of two of the plaintiffs and grandfather of the third) to the deceased grandfather of defendant No. 1, which possession, for Rs. 170, about thirty years before suit. The plaintiffs allege that the mortgage had been satisfied by the produce received, but defendant 1 (sic) on demand, refused to render an account on 1st March, 1897. The other defendants were joined (the plaint stated), as they had been in enjoyment on behalf of defendant 1.
2. The first defendant admitted that the land had been mortgaged with possession, but alleged that the defendants 2 and 3 had been in possession since 1885 by virtue of= an agreement entered into by them with the grandfather of the first defendant. Of the other defendants, Nos. 2 and 3 denied the rights of the plaintiffs, alleging that the plaintiffs being females could not succeed to the property which is Fakiri Vatan, and as such, defendants alleged, incapable of being managed by females. The defendants also alleged that they had enjoyed possession throughout and that the claim of the plaintiffs was time-barred.
3. The Court of first instance found the mortgages alleged proved and held that the plaintiffs were not disentitled by family usage, but were entitled to succeed-as heirs of the mortgagor. It held, however, that their claim was time-barred by reason of the fact that the defendants had been in possession as entitled to the equity of redemption and had on 31st August, 1885, by a kabulayht passed before a conciliator, undertaken to pay the Amount of the mortgage, and had paid money accordingly, and that the defendants having assumed an adverse attitude from 31st August, 1885, the plaintiffs' suit, not having been filed until 5th October, 1897, was time-barred. On these grounds the suit was dismissed by the Court of first instance.
4. The lower Appellate Court took the same view, holding the possession of the defendants to have been adverse from tie date on which they arrived at an agreement with the conciliator in 1885 to pay off the mortgage by annual instalments of Rs. 8, whereby they extinguished their lien in 1897. The lower Appellate Court held-that in the present case plaintiffs had no notice that the defendants had usurped the equity of redemption, that that there was no authority for the proposition, that knowledge on the part of the person whose rights are invaded would be essential to adverse possession, that there had been adverse possession of the equity of redemption as well as possession of the land and that therefore the case of Chinto v. Janki (1892) 18 Bom. 51 was inapplicable, and that though the agreement gave the mortgagee a right of re-entry on default in payment of instalments, yet the position of the defendants 2 and 3 under that agreement was that of owners subject to a liability, and not that of tenants.
5. The view of the lower Appellate Court and of the Court of fast instance, that Article 144 of Schedule II of the Indian Limitation Act, 1877, 'supplied the limitation applicable,' is not contested on appeal. The only question, therefore, that arises in this appeal is whether the post session of the defendants 2 and 3 became adverse to the plaintiffs at the date of the agreement and by reason of the agreement which was entered into by those defendants with the mortgagee, and of which the plaintiffs, according to the finding of the lower Appellate Court, had no notice.
6. The grounds on which the lower Appellate Court held the possession of the defendants adverse, appear to be that there is no authority for holding that 'knowledge on the part of the person whose rights are invaded is an essential element of adverse possession'; that Article 144 does not make time run from the time when the plaintiff becomes aware of the interference with his rights; that the ruling in Chinto v. Janki (1892) 18 Bom. 51 avowedly contemplates the possibility of cases in which possession by parties other than the mortgagee may be adverse to the rights of the mortgagor; and that the possession of the defendants in this case which was adverse was not possession of the land itself, but the possession of the equity of redemption. The lower Appellate Court considered that the arguments advanced to show that the possession of the defendants was not adverse were based on a confusion of the notion of possession of the land with the notion of possession of the equity of redemption. The passage which follows this remark in the judgment runs: 'If some person other than the true owner claims to hold this right as owner himself, his possession is obviously adverse.'
7. From the passages above referred to, it would seem that what the lower Appellate Court regarded as the possession of the right 'was She claim to hold the right.' But possession means something more than a mere claim to hold. And the possession of a right, juris quasi possessive, if that much questioned phrase be permissible at all See Savigny on Possession Book I, Section ix and xii and if it means anything at all, consists in the exercise of aright, jus in re Savigny, Book I, xii; Sir E. Perry's And unless and until there be an exercise of rights in excess of that which is involved in the possession of the land'itself, if the. possession of the land be not adverse, there can be no possession that is adverse. The definition of adverse possession by Markby, J., to which the District Judge refers as Mr. Justice Starling's is to be found, in Bejoy Chunder v. Kally Prosonno (1878) 4 Cal. 329. It was accepted by the Full Bench decision of this Court in Bhavrao v. Bakhmin (1898) 23 Bom. 137 and runs as follows: '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 the right to immediate possession.' The last five words of this passage 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 agree non currit praescriptio. 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.
