H.S. Chaturvedi, J.
1. This second appeal by the plaintiff arises out of a suit for possession brought under Section 183, U. P. Tenancy Act.
2. The property in dispute was a four annas share in patti Abhairaji' of village Machura, pargana Mankapur, district Gonda.
3. The material facts which are no longer disputed are as follows:
One Ram Dutt Singh, who died in 1894, was the owner of the under-proprietary share in suit. On his death he was succeeded by his widow Shrimati Abhairaji who died on 15-12-1910, leaving behind her daughter Shrimati Gaya Dei, who admittedly became entitled to the property in suit. On 2-8-1934, Gaya Dei relinquished her rights in the property in favour of Narsingh Singh, the appellant. He happened to be the nearest male reversioner as his grandfather was the real brother of Ram Dutt Singh. It is no longer in dispute that the appellant is the owner of the aforesaid four annas share in suit,
4. During has lifetime Shrimati Abhairaji, widow of Ram, Dutt Singh, executed a mortgage with possession on 28th May, 1901, the period fixed for redemption in the usufructuary mortgage was 49 years. The mortgage was executed in favour of one Babhuti Singh, who admittedly took possession of the aforesaid share on the execution of this mortgage.
During the continuance of this mortgage, Babhuti Singh the mortgagee was dispossessed by the taluqdar of Mankapur estate who started making realizations from the tenants, of the aforesaid share. In October 1934 the plaintiff brought a number of suits for recovery of arrears of rent against the tenants, who pleaded bona fide payment of rents to the taluqdar of Mankapur with the result that all the suits, brought by the plaintiff in the year 1934 were dismissed.
5. It was in the year 1936 that the appellant commenced a suit for declaration that the Taluqdar of Mankapur had no right to realise rents from tenants. This suit was filed in the Court of the Munsif of Gonda, but the suit was dismissed on the ground that Section 42, Specific Relief Act, was a bar to the suit.
The matter ultimately went in appeal before thee erstwhile Chief Court of Avadh and the order of the learned Munsif was affirmed. The following remarks of the Bench which decided the appeal may be quoted here with advantage:
'On the face of the plaint it appears that Babhuti Singh is a mortgagee with possession and that the taluqdar is a trespasser against him and not against the representative of the mortgagor. It was, therefore, absolutely necessary for the plaintiff to implead Babhuti Singh when a question of legal necessity and validity of the mortgage would have been gone into.'
It appears that the plaintiff realised that he could not succeed in recovering possession from the taluqdar of Mankapur so long as the mortgage executed by Abhairaji was not redewned. He, therefore, brought a suit for redemption under Section 12 Agriculturists' Relief Act, in the Court of the Munsif Tarabganj at Gonda. This suit was brought against the legal representative of the mortgagee Babhuti Singh who had by that time died, The suit was decreed on 2-9-1942, and the appellant was ordered to be put in possession of the mortgaged property.
The matter was taken in appeal but the order of the learned Munsif was confirmed. Ultimately on 26-6-1946, the plaintiff obtained possession of the mortgaged property as against the legal representative of the mortgagee. As the possession of the mortgaged property was actually with the respondent, the plaintiff brought the present suit on the 5th August, 1946 under Section 183, U. P. Tenancy Act treating the taluqdar of Mankapur as a trespasser.
6. According to the plaintiff, he was the under proprietor of the property in suit and as such he was entitled to possession of the share in dispute.
7. In defence several pleas were raised on behalf of the taluqdar of Mankapur estate and it is not necessary to mention all the pleas raised at the trial of the suit. The main plea raised in defence was that the plaintiff had lost his right to the property in suit by lapse of time, as the defendant-respondent had been in adverse possession of the suit property for more than 12 years. Both the Courts below have given effect to this plea of the respondent with the result that the plaintiff's suit was dismissed.
8. This appeal raises a rather interesting question of law. It is no longer disputed that the appellant is the legal representative of the mortgagor Shrimati Abhairaji. The question is whether the appellant has lost his equity of redemption because of the fact that a trespasser had taken possession of the mortgaged property and had been in possession for about 30 years prior to the filing of this suit.
9. It has been already indicated above that on the 28th May, 1901, Abhairaji Kuar had executed a possessory mortgage of the property in suit in favour of Babhuti Singh and that Babhuti Singh the mortgagee had obtained possession of this property under the mortgage. It is also clear that under the terms of the mortgage no suit for redemption could be brought for a period of 49 years. During the continuance of the mortgage, the appellant had no right to take possession of the property in suit.
The right of the appellant to possession could accrue only after he had redeemed the mortgage created by his predecessor in favour of Babhuti Singh, and so long as that mortgage subsisted the plaintiff had no right to seek possession of the mortgaged property. In the present case, the right of the appellant to possession of the property in suit accrued only after the decree for redemption was passed in his favour. This decree was put in execution on 26-6-1946, and it was from that date that the plaintiff became entitled to possession of the property in suit.
