1. This appeal has arisen from a suit brought by the respondent for recovery of possession of plots 63, 64, 68 and 69 and for demolition ot certain constructions made by the defendants on those plots. The plaintiffs' case was that the above mentioned plots were included in his zamindari which was in possession of a usufructuary mortgage for a considerable length of time, that foe redeemed, the mortgage in 1928 and found the defendants to be unlawful possession of portions of the aforesaid plots the latter having constructed certain buildings, such as 'sahdari, latrine, etc.,. thereon. The suit was brought on 19th. June 1931, so that there could be no question of limitation if the plaintiff's cause of action accrued when he redeemed the usufructuary mortgage. The defence was that many of the buildings in question in the case were not situate in any of the plots above-referred to, that the defendants made the constructions that might be found, to be situate in those plots, with the permission of the usufructuary mortgagee 30 years before the suit. Limitation and adverse possession were also pleaded apparently on the ground that the cause of action for the present suit arose when the constructions, were made. The plaintiff was also said to be estopped by acquiescence in not objecting to the constructions when they were made.
2. A Commissioner was appointed by the trial Court. According to his report, a well and the northern portion of the 'sahdari' were outside the plots. claimed by the plaintiff, arid the controversy was limited to the southern portion of the 'sahdari,' 5 'karis' of land and part of a 'chabutra' and a 'chappar,' etc., which, according to the Commissioner's report, were situate in. one or other of the plots already referred to. Both the Courts below found that the plaintiff was not estopped by any acquiescence, as the defendants, constructed the buildings in dispute, with their eyes open and in full knowledge and disregard of the plaintiff's right. No question of estoppel by acquiescence was argued in second appeal. Both the Courts below found that the defendants failed to establish that they had made the constructions with, the permission of the mortgagee. The lower appellate Court expressed the opinion that the defendants made the constructions without obtaining the mortgagee's permission, but the mortgagee did not care to institute a suit for ejectment.
3. As regards limitation and adverse possession, both Courts held that adverse possession against the mortgagee is not adverse possession against the mortgagor, who can institute a suit for possession against a trespasser within 12 years after redemption. This view was controverted by the learned advocate for the appellant in second appeal. It was argued on the authority of Periya Aiya Ambalam v. Shunmugasundaram 1914 Mad. 334, that adverse possession against the mortgagee might also be adverse against the mortgagor if a trespasser takes possession in denial of the mortgagor's right. Certain observations occurring in that case, are strongly relied upon but in my opinion they should not be divorced from the facts of the case which was one in which the mortgagor had. sued for a declaration of his right during the subsistence of a usufructuary mortgage. The defendants in that case had trespassed into a house which had been mortgaged by the plaintiffs for a term of 20 years. The plaintiffs sued for a declaration of their right, reckoning limitation from a certain date. It was alleged that the plaintiffs' cause of action had arisen on a prior date. The questions referred to the Full Bench were: (1) 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? (2) Whether a fresh cause of action for a suit for declaration of title arises from each distinct denial of the plaintiff's title so long as, the title itself is not lost, or whether there cannot arise any new causes of of action based on new denials of title after the first denial.
4. The answer given by the Full Bench was:
Possession may be adverse, but whether it is so or not in any case will depend upon the facts of each case.
5. The question whether the possession of a trespasser who dispossesses a mortgagor in possession is adverse against a simple mortgagee does not arise in the case, and we express no opinion with regard to it:
As the cause of action in this case arose only in 1908, the second question, whether a fresh cause of action arises from each distinct denial of the plaintiff's title, also does not arise in the case, and we express no opinion with regard to it.
6. In the body of the judgment the Full Bench stated with reference to certain cases that:
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 as adverse title to the knowledge of the mortgagor.
7. It seems to me that the question whether the right of the mortgagor is lost by the adverse possession of a trespasser for more than 12 years during the continuance of the usufructuary-mortgage depends upon the terms of Section 28, and Article 144, Schedule 1, Limitation Act. Section 28 provides that at the determination of the period limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished. Under Article 144 limitation begins to run when possession becomes adverse to the plaintiff. If the mortgagor is not entitled to any kind of possession or enjoyment of the mortgaged; property during the continuance of the usufructuary mortgage, the mortgagor is not entitled to sue a trespasser for possession. It is the mortgagee alone who can do so and if the mortgagee does not care to bring such suit for more than 12 years, Section 28, Limitation Act, operates to extinguish, the mortgagee's title to the property in possession of a trespasser. 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 the 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. Cases in which the mortgagor is entitled to some sort of enjoyment of the mortgaged property in spite of the usufructuary mortgage stand on a different footing. Again, different considerations apply where a, question of limitation arises in a suit for declaration. Failure to sue for declaration within time does not involve the extinguishment of the plaintiff's title, as Section 28 is applicable only to cases in which the plaintiff is entitled to sue for possession and fails to do so within the period of limitation prescribed for his suit. In my opinion the lower Courts have rightly he that the plaintiff's suit is not barred, by limitation. The appeal fails, and is dismissed with costs. Leave to appeal, under the Letters Patent is granted.