8. The adverse possession of a right then, as seems indeed to be indicated of implied by Articles 124, 125, 126, 129, 131 and other provisions of the schedule, must consist of some exercise of that right. And if the exercise of the right consists solely in the possession of land, then the possession of the right cannot be adverse unless the possession of the land be adverse. Under the Roman Law, 'possession was not lost in land until the possessor had notice of his physical power to deal with it having been destroyed.' Savigny on Possession Book III Section xxxv; Sir E. Perry's Translation pp. 151, 227, 261, 262, 266, 268, 275, 277, 281. This doctrine was of special importance in connection with the peculiarity of Roman Law, which denied possession to the tenant and to the fructuary. Saving, Book II, xxv p. 206 note (d) and pp. 207, 209. When the possessor is himself prevented from dealing with the land, i.e., when there is dejectio, there can be no doubt about his knowledge of its loss. But actual knowledge is not necessarily in all cases material if there be the means of such knowledge: Womesh Chunder Goopto v. Raj Narain Roy (1868) 10 Cal. W.R. 15, and Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee (1878) 4 Cal. 327. As stated by Mitraj Tagore Law lectures, Law of Limitation and Prescription, p. 135, note (6) 'actual knowledge is not necessary. Knowledge may by presumed from an open and notorious act of taking possession: see Angell on Limitation, 292.' But although there may be adverse possession notwithstanding the fact that the owner discontinuing possession is unaware of the possession taken by another, yet the possession must have been used openly, 'without any effort made or step taken to produce concealment': Rains v. Buxton (1880) 14 Ch. D. 533. There must be an adverse act--Searly v. Tottenham Railway Co. (1868) L.R. 5 Eq. 409 --and nothing that would lead the owner to suppose that his rights remain intact: Adnam v. Earl of Sandwich (1877) 2 Q.B.D. 485 . The possession taken must not be clandestine. For possession, in order to ripen into a prescriptive title, must be juridical and have none of the vitia possessions as clame vi aut precario. And if in its inception it is vitiated by its clandestine, violent or permissive characters it must lose that character and become open, peaceable and as of right, before it can, cause time to run. And it is fully established that when there is no act of taking possession, something more than a mere adverse claim is necessary to make possession adverse. Thus one who holds possession on behalf of another does not, by a mere denial of that other's title, make his possession adverse, so as to give himself the benefit of the Statute of Limitations': Bejoy Chunder Banerjee v. Kally Prosonno (1878) 4 Cal. 329. There must be some 'adverse act,' so that if the possession has commenced and continued in accordance with any contract, express or implied, between the parties in and out of possession, to which the possession may be referred as legal and proper, it cannot be presumed adverse So also in cases between mortgagor and mortgagee': Dadoba v. Krishna (1879) 7 Bom. 34 39. That is to say, if there be no adverse act, nothing overt and no unmistakeable ouster, or taking of possession, and all that is done is referable to, or consistent with and susceptible of explanation by, some title which does not impugn but recognise the right of the person seeking to recover possession, then there can be no possession adverse to that person without notice or intimation to him of some kind, that an adverse claim has been set up in opposition to his right theretofore recognised: Ittappan v. Manavikrama (1897) 21 Mad. 153. 'The party claiming to hold adversely mast at least go on to prove that it was in denial of the other's title that he excluded him from enjoyment of the property. According to the English cases there must be something amounting to ouster of the person against whom adverse possession is claimed.' The case of Ramchandra Yeshwant v. Sadashib Abaji (1882) 9 Cal. 367 is to similar effect: 'As long as possession can be referred to a right consistent with the subsistence of ownership being at its commencement, so long must the possession be referred to that right, rather than to a right which contradicts the ownership.' And as shown by the cases of Womesh Chunder Goopto v. Raj Narain Roy (1869) 10 Cal. W.R. 15 and Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee (1878) 4 Cal. 327 and in Sharat Sundari v. Bhobo Pershad (1886) 13 Cal. 101. Vinayak Janordan v. Mainai (1894) 19 Bom. 138 and Krishna Gobind v. Hari Churn (1882) 9 Cal. 367 even here there is an act of taking possession, the possession will not be adverse as against any person who is not for the time being entitled to possession and who is therefore neither interested in, nor capable of, ejecting the person who has taken possession. There must be some adverse act sufficient to give the person to be affected by it an opportunity of knowing that his rights are being infringed and that occasion has arisen for action by him to protect them: Dewan Manwar Ali v. Unnoda Pershad Roy , Mussummat Bebea Sahodra v. Roy Jang Bahadur (1881) L.R. 7 210. Thus, a tenant or lessee does not, merely by ceasing to continue possession on behalf of the owner, necessarily create a possession adverse to the latter.
