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Musammat Durga Devi and ors. Vs. Girwar Singh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1923All11; 70Ind.Cas.958
AppellantMusammat Durga Devi and ors.
RespondentGirwar Singh and ors.
Cases ReferredIn Kunwar Sen v. Darbari Lal
Excerpt:
adverse possession - ouster of mortgagee--possession, whether adverse against mortgagor. - .....revenue papers as if they were occupancy tenants of the disputed land, and set up their title by adverse possession, which the courts below repelled, holding that the right of the plaintiffs to obtain possession accrued from the time of redemption and no adverse right could, therefore, have been acquired by those defendants. the defendants do not explain how they came into possession of the mortgaged property after it had been mortgaged by the predecessor-in-title of the plaintiffs. if they got into possession in collusion with the mortgagees, the plaintiffs cannot be made to suffer in consequence, because, as pointed out by their lordships of the privy council in khiarajmal v. daim 32 c. 296 : 32 i.a. 23 : 2 a.l.j. 71 : i.c.l.j. 584 : 8 sar. p.c.j. 734 : 9 c.w.n. 201 : 7 bom. l.r. i.....
Judgment:

Kanhaiya Lal, J.

1. This appeal arises out of a suit for redemption of a mortgage effected by Mahipat Singh and Gopal Singh, the predecessors of the plaintiffs, in favour of Sewa Ram, the predecessor of defendants Nos. 1-3, and Pahalwan Singh on the 2nd March 1870. The mortgage was usufructuary. The mortgagees got possession over the mortgaged plots, which consisted of an occupancy holding belonging to the mortgagors. The rights of Pahalwan Singh subsequently devolved on the present plaintiffs. The suit, therefore related to the remaining half share of the mortgaged property which was in the possession of the successor of Sewa Ram. The name of Sewa Ram and his successor continued in the, revenue papers up to 1320 Fasli. In 1918, the defendants, who had somehow obtained possession of the mortgaged plot, got their names entered in the revenue papers as if they were occupancy tenants of the disputed land, and set up their title by adverse possession, which the Courts below repelled, holding that the right of the plaintiffs to obtain possession accrued from the time of redemption and no adverse right could, therefore, have been acquired by those defendants. The defendants do not explain how they came into possession of the mortgaged property after it had been mortgaged by the predecessor-in-title of the Plaintiffs. If they got into possession in collusion with the mortgagees, the plaintiffs cannot be made to suffer in consequence, because, as pointed out by their lordships of the Privy Council in Khiarajmal v. Daim 32 c. 296 : 32 I.A. 23 : 2 A.L.J. 71 : I.C.L.J. 584 : 8 Sar. P.C.J. 734 : 9 C.W.N. 201 : 7 Bom. L.R. I (P.C.). no such possession, short of the statutory period of sixty years, would be a bar or defence to a suit for redemption, if this parties otherwise entitled to redeem. If they obtain unlawful possession by ousting the mortgagees at any time within the last 12 years or before, still their possession cannot be treated as adverse to the proprietor so as to defeat his lawful title, because the right of the plaintiffs to get possession could only arise on redemption and not earlier. In Kunwar Sen v. Darbari Lal 34 Ind. Cas. 1711 : 38 A. 411. it was held that a person could not acquire a title by adverse possession to land which was the subject of a usufructuary mortgage and, therefore, in possession of the mortgagees, merely because he had managed to get his name recorded in the village papers for a series of years in respect of the mortgaged property. The occupancy tenancy of the original mortgagors or their heirs has not become extinct. By virtue of the mortgage they must be deemed to have held constructive possession of the land mortgaged. No question of jurisdiction arises, because the suit, so far as the defendants-appellants are concerned, is virtually between rival claimants to the occupancy holding. The landlord is not a party to the suit. The plaintiffs were no parties to the order passed by the Revenue Court entering the names of the defendants-appellants a occupancy tenants of the land mortgaged while the mortgage was still unredeemed. The appeal is, therefore, dismissed with costs, including fees in this Court on the higher scale.


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