Skip to content


Tairamiya Pirsaheb Patarjet Vs. Shibelisaheb Fakirsaheb Dundage - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberAppeal from Order No. 49 of 1918
Judge
Reported in(1920)22BOMLR802
AppellantTairamiya Pirsaheb Patarjet
RespondentShibelisaheb Fakirsaheb Dundage
DispositionAppeal dismissed
Excerpt:
.....also.;in 1882, the plaintiff's father mortgaged certain lands with possession. the original mortgagees mortgaged the lands with defendants in 1883. the plaintiff sued to redeem his mortgage in 1916, when the defendants resisted the suit on the ground that his claim against them was barred under article 134 of the limitation act:-;that the suit was quite in time, for it was governed by article 148 and not by article 134 of the indian limitation act, 1908.; per maclcod c.j.-'a suit to recover possession is not the same thing as a suit to redeem, and a mortgagor's right to redeem, the period of limitation for which is sixty years under article 148, will not be defeated merely because his mortgagee transfers the mortgage to another person.' - - 146 appears to be conclusive on this..........nos. 95, 104 and 525 from the defendants that might be in possession of the same. the plaintiff's claim for possession of plaint portions of survey nos. 95, 104 and 525 was dismissed.2. in appeal the lower appellate court has held that the plaintiff can recover possession of those three survey nos. 95, 104 and 525 upon paying what might be found due to defendants nos. 19, 23, 24 and 25 on an account being taken under the dekkhan agriculturists' relief act. these particular defendants have now appealed. they claim that the plaintiff's suit as against them is barred under article 134 of the indian limitation act. that article refers to a suit to recover possession of immoveable property conveyed or bequeathed in trust or mortgaged and afterwards purchased from the trustee or mortgagee for.....
Judgment:

Norman Macleod, Kt., C.J.

1. This was a suit for redemption against a large number of defendants to redeem certain Survey Numbers from a mortgage executed by the plaintiff's father to certain mortgagees. A decree was passed by the lower Court declaring that there was nothing duo on the plaint mortgage and directing that the plaintiff should recover possession of the plaint mortgaged lands, except the mortgaged portions of Survey Nos. 95, 104 and 525 from the defendants that might be in possession of the same. The plaintiff's claim for possession of plaint portions of Survey Nos. 95, 104 and 525 was dismissed.

2. In appeal the lower appellate Court has held that the plaintiff can recover possession of those three Survey Nos. 95, 104 and 525 upon paying what might be found due to defendants Nos. 19, 23, 24 and 25 on an account being taken under the Dekkhan Agriculturists' Relief Act. These particular defendants have now appealed. They claim that the plaintiff's suit as against them is barred under Article 134 of the Indian Limitation Act. That Article refers to a suit to recover possession of immoveable property conveyed or bequeathed in trust or mortgaged and afterwards purchased from the trustee or mortgagee for a valuable consideration. In this case apparently the argument is that because the defendants are mortgagees from the original mortgagee of these Survey Numbers the plaintiff's suit as against them is barred after twelve years from the date of the transfer of the original mortgage. The case of Bagas Umarji v. Nathabhai Utamram ILR (1911) 36 Bom. 146 appears to be conclusive on this question, for it appears obvious that a suit to recover possession is not the same thing as a suit to redeem, and a mortgagor's right to redeem, the period of limitation for which is sixty years under Article 148, will not be defeated merely because his mortgagee transfers the mortgage to another person. I agree with the argument of the learned appellate Judge in discussing this question, and the appeal therefore fails and must be dismissed with costs.

Heaton, J.

3. I agree that Article 134 of the Schedule to the Indian Limitation Act does not cover the case we are dealing with. The suit is a suit for redemption and such a suit is covered by Article 148. The mortgaged debt has been paid off by the profits of the land, the mortgaged property being in the possession of the mortgagee. So far, therefore, the plaintiff is entitled to possession of the whole of the mortgaged property. But his claim is resisted in respect of three Survey Numbers by certain of the defendants who purchased these Numbers from the mortgagee. Of course the mortgagee had no right to sell them, and so these defendants have not acquired any title merely by reason of their purchase. At least they have not acquired anything better than such title as the mortgagee could convey to them. Being without title to the property, or at any rate a title which enables them to resist the plaintiff on that ground, they must of course surrender possession to the plaintiff, unless they have a claim on some other ground. The only ground, so far as I can see, on which they could have a claim would be adverse possession. They have been placed in the position of mortgagees by the lower Court. The debts due to them which are the prices paid by them for their purchases are to be paid by the plaintiff claiming redemption. That is the most they could possibly be entitled to, unless they establish a title by adverse possession against the plaintiff mortgagor who seeks to redeem. Whether they have done so or not is primarily a question of fact. It has been found by the lower appellate Court that they have not established a title by adverse possession other than a title to be redeemed. Nothing has been said to us in argument in this appeal to load us to suppose that the lower appellate Court made any mistake of law in arriving at this conclusion. I agree, -therefore, that this appeal must be dismissed with costs.


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