9. On the other hand, 'if the case be of such a nature that the possession would be lost even if no agent had Interfered with it, in such case it would be always lost' Savigny, Book III, Section 35; Sir E. Perry, 277, 278. 'If the act of a wrong-doer dispossess the agent, undoubtedly the possession is lost, and the knowledge of the prior possessor is immaterial.' Savigny, Book III, Section 35; Sir E. Perry, 277, 278. This applied equally when the tenant was dispossessed: 'Quod servus vel prosecutor vel colours tenent, dominus videtur possidere et ideo his dejectis ipse dejici de possessione videtur ettam si ignoret cos dejeatos per quos possidebat.'
10. Thus the agent, tenant or other person holding on behalf of the owner, is a means of securing and continuing his possession (i.e., the power of dealing at will with the subject-matter) and may for convenience of illustration be regarded in the same light as any other agency or arrangement such as a safe or other receptacle performing the same protective functions. As long as the subject-matter is so protected and the means of protection is still within the-control of the owner, it is obvious that his power of dealing with the subject-matter can no more be lost by the mere addition of any subordinate possessor, than a document would be lost merely by its being placed in an enclosure within the owner's safe. The owner would still have the power of reproducing at will his enjoyment of the subject-matter, unless and until on his having occasion to make use of it he found that he was resisted by the protecting agency itself. The same might occur with property in a safe which it was found necessary to force open to get at the property. And if a stranger removed the subject-matter from the safe or other means of protection, but made no attempt to remove it from the owner's possession and control, the owner would not lose his power of using it and would be under no necessity of taking steps to recover possession until the subject-matter 'was taken, not merely out of the safe, but entirely out of his own possession and control, in which latter case his loss would be as complete and unmistakeable as if no means of protection had ever been employed. In the same way, the person intended to secure and continue possession may lose it without the possession of the owner being necessarily affected. But if the property is removed not only from the control of such person but also from the control of the owner, the possession is as much lost in that case, and the necessity for action by the owner arises as immediately, as if there had never been any protecting agency at all. This very obvious distinction between a loss affecting only the agent or means of protection, and a loss affecting also the owner, seems to lie at the root of those cases in which it has been held that while there may to possession adverse to the mortgagee, which is not adverse to the interest of the mortgagor, yet it does not follow that so long as the mortgagor is entitled only to the equity of redemption, there can be no invasion of interest.
11. The cases of Chinto v. Janki (1892) 18 Bom. 51 and Vithoba v. Gangaram suggest instances in which the mortgagor's interest is not assailed.
12. The case of Ammu v. Ramakrishna Sastri (1879) 2 Mad. 226 is an instance and cites instances in which the interest of the mortgagor is assailed. The essential difference in the circumstances of the two sets of cases is that in the first set of cases the mortgagors had no apparent reason to suppose that their rights must have bean infringed, while in the second set the mortgagors must necessarily have known that they well as the mortgagees had been deprived of the power of exercising their rights and that some one else was exercising them. In the cases Chinto v. Janki (1892) 18 Bom. 51 and Vithoba v. Gangaram (1875) 12 Bom. H.C. 180, which represent the first set of cases, the mortgagees while in possession were ousted by a stranger. In both these cases it may be noted that the disease was held by the Court of first instance to have been let into possession by the mortgagee: in Vithoba v. Gangaram as tenant, in Chinto v. Janki as sub-mortgagee. The lower Appellate Court, however in both cases held that this point was not proved. In Chinto v. Janki the plaintiff's name was entered as well as that of the original disseisor in the revenue records. It was alleged that proceedings had been taken for the removal of plaintiff's name from that record, but it was not proved that they were successful or that plaintiff had notice of them I.L.R. 18 Bom. 55, and there was nothing else to show in what way the possession had been adverse to the plaintiff, the mortgagor, or in other wordy that there had been from the first an attempt to dispute his power of resuming possession and control on occasion arising.
13. In Vithoba v. Gangaram there was nothing beyond the bare ouster of the mortgagee to show that the mortgagor had any reason to suppose a possession hostile, to him had commenced.
14. On the other hand, in the case of Ammu v. Ramakrishna (1879) 2 Mad. 226 which represents the second set of cases where the mortgagor's rights were held to have been assailed, the defendants had originally been let into possession as tenants. But in 1861, fifteen years before suit, an enquiry was instituted by the Deputy Collector (in which enquiry, the, mortgagor was represented by his mother) as to the right of the mortgagor, as against Government, to the lands in question; and in 1862 (fourteen years before suit), the Deputy Collector held the lands to be the property of Government and asserted the lands and granted them to the defendants on pattas. The plaintiff, the mortgagor, did not sue the alleged trespassers till 1876. Now, in these circumstances, it is clear that the defendants did not obtain the possession under the mortgage, or even against him alone, but by virtue o a decision in proceedings of which plaintiff, the mortgagor, had notice; so 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.
