Skip to content


Shukar Hanan Mutawali and ors. Vs. Malkappa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 216 of 1973
Judge
Reported inAIR1980Bom213; 1980MhLJ725
ActsLimitation Act, 1963 - Schedule - Articles 64 and 65; Transfer of Property Act, 1882 - Sections 60 and 83; Code of Civil Procedure (CPC), 1908 - Order 2, Rule 3 - Order 20, Rule 12
AppellantShukar Hanan Mutawali and ors.
RespondentMalkappa and ors.
Appellant AdvocateK.J. Abhyankar, Adv.
Respondent AdvocateN.D. Hombalkar, Adv.
Excerpt:
property - possession of land - sections 60 and 83 of transfer of property act, 1882 - appeal filed against dismissal of suit filed by appellants for redemption of mortgages and for possession of mortgaged lands - suit dismissed on ground that appellants were not heirs of original mortgagor - suit was also pleaded as bad for multifariousness - circumstances establish that appellants were heirs of original mortgagors - as appellants were legal heirs of original mortgagors they can unite in this suit several causes of action against same defendants jointly -suit cannot be said to be barred by multifariousness - dismissal of suit set aside. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not.....1. this second appeal has been preferred by the plaintiffs against the concurrent decrees of the two courts below dismissing their suit for redemption of the mortgages and for possession of the mortgaged lands.2. one shaikh farid alias bada saheb bawa miraj mutawalli had mortgaged the land from survey no. 442 as described in para (1) (a) of the plaint with malkappa anna nakate for rs. 500/- on 30th october, 1877. the period of mortgage was four years. one ashama wife of sultan mutawalli had mortgaged some land from the said survey number with malkappa on 1-12-1897. the period of the mortgage was 15 years, one lalbi wife of nabi mutawalli had mortgaged some land from the said survey number with the same malkappa on 28-8-1897. the first mortgage was for a consideration of rs. 500/-, the.....
Judgment:

1. This Second Appeal has been preferred by the plaintiffs against the concurrent decrees of the two courts below dismissing their suit for redemption of the mortgages and for possession of the mortgaged lands.

2. One Shaikh Farid alias Bada Saheb Bawa Miraj Mutawalli had mortgaged the land from Survey No. 442 as described in para (1) (a) of the plaint with Malkappa Anna Nakate for Rs. 500/- on 30th October, 1877. The period of mortgage was four years. One Ashama wife of Sultan Mutawalli had mortgaged some land from the said survey number with Malkappa on 1-12-1897. The period of the mortgage was 15 years, One Lalbi wife of Nabi Mutawalli had mortgaged some land from the said survey number with the same Malkappa on 28-8-1897. The first mortgage was for a consideration of Rs. 500/-, the second for a consideration of Rs. 500/- and the third mortgage was for a consideration of Rs. 80/-. All were usufructuary mortgages. Three different pieces of lands appeared to have been mortgaged under these three mortgages, though from the same survey number. The area of the land mortgaged under the first mortgage was 5 acres 36 1/2 gts., under the second mortgage 2 acres 10 gts. and under the third mortgage 1 acre. All these three pieces of lands have now been included in R. S. No. 581 Pot No. 4 admeasuring an area of 12 acres 14 gts. The original mortgagors are dead. According to the plaintiffs the right of redemption of the mortgages had come to their branch. The plaintiffs have given the family geneology in the plaint. The plaintiffs filed Misc. Application No. 14 of 1968 for getting possession of these lands under Section 83 of the Transfer of Property Act and deposited the mortgage amount. The defendants, however, refused to hand Over the possession. The plaintiffs have, therefore, filed this present suit for redemption of the mortgages and for possession of the suit lands. Defendant No. 1, according to the plaintiffs is the grandson of the original mortgagee who is dead. The plaintiffs alleged that the lands are in possession of defendants Nos. 2 to 18 through defendant No. 1. As defendants Nos. 2 to 18 are in possession of the lands, they are impleaded as defendants. On these averments the plaintiffs instituted the present suit for redemption and possession of the mortgaged lands. Defendant No. 1 remained absent and the suit proceeded ex parte against him.

