S.N. Singh, J.
1. This appeal arises out of a suit brought by the plaintiffs for the redemption of a mortgage with possession in respect of a shop situate in erstwhile Tehri Garhwal State. The suit was filed on the 2nd of September, 1951, The plaintiffs' case was that they had mortgaged a shop in favour of Kabool Chand and Fateh Chand for a consideration of Rs. 1,600/- on the 29th of August, 1931, and had put the mortgagees in possession over the same. It was alleged that the mort--gage was for a period of eight years and it was stipulated in the mortgage deed that the mortgagors would not redeem in the first four years and that after the expiry of four years they would be entitled to redeem the mortgage at any time. The plaintiffs sued for redemption but without depositing the amount due and alleged that they would pay the money found due on accounting.
2. This suit was contested by the defendants mainly on the ground that it was time barred. It was also asserted that the mortgagees had purchased the right of redemption on payment of Rs. 400 more and that the mortgagees had spent about Rs. 3,000 over the repairs of the shop in dispute and it was asserted that the suit was liable to be dismissed.
3. Before the two courts below the only question which was mooted was one of limitation. Both the Courts have heldthat the suit was barred by limitation having been filed more than 11 years after the date of the accrual of the cause of action.
4. The plaintiffs have come up in appeal to this Court and the learned counsel for the appellants has raised two points for the consideration of this Court.
5. It was firstly contended that the right to redeem accrued on the expiry of eight years and not four years as held by the courts below, and before the expiry of the period of limitation, the State of Tehri Garhwal was merged in the State of : Uttar Pradesh and the Indian Limitation Act applied with the result that the plaintiffs could redeem the property within 60 years from the date of the accrual of the right of redemption.
6. Secondly it was contended relying on a decision of this court in the case of Suraj Ball v. Rang Bahadur : AIR1950All88 that even if the first contention was not accepted, the relationship of mortgagors and mortgagees subsisted between the parties at the date of merger, that is 1st of January, 1950 when the Uttar Pradesh Merged States Act 1950 came into force. It was contended that in the Tehri Garhwal State's Limitation Act there was no provision like Section 28 of the Indian Limitation Act with the result that although the remedy of the plaintiffs might have been barred but their right was not extinguished and they were entitled to recover possession on payment of the mortgage money.
7. I have heard the learned counsel for the parties in support of their respective contentions on the two points raised by the learned counsel for the appellants and after having heard them I am of opinion that the decision of the two courts below has to be upheld.
8. This case conies from the area which was in the erstwhile Tehri Garhwal State. Tehri Garhwal had its own Limitation Act before the merger. In Tehri Garhwal before the merger a suit for redemption could be filed within 11 years of the accrual of the right of redemption. The relevant Article was Article 117 of the Tehri Garhwal State's Limitation Act, It read as follows :--
u- flyflykukfy'k vihy ;k nj[kkLr dh fdLefe;kndcls fe;kn fxuh tk;xh117cU/kd jD[kh gqbZ LFkkoj laEifrjgu'kqnk tk;nkn xsjs eudwyk ds bZufddkd ckcr ukfy'k11 o'kZtc rd bufddkd gks ml rkjh[k lsA
The above shows that a suitor could institute a suit for redemption within 11 years of the accrual of the right of redemption. In the present case, the mortgage in dispute was executed on the 29th of August, 1931 payable in 8 years and there was a definite stipulation in the document that for the first four years the mortgagors could not redeem the mortgage. Thereafter they were permitted to redeem the property on payment of the mortgage amount due. The terms of the mortgage clearly show that the right to redeem accrued to the mortgagors just after the expiry of four years i. e., the mortgagors could redeem the property any time after the 29th of August, 1935 with the result that the time began to run from this date. A suit for redemption could be filed within 11 years of this date upto the 29th of August 1946. The present suit was instituted on the 2nd of September, 1951 much beyond the period of limitation and was clearly barred by time as held by the two courts below. The contention of the learned counsel for the appellants that the right given to the mortgagors to redeem after four years was only for the benefit of the mortgagors and the right to redeem accrued only afterthe expiry of eight years does not appeal to me. Learned counsel for the appellants has supported his submission by relying on the cases of Lasa Din v. Mst. Gulab Kunwar, , Swayamber Singh v. Ghasite Ram : AIR1952All479 , Harbans Narain Singh v. Ramdhari Mahton : AIR1960Pat51 and Shiam Lal v. Jagdamba Prasad : AIR1928All131 ). I have looked into the cases cited by the learned counsel but I find that the principle of law laid down in those cases cannot be applied to the facts of the present case. (Supra) and : AIR1952All479 (supra) are the cases of instalment bonds wherein the debtor was allowed to pay within a certain period by instalments but there was a clause that in default of certain instalments the creditor was entitled to realise the entire amount. It was held that the right given to the mortgagee was for the benefit of the mortgagee and this benefit could be waived by him. These cases have interpreted Articles 75 and 132 of the Limitation Act and are distinguishable : AIR1960Pat51 (Supra) deals with Article 148 of the Limitation Act and it held that 60 years' rule of limitation starts fromthe date when the right to redeem accrued. I do not think that this case is at all helpful to the appellants. In 25 All LJ 1051 (supra) which is equivalent to AIR 1928 A13 131, it was held as follows :--
'In the absence of any agreement, expressed or implied to the contrary, the right to redeem and the right to foreclose must be regarded as co-extensive,
The mere use of the words 'Andar Miyad' in the mortgage-deed is not enough to evidence a contract to the effect that the mortgagor is given a right to redeem before the expiry of the stipulated period for which the mortgage is effected.'