15. The judgment in Chinto v. Janki (1892) 18 Bom. 15 alludes to the fact that the plaintiff was not entitled to immediate possession at the date of the defendant's taking possession. The judgment of Telang, J., in the same case refers specially to the definition by Markby, J., in Bijoy Chunder v. Kally Prosonno (1878)4 Cal. 327 as showing that possession could not be adverse to the mortgagor as long as he want not entitled to immediate possession vide Chinto v. Janki page 57. That is to say, if the plaintiff was not entitled to immediate possession, then the defendant's act in taking possession would not infringe any right of plaintiff's to possession and would not be adverse to plaintiff. The question, therefore, arose whether the plaintiff was entitled, to immediate possession. And 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. For, in the case of landlord and tenant, the mere ouster of the tenant was shown to be insufficient so to affect the landlord as to put him to the necessity of vindicating his position. But when the landlord was entitled to rent and the rent was not merely left unpaid (a fact which would give the real owner no unmistakeable notice of his rights being infringed), but was actually refused and paid to another person, then there would be such virtual dispossession of the righted owner as to put him to his remedy. So in the case of the mortgagor, when his mortgagee is dispossessed, he is at liberty to say, 'Whoever is in possession, it does not matter to me, for I am not entitled to it: the mortgagee is: and he alone is concerned, as his rights only are infringed and be is only losing his own possession not mine, and whoever is in possession is only taking the place of the mortgagee and thus representing and continuing my possession.' But he cannot continue to say this when the person who has taken possession by this acts shows, or by his open declaration avows, that ha does not pretend to represent either the mortgagee or the mortgagor, but as exercising a right claimed entirely on his own account. In such a case the disseisor affects not the mortgagee's interest alone, but the mortgagor's, and the mortgagor, having No. one in his place professing to hold for him, is entitled to seek recovery and is under the necessity of taking action as much as if he had been personally ousted. It was, therefore, in the case of Chinto v. Janki (1892) 18 Bom. 51 held necessary to remand the case for a finding on the question whether the defendant had thus openly acted so as to deprive the mortgagor by assailing his rights, and if so, when the possession of the defendant had thus become adverse to the mortgagor.
16. The Madras High Court, in Ammu v. Ramakrishna Sastri did not rely upon the ouster of the mortgagee as proof of a(1879) 2 Mad. 226dverse possession of the mortgagor, but upon the fact that the mortgagee's possession ceased altogether, and the mortgagor's possession was not continued constructively, but disappeared by reason of the very act of ouster which to the plaintiff's knowledge challenged his own title. Thus the adverse possession alleged against the mortgagor did not consist of a mere unrivaled claim of the equity of redemption, but of an actual ouster coupled with an avowed claim, entirely independent of the mortgagee, going to the root) of the plaintiffs title.
17. In the case of Puttappa v. Timmaji (1889) 14 Bom. 176 there was a similarly open taking of possession on purchase, not from the mortgagee or in recognition of any right in him, but on purchase from a person (Narsubai) who sold also in the assertion of a right not derived from the mortgagee, and the possession of purchaser had continued from 1856 to 1884. And in that case what appears to have been regarded as the most conclusive evidence of the adverse nature of the possession was indicated in that passage of the judgment which states that, in 1856, Narsubai was ' in possession of the equity of redemption adversely to the rightful heirs and acting as if she were the owner of the property and receiving the rent which the mortgagee had agreed to pay by the mortgage-bond. Ramappa derived his title as purchaser from Narsubai, and although possession was probably given him directly by the mortgagee, it must be deemed to have been at 'she desire of Narsubai on his discharging the mortgage-debt.' The above passage shows that there was not only a bare claim of the equity, but an active exercise of the rights attaching to a holder thereof. It was not merely that Narsubai paid oft the mortgage (for that is not the exercise of a right so much as the discharge of an obligation), but that she took what plaintiff, if in possession of the (equity, would have been entitled to, viz., the rent agreed to by the mortgagee in the bond, a right which plaintiff must have know he was deprived of. The passage cited further shows that the possession of the purchaser Ramappa was virtually derived not from the mortgagee but, from Narsubai, and the conclusion was that ' the Subordinate Judge was right in considering Ramappa as deriving his possession from Narsubai and his possession as being adverse to the plaintiff from that time.'
