1. This is a second appeal by the defendant, Chanar Singh, son of Jai Ram. The respondent plaintiff is also Chanar Singh, son of Jit Singh. The second appeal is against the decision of the District Judge in appeal in favour of the plaintiff who had failed in the Court of first instance. The suit was for possession. On the first hearing I remanded an issue as follows:
Has the defendant Chanar Singh acquired the title of a mortgagee by adverse possession for over 12 years o the land in suit as a mortgagee
2. Further evidence was admitted and the lower appellate Court has come to a further finding which is to the effect that the defendant has not acquired the title of a mortgagee by adverse possession. The case has now been reargued as to whether this finding is-correct in point of law on the facts found by the learned District Judge. These facts are as follows:
In 1871 there was litigation between one Jai Ram father of Ghanar Singh, the defendant in this case (now deceased) and two men named Khim Singh and Keshar Singh. This litigation 'was settled by the execution of sulehnama or deed of compromise. On 9th October 1871, Jai Earn had sued these two men and the sulehnama shows that they admitted that they owed him Rs. 24 in addition to Rs. 42 due on a mortgage. They agreed that Jai Bam should remain in possession of the land mortgaged until they paid off this debt It is not stated in the sulehnama when this mortgage was executed (and no mortgage deed is forthcoming). The sulehnama did not show definitely what land was mortgaged; no specific plots are referred to; it merely showed that Jai Ram was in possession as a mortgagee of eight plots belonging to Khim Singh and Keshar Singh.
Khim Singh and Keshar Singh are said to have sold their rights in this land (as well as in other land) to one Lalmani, father of Amarnath. There is no evidence as to the date of sale. Neither Lalmani nor his father Amarnath ever obtained possession and in 1927, they sold this land willi other land to Chanar Singh, the plaintiff in the case.
Chanar Singh instituted partition proceedings and the land in suit was allotted to him in these proceedings in 1928. Jai Ram's son Ghanar Singh, was in possession of the land and refused to vacate it and the other Chanar (son of Jit Singh) accordingly sued for possession.
3. And also:
There appears to be no doubt that the appellant's family has been in possession since 1871 on the basis of the sulehnama referred to. No mortgage deed is forthcoming and it cannot therefore be said whether specific plots were mortgaged; all that can be said is that Khim Singh and Keshar Singh were not entitled to mortgage specific plots.
4. It is to be noted that the learned District Judge finds that the mortgage-deed was not produced and the sulehnama did not specifically show that the eight plots in question were mortgaged. He however finds that the sulehnama did show that Jai Ram was in possession as a mortgagee of eight plots belonging to Khin Singh and Keshar Singh. It appears to me that the finding of fact is sufficient to show that the mortgage was of the eight plots and the further question as to whether the mortgage-deed did or did not men-lion these specific numbers is not important. A point which appears to have influenced the District Judge is that the mortgage would be invalid. I asked learned Counsel for the plaintiff to show any provision of law which may make the mortgage invalid and he did not j refer to any provision of law. The general rule of law in the province is that a co-sharer in possession of a. particular plot as his khudkasht or as his sir has a right to mortgage the, plot. It is therefore for the plaintiff-respondent to show that a different rule prevails in Kumaun. All that the District Judge has referred to is a statement by Mr. Stowell in his Manual of Land Tenures of the Kumaun Division that the possession of specific ploty by a co-sharer would not entitle the co-sharer to remain in possession oil those plots after partition. Mr. Stowell does not apparently refer to the case where a co-sharer has made a mortgage of a specific plot.
5. In any case I do not consider that in the present case the partition affects the case because the plaintiff who has been allotted the plots on partition is in my opinion bound by the transactions of his predecessors-in-interest. If in the partition the, plots in question, had been allotted to a different co-sharer it is conceivable that different rights might arise although that has not been shown to me. Learned Counsel for the respondent argued that in some way the rights of other co-sharers would be concerned with the question of the acquisition of mortgagee rights by adverse possession. I do not consider that this is the case. The co-sharers in possession of the pots in 1871, Khem Singh and Keshar Singh, chose to transfer a portion of the right to possession which they had in those plots for a limited time by a mortgage and a sulehnama. They and they alone were concerned with this question whether adverse possession established the rights of a mortgagee against them in Jai Ram. The learned District Judge has also referred to the fact that it has not been shown by evidence that attempts were made by Lalmani and Amarnath to obtain possession of the land. Lalmani and his son Amarnath were successors of Khem Singh and Keshar Singh, but it is not shown at what time Khim Singh and Keshar Singh sold their rights in the land to Amarnath. The learned District judge finds that the defendant family has been in possession since 1871 on the basis of the sulehnama referred to. I understand that the District Judge means that they were in possession of the land in suit. I do not consider that it is necessary that any further evidence should be produced in order to establish the rights of the mortgagee by adverse possession in favour of the defendant's family. I would refer to the ruling of their Lordships of the Privy Council reported in Secy. of State v. Debendra Lal Khan 1934 P.C. 23, where it is laid down:
While possession to be adverse must be adequate in continuity, in publicity and in extent it is not necessary that it should be shown to have been brought to the knowledge of the owner. It is sufficient that the possession was overt and without any attempt at concealment so that the person against whom time is running ought if he exercises due vigilance, to be aware of what is happening.
6. Now, if we assume in favour of the plaintiff that Lalmani obtained the sale-deed from Khim Singh and Keshar Singh within the period of 12 years it is clear that Lalmani must have been well aware of the possession of Jai Ram. I consider that on the facts found by the learned District Judge, the conclusion is that the defendant has acquired the title of a mortgagee by adverse possession for over 12 years as mortgagee. Accordingly I allow this appeal and I restore the judgment of the Court of first instance dismissing the suit of the plaintiff with costs throughout. Permission is granted for a Letters Patent appeal.