In this case it was also held that the mortgage being for a period of 15 years any suit instituted before the expiry of the period was premature. It is well settled that in the absence of any agreement express or implied to the contrary, the right to redeem and the right to foreclose must be regarded as co-extensive vide Vad.iu v. Vadju, (1880) ILR 5 Bom 22. We have to see as to whether there is any express or implied agreement to the contrary in the present case or not. The term of the document has already been given above and it shows that there was an agreement to the contrary. The intention of the parties in the present case was that although the right to foreclose would arise after the expiry of eight years, right to redeem could be exercised after the expiry of four years. To me it appears that the intention of the parties was clear that after the expiry of the first 4 years the mortgagors were given a right to redeem and right of redemption accrued to the mortgagors on the expiry of four years.
9. In the case of Bageshari Tewari v. Nandoo Singh : AIR1937All32 this Court had occasion to consider a mortgage deed wherein the mortgagor mortgaged land to mortgagee on 5th October, 1869 with a stipulation in the mortgage deed that mortgagor might redeem the mortgage in the month of Jeth of any year within the period of ten years; and if mortgagor failed to redeem within ten years mortgagee would become the owner of the property. Mortgagor instituted a suit for redemption more than 60 years after the first Jeth succeeding 5th October 1869, the date of mortgage. It was held that the suit was barred under Article 148 of the Limitation Act. This case clearly supports the view that I have taken in this case and this has considered the Division Bench case of : AIR1928All131 (supra). For the reasons given above and the reasons given in this authority I am of opinion that the suit instituted in the present case was barred by limitation.
10. In view of this finding it is clear that before the erstwhile Tehri GarhwalState was merged in the State of Uttar Pradesh the right to file a suit had come to an end. A right which had come to an end when the Indian Limitation Act was made applicable to this area could not be revived unless there was express provision in the merger order. In absence of any express enactment about retros-pectivity the Indian Limitation Act could not be applied retrospectively to the facts of this case.
11. Now coming to the second contention of the learned counsel for the appellants, it is true that there is no provision like Section 28 of the Limitation Act in the Tehri Garhwal State's Limitation Act but it has been variously held that where Section 28 of the Limitation Act is not made applicable, the principle thereof can be applied, vide Dalip Rai v. Deoki Rai, (1899) ILR 21 AH 204 (FB), Kartar Singh v. Kharkha, AIR 1935 Lah 787 and Nanda Kumar Dev v. Aiodhya Sahu, (1912) 16 Cal WN 351 at page 354 (D. B.). In view of these authorities it has to be held that although there was no provision like Section 28 of the Indian Limitation Act in the Tehri Garhwal State's Limitation Act, the principle underlying the section was applicable and the right of the plaintiff-appellant got extinguished after the expiry of the period of limitation.
12. Learned counsel for the appellants submitted that in order to apply Section 28 of the Limitation Act or principles thereof, adverse possession or independent possession of the defendants was a necessary condition and he supported his submission by citing Swamirao v. Bhima-bhai, AIR 1921 Bom 368 (2), Sukhdeo v. Mt. Rani Dulari, AIR 1926 Oudh 313 and Mubinulnissa v. Ali Hussain, AIR 1929 Oudh 402. In my opinion, these cases do not help the learned counsel. These cases have dealt with the situation where an owner of the property is said to have not lost his right of property because he happened not to be in possession of it for 12 years. It was said that his right under Section 28 of the Limitation Act could only be extinguished if the possession of the possessor was adverse. The facts of the cases relied on by the learned counsel for the appellants are distinguishable. To the facts of those cases adverse possession was a necessary condition. But the same cannot be said in every case. If the contention of the learned counsel is accepted, then there cannot be extinction of right to redeem even after the expiry of 60 years. This cannot be accepted to be the correct position in law.
13. Next it was argued that a mortgagee will always remain a mortgagee irrespective of the fact as to the length of his possession and he cannot prescribe higher title by adverse possession thanthat of a mortgagee. Reliance was placed on two decisions of the Supreme Court in the cases of Ganga Dhar v. Shankar Lal : 1SCR509 , and Padma Vithoba v. Mohd. Multani AIR 1963 SC 70. This contention of the learned counsel is also besides the point. Here in the present case, we have to see whether the right of the plaintiffs to redeem had come to an end or not. In view of the above discussion there can be no doubt that that right came to an end after the expiry of 11 years from, the date of the accrual of the right to redeem. There is no question of prescribing the rights of a mortgagee. In the present case on the extinction of the right of the mortgagors in view of the principles of Section 28 of the Limitation Act, the ownership right vests in the mortgagees.
14. In view of what has been saidabove, none of the two contentions raisedby the learned counsel has any force.Accordingly, this appeal fails and ishereby dismissed with costs.