18. In Ittappan v. Manavikrama (1897) 21 Mad. 53 165 a passage is quoted from the judgment of Telang, J., in Chinto v. Janki (1892) 18 Bom. 51 which stated that 'the mortgagor having once put the mortgagee in possession ordinarily has no right to the possession until the mortgage is paid off.' And it was observed, that notwithstanding Puttappa v. Timmaji (1889) 14 Bom. 176 it would be seen from the later case of Vinayak Janardan v. Mainai (1894) 19 Bom. 138 that the opinion of Telang, J., commended itself as sound to Sargent, C.J., and Candy, J. In this state of the authorities, I would say that Mr. Justice Telang's view appears to be the better view. If, however, that in Ammu v. Ramakrishna Sastri (1879) 2 Mad. 226 be the correct one, still the possession of the person baking it from the mortgagee-would not be adverse unless and until the mortgagor has notice of it: Massed v. The Collector of Malabar (1886) 10 Mad. 198. This last-mentioned case, it may be noted, is the converse of Ammu v. Ramakrishna as being an instance in which the mortgagor, having we notice of the proceedings of Government declaring his lands to have escheated and transferring them to another, was not affected thereby, while in Ammu v. Ramakrishna the mortgagor was held to have been affected by similar proceedings because he had notice thereof. Thus notice is essential where there is otherwise no circumstance from w (1879) 2 Mad. 226 hich the plaintiff could become aware that his rights had been disputed. The case of Vasudev v. Balaji appears, therefore, to have no application here. For that case was one in which a consent decree had been passed against co-owners in a mortgage suit, and one of the co-owners subsequently redeemed and having obtained and held possession for over twelve years, set up adverse possession agai (1902) 26 Bom. 500nst the heirs of the other co-owners. It was held that the possession so set up was adverse. It was argued that to hold Article 148 not applicable would be to prejudice the plaintiff by an act to which he was no party. But the Court held that argument had no force in that case, inasmuch as the redemption was under a decree passed against both mortgagors. This fact gave the mortgagor who did not redeem, full notice that, if he did not redeem, either the other co-owner must have done so, or that the right was lost for ever. And the Court gave a note of warning as to the importance of this distinguishing circumstance by adding', what considerations would apply if the redemption were without the mortgagor's knowledge, we need not now discuss.' The effect of absence of such knowledge appears to have been sufficiently illustrated by the other cases hereinbefore cited, and, is distinctly shown in a case more pertinent to the present question--Moidin v. Oothumanganni (1888) 11 Mad. 416 Where one of the co-mortgagots redeemed and thereafter dealt with the land for twenty-two years from 1864 to 1886. When the sons of the co-mortgagor sued in respect of their moiety, it was held, that, in the absence of proof that the land was held with an assertion of adverse title, the plaintiff was entitled to a decree. The mere assertion of title in the recital of a deed was held insufficient, and the case of Ramchandra Yeshvant v. Sadashiv Abaji (1886) 11 Bom. 422 was referred to, in which the principle for computing limitation in such cases was said to be analogous to that of the provision which bars and excluded co-sharer generally by the lapse of twelve years from the time when he becomes aware of his exclusion. It is true these were cases of redemption by co-mortgagors. But the main principle involved in them is the same as that which must apply here, viz., that possession must be in some way or other ostensibly adverse before it can cause limitation to run, and when there is no actual ouster, or deprivation of any right, there must be a manifest and known assertion of a title incompatible with that of the disseisee. The nature of the requisite assertion of title may be gathered from the case of Gangabai v. Kalapa (1885) 9 Bom. 419 where it was held that mere assertion would not avail in the case of a permanent lessee claiming to be owner, unless made to the knowledge of the owner. So also in Mulji Bhulabhai v. Manohar Ganesh (1897) 12 Bom. 322 'persona having come in as mere servants or agents cannot by a wish or a volition change the nature of their possession.' There must be something more than an undivulged claim of right.
19. In the present case, the Subordinate Judge seems to regard the defendants action as adverse because they passed a kabulyat to pay the mortgage debt, and made payments accordingly. But this was not action which could in itself cause any loss or deprivation of plaintiff's rights apart from the claim in pursuance of which it purported to have been taken and of which the plaintiff is not found to have known anything ah all. The Subordinate Judge referred, however, to the case of Cholmondehy v. Clinton (1820) 2 J. & W. 186 as showing that when a person claiming to be entitled to the equity of redemption enters on the mortgaged property and pays the interest on the mortgage, his possession is adverse to the true owner. This statement, as to the effect of the decision Cholmondeley v. Clinton (1820) 2 J. & W. 186, appears to be due to a misconception which a reference to the case itself might have corrected. The misconception is that, for the Purpose of showing adverse possession of the equity, an agreement to redeem and payment of the money to redeem, stand on the same footing as payment of interest due from year to year by the mortgagor to the mortgagee under the bond. But the distinction between the two payments is this. As stated in Cholmondeley v. Clinton (1820) 2 J. & W. 186' payment of the interest operates to keep alive the mortgage debt It is a continued mutual recognition of his (the payer's) title as mortgagor and that of the person to whom the payment is made as mortgagee.' 'If no interest upon the mortgage had been paid by any one... (i.e., for the statutory period), possession in the mortgagee would have decided the question of title in favour of that possession,' because 'the actual possession of the mortgagee, continued...for such period without any payment of interest by the mortgagor or anything done or said, during that period to recognise the existence of the mortgage, or to acknowledge it on the start of the mortgagee, would clearly operate as a bar to redemption by thj mortgagor.' Thus the mortgagor, Mrs. Darner, must have known Jibat if she were not paying interest all 'that period,' either somebody else must have been doing so, or, if the mortgagee were in actual possession, then her right to redeem would be barred. But for the necessity for the payment of interest, the judgment shows (page 187) ' actual possession by the mortgagee might have had a different effect, because that would have been consistent with her (Mrs. Darner's) title, and not adverse to it.
