Norman Macleod, Kt., C.J.
1. The plaintiff sued to eject the defendant, to recover possession of the plaint land and for arrears of rent. The defendant claimed that the plaint land belonged to his family from ancient time by Miras rights. The land originally belonged to one Balaji who mortgaged it to Shiralkar. The plaintiff purchased the equity of redemption of Balaji on the 18th of October 1910 and acquired the interest of the mortgagee Shiralkar by an award decree in original Suit No. 686 of 1911. He thereby became full owner of the plaint laud. The defendant claimed that he had become entitled to Miras rights in the land by adverse possession. Undoubtedly a tenant can set up against f his landlord a claim to hold under more favourable terms of tenancy than those which the landlord is prepared to concede, and he can acquire such rights by prescription. The only question in this case is, whether we are satisfied that under the law the defendant has acquired the Miras rights by adverse possession. His claim to such title depends entirely upon the fact that in Suit No. 226 of 1895 he contended that he was a Mirasdar. That suit was filed by the mortgagor Balaji's daughter and heir for redemption of the mortgage against the mortgagee, Krishnaji Shiralkar. The present defendant was joined as a party as he was cultivating one of the mortgaged lands as a tenant under a lease, Exhibit 72, and a Kabulayat, Exhibit 73. The Judge said:' The defendant No. 4 also contends that he has been in cultivation of the land Survy No. 888 for upwards of 100 years and claims Miras rights over it. The rent-notes put in here in Exhibits 59 and 77 coupled with plaintiff's admission that she has to contribute Rs. 22-8-0 annually for Survey Nos. 497 and 522 give good reason for saying that the contentions of defendants 2, 3 and 4 are not without foundation. These contentions cannot conveniently be decided in this suit. The plaintiff, therefore, must be referred to a separate suit in ejectment against defendants 2, 3 and 4. It has been argued that this contention raised in the former suit has been considered probable by the Court and hence defendant is a Mirasdar. However, nothing an be more clear than the fact that the Court expressly treated that question as not directly and substantially in issue and the mere expression of opinion as to probabilities in that judgment cannot be regarded as a decision of the question'. The learned trial Judge then considered what was sufficient to constitute a commencement of adverse possession of a superior tenure by a tenant, and he says : 'The mere assertion of such a nature is not sufficient to constitute adverse possession. As between the holder of a superior and that of an inferior tenure, where things go on in accordance with the terms of the tenure, no adverse possession on the part of the holder of the under-tenure can arise and there must be a distinct claim on his part of some right inconsistent with the tenure before he possession can become adverse to his superior landlord. There must be a distinct claim in opposition to the right of the landlord which is brought to his notice and acquiesced in. The mere fact that tha landlord on hearing of the claim does not take active steps against the tenant does not necessarily amount to acquiescence. The learned Judge, therefore, considered that the defendant had not become a Mirasdar by adverse possession, and passed a decree directing the defendant to put the plaintiff in possession. In first appeal this decree was reversed, the plaintiff's claim for possession was rejected and the defendant was directed to pay enhanced rent. The learned Judge relied on the decision of Thakore Fatesingji v. Bamanji A. Dalal. I.L.R. (1903) Bom. 515 : 5 Bom. L.R. 274. I see no reason to dissent from the decision in that case. But the principles laid down there must be applied to the facts of each case as they arise. 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. Mul Chand I.L.R. (1901) All 395,. That was a very similar casa where the plaintiff purchased the equity of redemption and then brought a suit to redeem. The claim was made by the defendant that he had acquired a title by adverse possession before the mortgage had been redeemed. The learned Judges said : ' It has been more than once laid down by the High Courts of this country that possession which may be adverse to the mortgagee is not necessarily adverse to the mortgagor, the reason being that the possession adverse to the mortgagor can only arise after the mortgagor has become entitled to immediate possession. Here the mortgagor was not entitled to such possession, nor would ha be entitled to it until he redeemed the mortgage'. In this case although the defendant may have asserted in 1895 that he had the Miras rights, the mortgagor was not entitled to eject him. He was not entitled to take any steps until he redeemed the mortgage, and that really was the effect of the decision in that suit of 1895. The Judge in that case may have told the plaintiff he must file a separate suit in ejectment against defendants 2, 3 and 4, but I cannot think that he thereby decided that the plaintiff had an immediate right to that suit before he had redeemed the mortgage. Therefore this is not a case where a party takes proceedings in a certain Court and he is told that he has not appealed to the proper Court and is referred to another Court. It depends entirely whether he would be entitled in the circumstances of the case to appeal immediately to that other Court. It is clear that if he had filed a separate suit against the defendant, he would have been given the same answer, that as mortgagor before redemption he had no right to file a suit.
2. In my opinion, therefore, this appeal must be allowed and the decree of the trial Court restored.
3. Costs of the appeal and of the lower appellate Court to follow the event.
4. I concur. I think in the circumstances of the present case the fact that the mortgagor, whose interests are now vested in the defendant, could not obtain immediate possession until the mortgage had actually been extinguished is fatal to the plea that the defendant has obtained a title by adverse possession. It might have been different if the defendant had brought a suit under the Mamlatdars' Courts Act against the mortgagor or rather his representative, and obtained an order restraining the latter from interfering with his possession. For in that case the circumstances would be similar to those in Bapu v. Mahadaji I.L.R. (1893) Bom. 348 where it was held that the defendant had acquired a title by adverse possession both against the mortgagor and against the mortgagee. But in the present case the redemption suit of 1895 cannot be treated on the same footing. The decision in that suit merely amounts to saying that a redemption suit of that kind was not a proper one in which to decide the question of title or the defendant's right to continue in possession. It cannot, therefore, in my opinion, be said that the defendant ' successfully resisted ' the plaintiff's claim to evict him in that suit within the meaning in which those words are used in Budesub v. Hanmanta I.L.R. (1896) Bom. 509. Nor does the principle laid down in Thakore Fatesingji v. Bamanji A. Dalal I.L.R. (1903) Bom. 515 : 5 Bom. L.R. 274 assist the defendant in this case. There it is said : ' If the tenant not only openly asserts to the knowledge of the owner an adverse interest, but proceeds to enjoy benefits claimable only on the basis of that interest, his possession at once becomes adverse and limitation begins to run against the owner from that time '. But in the present case the defendant did not enjoy any benefits other than those derived from his being a tenant under the mortgagee, so that under the principle there laid down, the defendant's possession was not adverse to the mortgagor.
5. I concur, therefore, in allowing the appeal.