3. Defendant No. 8 by his written Statement at Exh. 24 denied the plaintiffs claim. He denied the genealogical table given by the plaintiffs in the schedule attached to the plaint. He contended that the plaintiffs were not the heirs of the debtors i.e. the original three mortgagorsand that therefore they have no right to redeem the said mortgages. It was further contended that the alleged right of redemption in regard to the third mortgage was not within the limitation. It was pointed out that the area of the land R. S. No. 581 Pot No. 4 was 12 acres and 14 gunthas; that the whole of that land was in his possession; that the land from the three mortgages is 9 acres 6 1/2 gts. The defendant contended that the remaining area of 3 acres 7 1/2 gts. was in his possession as owners. The defendant contended that as this land of 3 acres 7 1/2 gts. was not included in any of the mortgage deeds, the plaintiffs had no right to redeem the same. The defendant alleged that the heirship of original mortgagors Farid, Ashama and Lalbi had come to defendants Nos. 2 and 3 and to the father of defendant No. 4 and to the father of defendants Nos. 5 to 7. It was alleged that they had redeemed the land which was mortgaged by paying the mortgaged amount to original creditor Nakate on 2-2-1946. It was contended that since then the said land is in possession of defendants as owners to the knowledge of the plaintiff. As all the mortgages are already redeemed, the right of redemption is not in existence. The plaintiffs' contention that defendant No. 1 or his ancestors had acknowledged the mortgages described in paragraph 1 (c) of the plaint, i. e. the third mortgage and that therefore the plaintiffs' suit is not barred by limitation in regard to that mortgage was denied. It was then contended that as the suit land is in possession of the defendants for more than 12 years openly and peacefully, he has become owner of the said land by adverse possession also. It was then contended that as the debtors i. e. the mortgagors of the lands and the three mortgages are different, the plaintiffs are not entitled to get the relief of redemption in one suit, even assuming that they are the heirs of the said mortgagors. It was pleaded that the suit is bad for multifariousness. As the points based on some other contentions are not pressed, it is not necessary to refer to other averments in the written statement.

4. Defendants Nos. 2 to 7 and 9 to 18 by their purshis (Exh. 26) adopted the contentions raised by defendant No. 8.

5. At the trial the plaintiff No. 1, Shukur examined himself. Two more witnesses were examined on behalf of the plaintiffs to prove the genealogical table. Two witnesses were examined on behalf of the defendants including defendantNo. 2. On consideration of the oral and documentary evidence produced at the trial, the learned trial Judge round that the plaintiffs had failed to prove the genealogical table given in Schedule A of the plaint. However, on other evidence on record, the learned Judge held that the plaintiffs had proved that they were the legal heirs of the original mortgagors. The defendants' contention that the plaintiffs' suit regarding the third mortgage dated 28-8-1897 was not within limitation was negatived. It was held that the father of the defendants Nos. 2 to 4 and Mira, father of defendants Nos. 5 to 7, had redeemed the lands under three mortgages, on 2-2-1946 and also got possession of the said lands. The defendants' contention that they had become the owners of the suit land by adverse possession was upheld. Their further contention that the suit was barred by multifariousness was also upheld. In view of these findings, the learned trial Judge held that the plaintiffs were not entitled for redemption and possession of the suit land and that therefore their suit was liable to be dismissed. Accordingly, he proceeded to dismiss the plaintiffs' suit.

6. Being aggrieved, the plaintiffs preferred an appeal to the District Court. The learned Extra Assistant Judge, Sangli confirmed the finding of the learned trial Judge that the defendants' possession had become adverse to the plaintiffs. It appears that no other point was urged before the learned Assistant Judge. The plaintiffs' appeal was consequently dismissed.