20. But, in the present case, there was nothing to show the plaintiffs that any one else was assuming the character of the mortgagor, for as plaintiffs were under no necessity to redeem at any one particular moment within the statutory period, they had no reason to suppose that if they did not redeem, either somebody else must be doing so, ort hat redemption would be barred. In a case such as Cholomndeley v. Clinton payment of the interest of mortgage by the person claiming to be mortgagor to the mortgagee, is a recognition of the right and title of the mortgagor, and preserves it unbarred; but it cannot be deemed a recognition of the right or title of any other person to he the mortgagor. It is an act of directly contrary import. By making the payment in his own name, and on his own account, he (the person claiming to be the mortgagor) takes upon himself to do an act that belongs to the mortgagor, and thereby virtually declares that character to belong to himself' (2 J. & W., page 180). It is farther to be borne in mind that in Cholmondeley v. Clinton (1820) 2 J. & W. 186'the mortgagee having declined the possession, left it as it was before the mortgage, in the mortgagor, who continued in the actual possession and enjoyment of the rents and profits for his own absolute use and benefit, as the equitable owner of the estate,' and therefore in a later passage (page 185) 'the interest of the mortgage money' is spoken of as 'tendered from year to year by the person who, claiming to have succeeded to the original mortgagor in the title to the equity of redemption, is, by the acquiescence of the rightful owner of it, allowed to remain in the quiet and uninterrupted enjoyment of the estate as the sole and admitted owner.' So in an earlier passage (page 143) it was said: 'So long as the incumbrance continues, the interest must be paid by whoever, is the owner of the estate, as much as the taxes or any other outgoing payment. Payment thereof is an admission of the debt and of the title of the mortgagor, but it is no admission of any right existing in any other person to the estate, much less of the right of any person alleged to be the rightful mortgagor. It is, on the contrary, in respect to him, in itself the strongest exercise of adverse possession. It is a public usurpation of the character of the mortgagor, from year to year doing the acts which belonged to it. The mortgagee recognised him as such by receiving the interest from him. Horace, Earl of Wimpole, and those who claimed under him knew this, bat never interfered to offer payment themselves, or question its being made by Lord Clinton. They forbore in this respect, as well an every other, to act as the owners of this estate, because they considered that character to belong to the Lord Clinton, and not to themselves. They therefore in so doing recognised and acquiesced in his title, but he did nothing to reoognise theirs. On the contrary, his acts were uniformly adverse to it. The laches and non-claim of the one party, and the adverse possession of the other, arenas strongly exemplified in this instance as in every other.' So in another passage (page 142): 'The fact of the possession taken by the late Lord Clinton, the exercise of every act of ownership and dominion by the late and present Lord Clinton, the receipt of the rents and profits, the payment of the outgoings, the interest of the old mortgage, the new settlements made creating long terms of years for a jointure and raising portions, and for borrowing large sums upon view mortgages, and settling the estate permanently in its family: all this the bill states to have been made known to Horace, Earl of Oxford; that he was acquainted with the ground upon which Lord Clinton founded his title, and that he took legal advice upon it; and...afterwards deliberately, again consulting his legal advisers, executed the deed of confirmation, expressly recognising the title of Lord Clinton and the acts done by him under it. Upon the death of Horace, Earl of Oxford, neither his devisee nor heir, though each now sets up a claim to the estate, ever took any steps to prosecute the claim till the present suit when the twenty years had elapsed.'
21. 'No doubt,' as observed in Dalton v. Angus (1881) 6 App. Cas. 318 a failure to interrupt, when there is a power to do so, may well be Called laches', and in Cholmondeley v. Clinton (1820) 2 J. & W. 186 the same claim might have been preferred in a Court of Equity at any time during the twenty years suffered to elapse (J. & W. 145). There was no pretence of any disability' (page 142).
