Skip to content


Luchi Rai and anr. Vs. Jagarnath Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Judge
Reported inAIR1928All197; 114Ind.Cas.187
AppellantLuchi Rai and anr.
RespondentJagarnath Sahu and ors.
Cases ReferredBhola v. Ajudhia Prasad
Excerpt:
mortgage - mortgagee entering into possession as full owner after invalid foreclosure proceedings--suit for redemption after 12 years--limitation--adverse possession--bengal land redemption and foreclosure regulation (xvii of 1806). - .....two plaintiffs for the recovery of possession of certain lands which had been mortgaged under two mortgage-deeds by their predecessor-in-title. one of these mortgages was dated june 1863 and the other was dated july 1865, both documents are described as deeds of mortgage by conditional sale. both deeds are on the record and it is to be observed at once that under the provisions of these deeds the mortgagee was not entitled to possession. it was stipulated in both the deeds that the mortgagor would pay off the mortgage debts in the month of baisakh 1275, corresponding to 1868, and it was agreed that, in default of payment of the debts just mentioned, the mortgagee was to be entitled to take foreclosure proceedings and to enter into possession as full owner.3. it is admitted that in the.....
Judgment:

1. Dr. Agarwala has argued this case very ably on behalf of the plaintiffs. We think, however, the appeal fails.

2. The suit was a suit for redemption brought by two plaintiffs for the recovery of possession of certain lands which had been mortgaged under two mortgage-deeds by their predecessor-in-title. One of these mortgages was dated June 1863 and the other was dated July 1865, Both documents are described as deeds of mortgage by conditional sale. Both deeds are on the record and it is to be observed at once that under the provisions of these deeds the mortgagee was not entitled to possession. It was stipulated in both the deeds that the mortgagor would pay off the mortgage debts in the month of Baisakh 1275, corresponding to 1868, and it was agreed that, in default of payment of the debts just mentioned, the mortgagee was to be entitled to take foreclosure proceedings and to enter into possession as full owner.

3. It is admitted that in the year 1868, proceedings were taken under Regn, 17 of 1806 in order to obtain foreclosure. It has been found by both the Courts below that there were irregularities in the proceedings taken to foreclose and consequently it must now be accepted that these foreclosure proceedings were invalid for the purpose of extinguishing the mortgagor's right of redemption.

4. It seems that the mortgagee, in spite of these defective proceedings, took possession of the mortgaged property after the 19th June 1868, on which date the foreclosure rubkar was written. 'Both the Courts below have dismissed the plaintiffs, suit. The finding of the lower appellate Court is that the plaintiffs have no longer any right to redeem and this conclusion is arrived at on the ground that the mortgagee and his successors-in-interest have been in adverse proprietary possession of the land in dispute since the year 1868.

5. The contention before us is that the Judge was wrong in holding that the possession of the mortgagee and his successors was adverse. It is pleaded that when possession was obtained in the year 1868 that possession was mortgagee's possession and that up to the date on which the present suit was brought a right of redemption still subsisted.

6. A great number of cases have been cited to us bearing chiefly upon the consequences which ensue from the defects of proceedings under Regn. 17 of 1806. As we have already said, the Courts below have found that the proceedings under the regulation were defective and we take it also that these proceedings by themselves did not operate in law to extinguish the mortgagor's right of redemption.

7. The question, therefore, is whether by reason of anything which happened since these proceedings were taken under the regulation, the present plaintiffs are no longer in a position to allege that they are mortgagors and that the defendants are mortgagees. If, as found by the Court below, the possession of the defendants and their predecessor-in-title became adverse from the date of the entry in or about the year 1868, then the plaintiffs are out of Court, the reason being that after continuous adverse possession for twelve years the defendants are entitled to take up the position that they are no longer mortgagees but absolute owners.

8. We have pointed out already that under the terms of the two mortgage-deeds executed respectively in 1863 and 1865 the mortgagees were not entitled to possession of the mortgaged property as from the dates of the mortgages. It cannot, therefore, be argued in the present case that the possession of the defendants or their predecessor is to be referred to any title arising under either of the mortgage-deeds just mentioned. It is clear on all hands that the possession of the defendants can only be referred to something which took place in the year 1868, or immediately afterwards when the defective proceedings were taken in order to obtain foreclosure.

9. If that is so, it seems to us to follow that the predecessor of the present defendants, who took possession, had no right to possession at all. He had, as we have pointed out, no right of possession under the mortgage-deeds and was only entitled to get possession upon taking foreclosure proceedings strictly in accordance with the provisions of the regulation. As those proceedings have been found to be irregular, it follows that the defendants' predecessor got possession without title and must, therefore, be deemed to have been a trespasser. It cannot be doubted that, when he entered into possession, the predecessor of these defendants was entering under a claim of full proprietorship; for under the two mortgage-deeds it was provided that after foreclosure had taken place the mortgagee was to have possession as owner and zemindar.

10. It has been argued before us by Dr. Agarwala that, inasmuch as the predecessor of these defendants was a mortgagee under the two deeds just mentioned, it ought to be taken that his entry into possession in the year 1868 was as a mortgagee and that, if he remained in possession for more than 12 years after that date, he did not acquire anything more than the qualified interest of a usufructuary mortgagee. We do not think this argument can be sustained. In the first place the defendants' predecessor was not a usufructuary mortgagee under the two deeds and we cannot discover that he ever put forward any case that he was a usufructuary mortgagee and nothing more.

11. It is quite true that limited interests can be acquired by adverse possession and, as explained in U.N. Mittra's book on Limitation and Prescription, Vol. I p. 160:

The extent of the adverseness of possession depends on the extent of the claim of right, under which possession is obtained and kept. Where such claim is restricted to a limited interest in the property, the possession is adverse to that extent only.

12. In the present case there is nothing to indicate that the original mortgagee professed to take possession in the capacity of a mortgagee usufructuarily or otherwise. It is not to be doubted that having taken possession under the regulation his intention was to assert his right to have possession of the property as full owner by reason of the default of the mortgagor.' in paying off the sums due under the two deeds.

13. We cannot, therefore, hold that any prescriptive right which has been acquired by the defendants or their predecessors was the right merely to the limited interest of a mortgagee. We think the original mortgagee was prescribing for a full proprietary title.

14. We have been referred to a great many cases. In the course of the argument Dr. Sen has referred us to a case which is reported in Bhola v. Ajudhia Prasad [1882] A.W.N. 84. That case, on the facts, cannot be distinguished from the case now before us. In that the learned Judges held that the original mortgagee, not having obtained possession as a mortgagee, but under a claim of full ownership, he had acquired a full title by adverse possession for 12 years and was no longer liable to be turned out of possession on a suit for redemption. The same reasoning applies here and we hold, therefore, that the decree of the lower appellate Court is correct. The appeal fails and is dismissed with costs.


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