7. Both the courts below found that the defendants had redeemed the three mortgages; that their possession after this redemption was no more than that of strangers and they were not subrogated to the rights of the mortgagees; that the plaintiffs had immediate right to take possession; that possession of the defendants, therefore, was adverse to the plaintiffs. Both the courts found that the possession of the defendants was adverse to the plaintiffs because the plaintiffs had knowledge of the possession of the defendants after redemption. In holding that the plaintiffs had knowledge of the possession of the defendants after redemption in 1946, the learned Judges pointed out that the lands were from the same town viz. Miraj, that the plaintiffs and the defendants had got lands adjacent to these lands, that they were from the same community. They further pointed out that the landswere entered in Government records in the name of four persons i. e. the predecessors of the defendants who redeemed the mortgages in the year 1946. It was further found that the defendants were in possession from 1946 to 1968 i. e. the year in which the suit was filed and this circumstance also was sufficient to show that the plaintiffs had knowledge and/or notice of the possession of the defendants. They pointed out that it spite of the defendants being in possession for a long time, the plaintiffs had not taken any action right from 1946 to 1968.

8. Mr. K. J. Abhyankar, the learned counsel for the appellants-plaintiffs submitted that the finding of the two courts below that the possession of the defendants was adverse to the plaintiffs was erroneous. He submitted that it was not sufficient to show that the defendants were in possession of the suit lands from 1946 to the knowledge of the plaintiffs. According to the learned counsel, it was further necessary for the defendants to show that their possession was adverse, in the sense that they were holding the lands in denial of the plaintiffs' right to redeem the same. The learned counsel contended that the possession would not be adverse unless the defendants had at any point of time denied the plaintiffs' right to redeem. He submitted that the observation in paragraph 14 of the judgment of the lower appellate court that admittedly the mortgages were redeemed by the defendants in 1946 is not correct. According to him the plaintiffs have not admitted that the defendants redeemed the mortgages. At any rate, the learned counsel submitted that there is no material on record to hold that the plaintiffs got knowledge in 1946 or thereafter that the defendants had purported to redeem the mortgages. It was submitted that no adverse possession would start against the mortgagors prior to the redemption of the mortgaged lands by the mortgagors. At any rate, no adverse possession would commence unless the rights of the mortgagors are denied by the persons in possession. It was pointed out that there is no finding of the two courts below that at no time the defendants had asserted their right as against the plaintiffs to remain in possession and that the defendants had denied the right of the mortgagors plaintiffs to redeem the lands. It was also submitted that the defendants purported to redeem the lands contending that they were the heirs of the original mortgagors. After redemption the possession of thedefendants, therefore, could not be adverse to the plaintiffs, because according to the learned counsel there could be no animus on the part of the defendants to possess the land adversely to the plaintiffs.

9. As against this, Mr. Hombalkar, the learned counsel for the respondents-defendants, submitted that the two courts below had concurrently found that the defendants had redeemed the lands, that they were in possession of the lands from 1946 and that the plaintiffs had knowledge or notice of the defendants' possession. He submitted that the plaintiffs and the defendants are from the same community and from the same village and that their lands are adjacent to each other and that, therefore, the plaintiffs should be presumed to have knowledge of redemption of the mortgages by the defendants. The learned counsel submitted that the possession of a stranger could be adverse to the mortgagor even prior to redemption of the mortgage if it could be shown that the strangers were in possession of the lands to the knowledge of the mortgagors. According to the learned counsel, the plaintiffs must have got the knowledge of the redemption of the suit lands by the defendants right in the year 1946 and that possession of the defendants after that year should be presumed to be adverse to the plaintiffs.

10. Both the learned counsel relied upon a number of decisions in support of their respective contentions. Before I proceed to consider the rival submissions made before me by the learned counsel, I would refer to a few decisions having bearing on the points involved. In Periya Aiya Ambalam v. Shunmugasundaram ILR 38 Mad 903 : AIR 1914 Mad 334 (2)), it has been held by the Full Bench of the Madras High Court

'Where a trespasser dispossesses a mortgagee in possession and continues in possession asserting a title adverse to the mortgagor also, such dispossession will be adverse to the mortgagor from the time the mortgagor has knowledge of the assertion (though he may not then be entitled according to the terms of the mortgage to recover possession from the mortgagee). The onus is on the trespasser to prove not only that he asserted a right adverse to the mortgagor but also that the latter knew it.'