22. But this bar to equitable relief on the ground of laches and non-claim could not apply where there was neither knowledge of the assertion of an adverse claim to the equity, nor any act done by another which it was necessary for the claimant to do to preserve his title, and which if not done by him must have been done by and for the benefit of an adverse claimant, unless the equity itself were altogether lost. The adverse possession of the equity was therefore due not to the bare claim as mortgagor, but to the exercise of rights and the doing of acts which amounted to a 'public usurpation of the character of the mortgagor,' a usurpation of which other persons claiming that character could not, if they professed to retain it, have remained ignorant. That was acquiescence with knowledge. And according to the case put by Lord Redesdale in Hovenden v. Lord Annesley (1806) 2 S. & L. 624 quoted in 2 J. & W.p. 18 of a tenant disavowing the landlord's title and atoning to another, if the landlord, being apprised of it, acquiesces, the possession of his tenant becomes adverse and the Statute of Limitation will run against him.' This, however, would not, under the rulings which-follow Womesh Chunder's case (1869) 10 Cal. W.R. 15 above cited, apply in India apparently in the case of a suit for possession against a trespasser when the owner is not entitled to immediate possession. Thus the owner could have no power to sue for possession, during the currency of an ijara, and time would run against him, therefore, only on its termination, though prior to that he might possibly have a right to bring a suit for declaration of title' Krishna Gobinda Dhur v. Hari Churn Dhur (1882) 9 Cal. 367 369 which it would be discretionary with the Court to give or refuse see Mussamut Doolhun v. Lal Beharee (1872) 19 W.R. 32; Rajah Nilmoney Singh v. Kally Churn (1874) 23 W.R. 150 P.N. And laches when the law of limitation has determined the period for suit would be no ground for diminishing that period; Juggernath Sahoo v. Syud Shah (1874) 23 W.R. 99 .
23. 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 Article 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 parson is not entitled to claim possession. And Chinto v. Janki (1892) 18 Bom. 51 shows that for a mortgagor to be entitled to claim immediate possession on thee ouster of the mortgagee, there must be 'virtual dispossession' of the mortgagor as well as of the mortgagee. In other words, there mast be something done or declared, excluding his power to resume possession at will, as unmistakeably as physical ouster would. The Privy Council case of Karan Singh v. Bakar Ali Khan (1882) 5 All. 1 shows that whereas under Section 1, Clause 12, of Act XIV of 1859 a suit for possession of immoveable property must be brought within twelve years from the time when the cause of action arose, under Article 145 of Schedule II of Act IX of 1871 (and therefore under Article 144 of Act XV of 1877), suits for possession must be brought within twelve years from the time when the possession of fee defendant, or some person through whom he claims, has become adverse to the plaintiff. This decision, as explained in Faki Abdula v. Babaji Gangali (1890) 14 Bom. 458 means, when taken with that of Mohima Chunder v. Mohesh, Chunder (1888) 16 Cal. 473 , that where a plaintiff has been in possession, and has been dispossessed, he must show possession and dispossession within twelve years, but where there is no allegation of original possession in the plaintiff lost by dispossession or discontinuance of possession, then the party relying on adverse possession to displace a proved or admitted title must show such adverse possession to have commenced and continued from twelve years prior to suit. In the first-mentioned case the plaintiff admits adverse possession at least to have commenced. In the second he does riot. In the first case, therefore, having admitted ouster, he has to show that the adverse possession, which he admits had begun to run against him, dates from a time too recent to allow of its ripening into a statutory title. In the second, when there has been no such ouster as to give notice of the adverse nature of the possession, it is incumbent on the person alleging that the title Bet up against him is barred by twelve years of adverse possession, to show, not only that his possession has lasted for twelve years, but that it has all the time been in open conflict with the title on which the plaintiff relies. The result is, as above indicated, if there has been no ouster or open and notorious act of taking possession,' then the person relying on his possession to defeat title, must show that it was of such a nature, and involved the. exercise of rights so irreconcilable with those claimable by the plaintiff, as to give the plaintiff occasion to dispute that possession (or, in other words, that it was such as to give a cause of action or right to sue for possession) thought the twelve years next proceeding the suit. The mere existence of the claim without possession, actual or constructive, will not suffice as a bar to a title proved or admitted : Secretary of State for India v. Koishnanomi Gupta (1902) L.R. 29. And even where there is possession, if it has commenced without any act of dispossession, and is susceptible of explanation by reference to a title not inconsistent with the rights of the person against whom it is set up, or of one holding on behalf of suck person or temporarily entitled to exercise his rights, there can be no necessity to call that possession in question, unless and until interference with the right of the person against whom it is alleged has been manifested by acts affecting his existing right, or has otherwise been brought to his knowledge. Viewed from this standpoint, there seems to be nothing irreconcilable in the decisions of Ammu v. Ramkrishna Sastri (1879) 2 Mad. 226. Puttappa v. Timmaji (1889) 14 Bom. 176 and Cholmondeley v. Clinton (1820) 2 J. & W. 187 on the one hand, and those in Chinto v. Janki (1892) 18 Bom. 51 an Vittoba v. Gangaram (1875) 12 Bom. H.C.R. 180 on the other. For, in the first three cases, not only was the mortgagee (the person who represented the claimant and was entitled by his possession to exclude that of the claimant) out of possession, but the possession was taken by a third party who had, to the knowledge of the claimant, the mortgagor, done things which could leave the mortgagor no room for doubting that his rights and position had been usurped. In Ammu v. Ramkrishna, a third party had ousted the mortgagee by contesting the title with the mortgagor face to face. In Puttappa v. Timmaji, a third party had taken the rent which was periodically payable to the mortgagor, and had handed on possession to the defendant. And in Cholmondeley v. Clinton, every act of ownership had been exercised to the knowledge and with the acquiescence of his rival. And in all these three cases, the mortgagee's possession ceased, not in favour of a person acting in exercise of the mortgagee's rights, but in favour of a person acting in open opposition to the rights which any one representing the mortgagor must have had occasion to exercise. And, therefore, as neither the mortgagee nor any one on his behalf was in possession, any person claiming to represent the mortgagor knew that no one but the mortgagor or his representative had any right to be in possession. In Cholmondeley v. Clinton (1820) 2 J. & W. 187; Story's Jurisprudence, 9th Edn., s. 1028 a, Vol. 2, p. 215 if the mortgagee had been in possession, the lapse of time without recognition of the existence of the mortgage would have barred redemption by the person claiming to be mortgagor. (1) And the claimant who had done nothing whatever to keep the equity of redemption from becoming barred, conduct claim that equity which had been preserved by some one else, who had preserved it for his own benefit alone, openly asserting and exercising the right to do so as against that claimant.