10. On behalf of the respondent it was contended that where a trespasser dispossesses the mortgagee in possession, the trespasser acquires title by adverse possession for more than 12 years not only as against the mortgagee but as against the mortgagor also. In other words, it was contended that even an equity of redemption could be lost by lapse of time. In support of this proposition reliance was placed upon the case of Periya Aiya Ambalam v. Shunmugasundaram, ILR 38 Mad 903 : (AIR 1914 Mad 334 (2)) (FB) (A) and the case of Digamber Shridhar Dhekne v. Ramratan Raghunath, AIR 1947 Bom 471 (B).
There can be no quarrel with the general proposition of law that an equity of redemption may be lost by adverse possession. For example, in the case of a simple mortgage, the mortgagee is not entitled to possession of the mortgaged property, and if the mortgagor, who is in possession, is dispossessed by a trespasser, the possession of such a trespasser, will he adverse to the mortgagor.
There is another class of cases where the possession of mortgaged property is with the mortgagee, but, under the terms of the deed, the mortgagor realises a portion of rents and profits. A third person who interferes with the rights of the mortgagor and makes the realizations in assertion of a hostile title, will become owner of the equity of redemption if he remains in enjoyment of those rights for more than 12 years to the knowledge of the mortgagor.
There is yet a third category of cases where the mortgagor has parted with all his rights to possess the mortgaged property and the mortgagee is given full and complete possession of the mortgaged property. In such a case if a trespasser dispossesses the mortgagee and enters into possession of the mortgaged property to the knowledge of the mortgagor, such a dispossession may adversely affect the rights of the mortgagee hut not of the mortgagor.
In my opinion, such possession of a trespasser will not he adverse to the mortgagor for the simple reason that possession cannot he adverse to a person (mortgagor) who has no immediate right to possession because of the existence of the usufructuary mortgage. The real owner may have knowledge that a third person has taken possession by asserting a hostile title, but it the rightful owner has no right to present possession of the property and cannot on that account act to enforce his possession, the mere knowledge, in such circumstances, will not be enough to make the possession of the trespasser adverse to the owner.
With respect, the view taken in the aforesaid two decisions, ILR 38 Mad 903 : (AIR 1914 Mad 334 (2)) (FB) (A), AIR 1947 Bom 471 (B), is rather too wide and I find it difficult to subscribe to that view.
11. The question whether in a particular case the equity of redemption has been; lost by adverse possession will depend upon the circumstances of that case. In the present case the appellant did all that he could do to preserve his rights as the representative of the mortgagor. He first made an unsuccessful attempt to realise rents by filing suits against tenants who pleaded that they were paying rent in good faith to the taluqdar. He then brought a suit for a declaration against the taluqdar that he was under proprietor and the taluqdar had no right to collect rents.
In that suit he was faced with the difficulty that a possessory mortgage executed by his predecessor was in existence and so long as the mortgage was not redeemed he had no right to claim possession of the property in suit. It is no doubt true that the plaintiff had knowledge of the fact that the possession of the mortgaged property had been taken by the respondent.
The appellant could not institute a suit for possession of the mortgaged property during the continuance of the mortgage. The mortgagor having once put the mortgagee in possession had no right to the possession of the property himself until the mortgage was redeemed. Limitation would not run against him till redemption. Dispossession of the mortgagee obviously does not imperil or call in question any right of the mortgagor who having created the mortgage is not entitled to insist on being immediately restored to possession.
Possession of the trespasser could not be adverse possession as against the mortgagor or his representative on the principle that possession cannot be adverse to a person who has no present right of possession. In the case of Salig Ram v. Gouri Shankar Tandon : AIR1935All542 the facts were similar to the facts of the present case. The following observations made in that case apply to this case fully: 'The mortgagor's right to sue for possession accrues for the first time when after redemption he is unable to take possession of part of the mortgaged property which he finds to be in possession of a trespasser, who denies his title to it.
He becomes entitled to sue the trespasser when he redeems the property and is opposed by the trespasser. It is clear that the period of limitation for his suit is 12 years to be reckoned from the date of redemption, and the trespasser's possession would not become adverse to him till after 'redemption'. With respect, I am in complete agreement with the remark which has been just quoted.
12. For reasons stated above, I am of opinion that the plaintiff's right to claim possession of the property in suit accrued on 26-6-1946. I am (sic) of further of opinion that although the respondent had been in possession For about 30 years before the suit the possession of the respondent was adverse only against the mortgagee and not adverse against the appellant.
The Courts below were, therefore, wrong in dismissing the suit of the plaintiff. I allow the appeal, set aside the orders of the Courts below dismissing the suit and decree the suit with costs throughout.
13. Leave to appeal is granted.