Mr. Abhyankar, the learned counsel for the plaintiffs, invited my attention to the following observation in this case :--

'An equity of redemption may be lost by adverse possession; but for that purpose it is not sufficient for a trespasser, who has ousted a mortgagee, to prove that possession is held on an exclusive title, without also showing that it was acquired and retained with an assertion of an adverse title to the knowledge of the mortgagor.'

Reliance was also placed on the following observations in the said case :

'But if his mortgagee, who has beenplaced in possession by him, is followed by another person there is no presumption in law that such possession was taken without any right. He may be an assignee of the mortgagee, or one who purchases the mortgage as a mortgage; or he may be an adverse claimant to the mortgage right; where more than one inference may be drawn, that inference should not be drawn which imputes a wrongful act to a person. The defendant has therefore to show that he took possession of his property as absolute property in contradistinction to mortgage property.'

This aforesaid Madras decision arose out of a reference made to the Full Bench. The question referred for the decision of the Full Bench was :

'Where a trespasser dispossesses a mortgagor in possession (the mortgage being simple) or a mortgagee in possession (where the mortgage is usufructuary) is such possession of the trespasser adverse against the simple mortgagee in the one case or against the mortgagor who is not entitled to possession in the other case ?'

The reply to the reference was that possession may be adverse but whether it is so or not in any case will depend upon the facts of each case.

11. Certain decisions of our High Court may also be referred to with advantage. In Tarubai v. Venkatrao ILR (1903) 27 Bom 43, the plaintiffs filed the suit to redeem a mortgage with possession of certain land, dated 18th October, 1866. The plaintiffs 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. On the facts found the two lower courts held that the plaintiffs' suit was barred by limitation inasmuch as defendants had been in adverse possession for more than 12 years. In appeal to the High Court, reversing the decree of the lower courts and remanding the case, it was held that the suit was not barred by limitation. It was observed that the possession of the defendants was not adverseto the plaintiffs inasmuch as there was no notice or knowledge or circumstance that could have given notice or knowledge to the plaintiffs (mortgagors) that the defendants' possession was in displacement of their rights; that they had no reason to know that their rights were invaded and until they had such reason there could be no necessity for them to take action.

12. A reference was made in Tarubai's case (supra) to the decision of a Division Bench of this Court in Chinto v. Janki ILR (1894) 18 Bom 51 where Telang, J. had observed that possession would not be adverse to the mortgagor because he was not entitled to immediate possession; i. e. to say that if the plaintiff-mortgagor was not entitled to immediate possession then the defendant's act in taking possession would not infringe any right of the plaintiffs to possession and would not be adverse to the plaintiff. Referring to those observations, it was observed in the case of Tarubai that if the ouster of the mortgagee were such as to operate as a Virtual dispossession' of the mortgagor, the mortgagor would be entitled to claim immediate possession. It is further observed in Tarubai's case that before adverse possession would commence against the mortgagor, notice to him would be essential from which the mortgagor would become aware that his rights had been invaded. On consideration of the facts found by the two courts below it was observed that on the findings of the courts below there was no notice or knowledge of 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 decision of the lower courts having been found to be based on a mistaken notion of the law as to what constitutes adverse possession was set aside and the matter was remanded to decide the further issues arising in that case as to the rights of the plaintiffs to redeem.

13. A reference may be made to another decision of the Division Bench of this Court in Digamber v. Ramratan AIR 1947 Bom 471. In that case, the facts in substance were that a suit for possession was brought by the purchaser of the mortgaged property in execution in enforcement of the mortgage. It was held that the suit was barred by limitation inasmuch as the defendant (who had ousted the possessory mortgagee) had been holding in his own right as owner for more than the statutory period to the knowledge of the person representing the mortgagor's interest. It was pointed out in that case that according to the finding of the lower appellate court the person claiming right, title and interest of the mortgagor, had become aware of the fact that the person in possession viz. Anandibai was in actual possession in her own right i. e. as owner. A reference was made to certain decisions in which it was held on the evidence that the possession of the defendant was not adverse to the plaintiff inasmuch as there was no notice or knowledge or circumstance that could have given notice or knowledge to the plaintiff-mortgagors, that the defendant's possession was in displacement of their rights (having no reason to know that their rights were invaded). A reference was made in this case to the decision of the Madras High Court in Periya Aiya Ambalam v. Shunmugasundaram ILR 38 Mad 903 : AIR 1914 Mad 334 (2)) and the following observations therein were referred to with approval:

'Where a stranger dispossesses a mortgagee in possession, whether adverse possession will run against the mortgagor or not depends upon the fact whether there was dispossession of the mortgagor also. Mere dispossession of the mortgagee will not amount to such adverse possession; there must be at least notice to the mortgagor that possession is held against him also.'

Approving the said observations in ILR 38 Mad 903 : AIR 1914 Mad 334 (2)) it was held:

'When the owner of the property in possession is dispossessed the trespasser's possession is clearly adverse to him from its inception, as, to his knowledge, the property is held against his will, and he must assert his right within twelve years of his dispossession. But if his mortgagee, who has been placed in possession by him, is followed by another person there is no presumption in law that such possession was taken without any right. He may be an assignee of the mortgagee, or one who purchases the mortgage as a mortgage; or he may be an adverse claimant to the mortgage right; where more than one inference may be drawn, that inference should not be drawn which imputes a wrongful act to a person. The defendanthas, therefore, to show that he took possession of his property as absolute property in contradistinction to mortgage property.'

It would be convenient to refer to one more decision of a single Judge of Allahabad High Court in Asharfi Devi v. Prem Chand : AIR1971All457 wherein it is observed:

'The right of redemption in respect of an immovable property which is subject to a usufructuary mortgage is a right in immovable property. Though it is an intangible property it is fully capable of transfer by the mortgagor, and the transferee can also enter in possession of that right. In appropriate cases this right of redemption can also be subject to adverse possession by a trespasser. What those appropriate circumstances are would depend on the facts of individual case. Ordinarily when the mortgagor has no visible link with the mortgaged property during the subsistence of a usufructuary mortgage, he is not disturbed from his notional or constructive possession over his equity of redemption simply because a transaction with regard to that right of redemption has been made between third persons who have no legal right in the property. If, however, such transfer is made to the knowledge of the mortgagor or by doing some overt act or otherwise the transferee asserts his claim to the equity of redemption to the knowledge of the real owner of the equity of redemption, it may amount to the transferee's possession being adverse to the real owner of the equity of redemption.'

14. It will thus be seen from the principles enunciated in the above cases that the rights of the mortgagor are liable to invasion equally with those of mortgagee. However, the party claiming to old adversely to the mortgagor has to prove that he was in possession in denial of mortgagor's right; mere must be something amounting to ouster of the person against whom adverse possession is claimed. There must be some adverse act sufficient to give a person to be affected by if an opportunity of knowing that his rights are being infringed and that occasion has arisen for action by him to protect them. There may be possession adverse to the mortgagee which is not adverse to the interest of the mortgagor. It has to be shown that the person in possession has openly acted so as to assail the right of the mortgagor to redeem. There must be a manifest assertion of title incompatible with that of the mortgagor. In other words,there must be something done or declared, excluding his (mortgagor's) power to resume possession at will. If the mortgagee, who has been placed in possession by the mortgagor is followed by another person there is no presumption in law that such possession was taken without any right. He may be an assignee of the mortgagee, or one who purchases the mortgage as a mortgage, or he may be an adverse claimant to the mortgage right; where more than one inference may be drawn that inference should not be drawn which imputes a wrongful act to a person. The defendant has, therefore, to show that he took possession of the property as absolute property to the knowledge of the mortgagor in denial of the rights of the mortgagor.