24. And limitation does not begin to run against a plaintiff until he is under some necessity or duty to assert his title: Dewan Manwar Ali v. Unnoda Pershad Roy ; Mussumat Bebea Sahodra v. Roy Jung Bahadur (1886) L.R. 8 IndAp 210.
25. 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 (1879) L.R. 7 I.A. 1instance, his right as heir to represent the original mortgagee, or his right, as in Parmanandas v. Jamnabai 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 doub(1885) 10 Bom. 49 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, end, therefore, he becomes entitled (and it is necessary and his duty, if he does not want his right to be barred) to claim possession and immediately.
26. In the present case there was admittedly on the finding of the lower Appellate Court no notice or knowledge, or circumstance that could have given notice or knowledge to the mortgagor, that the defendants' possession was either commenced or continued in opposition to, or displacement of, his rights, or that it would prevent him, on occasion arising, from resuming his power to deal with the' subject-matter. He had no reason to suppose that his rights were invaded. And until he, had such reason, he could not be under any necessity to take action for recovery. The possession of defendants, therefore, was not adverse to the plaintiffs from the first, and it has not been found that anything has occurred which could have made it so, for a period sufficient to bar this suit.
27. The decision of the lower Appellate Court, is based on a mistaken notion of the law as to what constitutes adverse possession and must, therefore, be set aside, and as unfortunately that Court has failed to decide the further issue arising in the case as to the right of the plaintiffs to redeem, the decree must be reversed and the case remanded for a decision on the merits. Costs will abide event.
28. The facts as held established by the lower Appellate Court are as follows:
Plaintiffs 1 and 2 are the daughters, and plaintiff 3 the grandson, of the mortgagor Khutubsha, wife of Kondi. Defendants 2 and 3 are the sons of Kondi's brothers. Defendant 1 is the mortgagee. The mortgage was created in 1866. At some time prior to 1885 defendants 2 and 3 entered on the land as the mortgagee's tenants, and presently asserted themselves as mortgagors. They took the mortgagee before a conciliator in 1885 and arrived at an agreement (Exhibit 114) whereby they affirmed his right, and agreed that the mortgage-debt was to be paid off in annual instalments of Rs. 8, the defendant retaining possession of the land. It is said that these payments were duly made, so that the lien was extinguished in 1897.
29. The agreement is dated 21st August, 1885. It was filed as a decree on 27th November, 1885. Plaintiffs commenced the present proceedings on 5th October, 1897, i.e., more than twelve years after the date of the agreement, but less than twelve since it was filed.
30. On these facts the District Judge has apparently held that the defendants 2 and 3 have not been in adverse possession of the mortgaged property, but that they have been in adverse possession of 'the equity of redemption' from 21st August, 1885, because a' it is clear that defendants have claimed to bold this as owners and to the exclusion of the plaintiff since that date.'
31. The District Judge further held that it is true that in the present case the plaintiffs had no notice that the defendants had usurped the equity of redemption but considered that the plaintiff's suit for redemption is governed by Article 144, Schedule II to the Limitation Act, XV of 1877 and was barred by twelve years' adverse possession of defendants 2 and 3.
32. Taking the facts as found by the lower Appellate Court, if the defendants 2 and 3 had in fact no right to redeem the plaint land mortgaged to defendant 1, their possession is no better as regards adverse possession than if they had taken from the mortgagee, defendant 1, a transfer or assignment of his mortgage.
33. The decree must, therefore, be reversed and the case remanded for a decision on the merits.