15. Now coming to the facts of this case, it is necessary to see whether the defendants have established that they were in possession adverse to the mortgagors for a statutory period. The question will have to be decided in the light of the principles stated above. The defendants claim that they were the heirs of the original mortgagors and that they have redeemed the mortgages from the original mortgagees. It has been found by the courts below that the plaintiffs were the heirs of the mortgagors. There is no material on record to show that the mortgages were redeemed by filing the suits in the court. The defendants relied upon the extract from the village form No. 6 at Exh. 46 in support of their contention that they had redeemed the mortgages. That extract shows that the persons mentioned therein had redeemed three mortgages from Mallappa Nakate. Intimation to that effect appears to have been given on 26th April, 1949 and the entry has been certified on 30-5-1951. The lower appellate court in paragraph 14 of the judgment has observed that admittedly the mortgages were redeemed by the defendants in 1946. The learned counsel for the respondents-defendants has not been able to show to me that there was any such admission on the part of the plaintiffs that the mortgages were redeemed by the defendants Nos. 2 to 18. All that is stated in the plaint in this behalf is defendant No. 1 was the successor-in-title of the mortgagee and defendants Nos. 2 to 18 were in possession of the lands through him in mortgagee's right. There is no averment in the plaint that these defendants have redeemed the mortgages. Similarly, there is no admission in the deposition of Shukur examined for the plaintiffs that the mortgages wereredeemed. When he was asked a question in that behalf in the cross-examination, he stated that he did not know whether the mortgages were redeemed. It is true that the extract from the village Form No. 6, Exh. 46, shows that there was redemption of the mortgages, by the defendants. There is, however, nothing on record to show that the entry in village form No. 6 was made after notice to the plaintiffs or that the plaintiffs had knowledge of that proceeding. As observed in Allahabad case Asharfi Devi v. Premchand : AIR1971All457 (supra) when the mortgagor has no visible link with the mortgaged property during the subsistence of a usufructuary mortgage, he is not disturbed from his notional or constructive possession over his equity of redemption simply because a transaction with regard to that right of redemption has been made between third persons who have no legal right in the property. If, however, such transfer is made to the knowledge of the mortgagor or by doing some overt act or otherwise the transferee asserts his claim to the equity of redemption to the knowledge of the real owner of the equity of redemption, it may amount to the transferees possession being adverse to the real owner of the equity of redemption. Reliance was heavily placed on behalf of defendants upon the Findings of the two courts below that the defendants were in possession of the suit lands and they must be in possession to the knowledge of the plaintiffs. All that the trial court has found is that there were circumstances on record to show that the defendants must be in possession of the suit lands from 1946 to 1968 to the knowledge of the plaintiffs; that the plaintiffs had notice of the possession of the defendants. I have already pointed out that the observations of the lower court that the plaintiffs had knowledge or notice about the redemption of the mortgages by the defendants does not seem to be correct, and are not based on any evidence.

16. The finding, therefore, recorded by the two courts below would come to this that the defendants must have been in possession of the land in question from 1946 to 1968. The question, however, would be whether on account of such possession the defendants would be able to assert that they were in possession adverse to the rights of the mortgagors-plaintiffs. There is absolutely no material on record to find that the defendants had, any time, done any acts or had made any declaration to the knowledge of the plaintiffs to showthat they were holding the lands as owners thereof. If the defendants would have succeeded in establishing that the plaintiffs had knowledge about the redemption of the lands and that they did not take any action for possession of the lands during the statutory period, it would have been possible for the defendants to argue that the possession of the defendants was adverse to the plaintiffs-mortgagors. As I have already pointed out the plaintiffs have not admitted that the defendants had redeemed the mortgages and there is no other material on record to show that the plaintiffs had such knowledge. As observed by this court in Digamber v. Ramratan AIR 1947 Bom 471 (supra), if the mortgagee who has been placed in possession y him (mortgagor) is followed by another person there is no presumption in law that such possession was adverse to the mortgagor. The person in possession in such case has to show that he took possession of the lands as absolute property in hostile assertion to the rights of the mortgagor. This defendants have failed to show. Assuming that the defendants had purported to redeem the mortgage when they had no right to redeem, their possession as observed in Tarubai's case ILR (1903) 27 Bom 43 is no better as regards adverse possession, than if they had taken from the mortgagee, defendant No. 1, a transfer or assignment of his mortgage. Differing, therefore, from the two courts below, I am disposed to hold that the defendants have failed to show that their possession was adverse to the plaintiffs-mortgagors. The burden of showing this, was normally on the defendants and they have not discharged that burden. On the findings of the two courts below that the plaintiffs are the heirs of the original mortgagors, the plaintiffs in my view would be entitled to redemption of the suit mortgages.

16-A. One of the contentions taken by the defendants was that the plaintiffs' suit was barred by multifariousness. That contention has been upheld by the trial court. The learned Judge accented the contention raised on behalf of the defendants that one suit for three mortgages was not maintainable as the mortgagors were not common. It appears that the contention that the plaintiffs' suit was barred by multifariousness, was pot taken up in the lower appellate court. The only question canvassed before the lower appellate court was with regard to the adverse possession claimed by the defendants. Any way, I would proceed to see whether the plaintiffs' suit is barred by multifariousness. Admittedly, the mortgagee in respect of thethree mortgages was the same. It is truethat the three pieces of lands were mortgaged by three different persons. However, on the facts found by the courts below, the plaintiffs arc legal heirs of theoriginal mortgagors. Mr. Abhyankar, thelearned counsel for the appellants, relyingupon the provisions of Order II Rule 3of the Code of Civil Procedure submitsthat as the plaintiffs are the legal heirs ofall the three original mortgagors they canunite in this suit several causes of actionagainst the same defendants jointly. Ithink, that submission is correct. I holdthat in view of this position the suit cannot be said to be barred by multifarious-ness.

17. One more contention that was raised on behalf of the defendants was that three pieces of lands were mortgaged under three mortgages. The pieces of lands so mortgaged were separate parcels of lands, having been described by the boundaries as stated in the plaint. All these three pieces are now included in Revision Survey No. 581 Plot No. 4 comprising an area of 12 acres 14 gunthas. The total area of the lands from three mortgages comes to 9 acres 6 1/2 gunthas. The defendants have contended that the remaining 3 acres 7 1/2 gunthas is the land of their ownership; that that land is not liable to be redeemed as it is not the subject-matter of any of the mortgages. The learned trial Judge has observed that the plaintiffs are not entitled to get possession of this remaining land. It would appear that the plaintiffs have sought to redeem the land in the whole of Revision Survey No. 581 Plot No. 4 It appears that the plaintiffs want to suggest that the whole of this land must have been mortgaged though they have set out only the particulars of the lands which were available to them. I do not think that the plaintiffs will be entitled to redemption and possession of whole of the land comprising in R. S. No. 581 Plot No. 4. From the averments in the plaint, it appears that three distinct pieces of lands comprising 9 acres 6 1/2; gunthas were mortgaged and the plaintiffs in my view would be entitled to redemption or those lands only.

18. It appears that the plaintiffs, before the institution of the present suit filed Misc. Application No. 14 of 1968 and deposited the mortgage amount in that proceeding with a prayer that the possession of the mortgaged lands should be deliver-ed to them. The defendants did not give the possession of the mortgaged lands to the plaintiffs. As the plaintiffs have already deposited the amount due on the mortgages the plaintiffs are in my view entitled to a decree for redemption and Possession of the suit lands.

19. In view of the above discussion, this appeal will have to be allowed.

20. In the result, this appeal is allowed. The judgments and decrees of the courts below dismissing the plaintiffs' suit for redemption and possession are set aside and instead it is ordered that the plaintiffs shall be entitled to redemption and possession of three pieces of lands out of R. S. No. 581 Plot No. 4 as described in the plaint. The defendants will be entitled to recover the amounts deposited as the mortgage money in Misc. Application No. 14 of 1968. Final decree for redemption will be drawn accordingly. There will be decree for mesne profits in favour of the plaintiffs under Order 20 Rule 12 of the Code of Civil Procedure. Respondents-defendants shall pay the costs of the appellants-plaintiffs throughout.

21. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //