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Musammat Ram Piari and ors. Vs. BudhsaIn and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All389; 61Ind.Cas.546
AppellantMusammat Ram Piari and ors.
RespondentBudhsaIn and ors.
Cases ReferredIn Babu Ram v. Banke Bihari Lal
Excerpt:
.....redemption by purchaser--mortgagee continuing in possession--simple mortgage, subsequent by mortgagee--decree for sale--auction purchaser sale by, of his rights--suit to redeem original mortgage--adverse possession--taciting--limitation. - - a mortgagee, it is true, is estopped from denying the title of a mortgagor or from setting up avdverse possession against him, but where the property mortgaged has pissed from the mortgagee to a third party, who has obtained rights therein for valuable consideration in good faith and in full belief that he was purchasing the transferor's proprietary interest and the transferor represented that he held that proprietary interest, it cannot be said that such a transfer is a transfer of the mortgagee interest, so as to render article 148 of the..........1901 the heirs of khubi ram got a decree for sale on foot of those deeds and in execution of that decree the property in question was sold by auction on the 1st of august 1902 and purchased by the decree-holder themselves. the auction purchasers subsequently sold their rights in the said property to the present defendants by two sale-deeds, one of which was executed on the 29th of january 1904 and the other on the 22od of may 19053. the present suit was filed by the plaintiffs on the 26th of march 1915 for the redemption of the mortgage made by hansa in 1881. the court of first, instance dame to the conclusion that the claim was not barred by limitation, that a second suit for redemption was maintainable, and that the plaintiffs were entitled to a decree for redemption on payment of rs,.....
Judgment:

1. These are two Letters Patent Appeals arising out of a suit for redemption. It appears that Hansa was the owner of some land situated in Shahgunj in the Agra City, whereon stood a kutcha house and chaupal. In 1S61 he mortgaged with possession the paid land with the kutcha house and chaupal standing thereon to Hargobind in lien of Rs. 20. On the 30th of June 1863, Hansa sold his equity of redemption in that property to Jugal Kiehore, the predecessor in interest of the present plaintiffs. Jugal Kishore filed a suit for redemption and obtained a decree on the 6th of October 1863, conditional on his paying Rs. 20 to the mortgagee. No time was fixed by the decree for the payment of that money, and no money was in fact paid to Hurgobind in pursuance it. Whether that was due to some private arrangement with Hargobinod or some other cause is not clear.

2. Hargobind subsequently pulled down the kutcha kotha and chaupal standing thereon and built a shop and a balikhana at a cost, of Rs. 5,500. He rmained in possesion of that property till 1989, when ha mortgaged the Bhop and bilakhnni, which the land upon which they stood, to one Khubi Ram, describe himself as the absolute owner of that property, This mortgage was limited. Later on, he executed two duels of further charge in favour of Khubi Ram. On the 25th of May 1901 the heirs of Khubi Ram got a decree for sale on foot of those deeds and in execution of that decree the property in question was sold by auction on the 1st of August 1902 and purchased by the decree-holder themselves. The auction purchasers subsequently sold their rights in the said property to the present defendants by two sale-deeds, one of which was executed on the 29th of January 1904 and the other on the 22od of May 1905

3. The present suit was filed by the plaintiffs on the 26th of March 1915 for the redemption of the mortgage made by Hansa in 1881. The Court of first, instance dame to the conclusion that the claim was not barred by limitation, that a second suit for redemption was maintainable, and that the plaintiffs were entitled to a decree for redemption on payment of Rs, 20 on account of the principal sum secured by the mortgage. One of the pleas urged by the defendants was that their predecessor, Har Gibind, had built shops and other apartments on the land in dispute at a considerable cost and that the plaintiffs were not entitled to get back the property without paying the costs of the constructions made by him. The Court of first instance found that one of the houses originally existing on the disputed land had fallen down and that the mortgagee was justified in re-building it. It, therefore, allowed Rs. 100 on account of the cost of its re-construction, In regard to the remaining buildings, standing on the land, its finding was that those buildings had been constructed in order to improve the house and that the plaintiffs were not liable for the costs of those improvements. The decree passed by that Court, consequently, was that the plaintiffs should get possession of the property, including the improvements made by the mortgage, on payment of Rs. 120 to the defendants. That decree was upheld by the Court of first appeal, On second appeal to this Court, which tame up before a Single Judge, it was field that, although the predecessors in title of the defendants, namely, the heirs of Khubi Ram, had been in adverse possession of the disputed property since the 1st of August 1902, and had been sneered by the defendants, who had been in adverse possession from the date of their purchase, the defendants were not entitled to took on the period of their adverse possession to the period of the adverse possession held by the heirs of Khubh Ram. On that ground alone the learned Judge dismissed the appeal, except in so far that he allowed the defendants to remove the materials of the constructions made by their predecessor in title subject to their undertaking to restore the land to the condition in which it was, with the buildings as they stood on the date of the mortgage.

4. A considerable argument has been addressed to us in regard to the applicability of Article 134 of the Indian Limitation Act (No. IX of 1904). That point appears to have been pressed also in the Courts below, and seems to have very much obscured the main issue involved in the ease, namely, whether, irrespective of Article 134, the defendants had perfected their adverse title by possession for more than twelve years prior to the suit. Article 143 is intended to protect the interest of the mortgagor against the mortgagee in possession or the person who holds the interest of the mortgagee, including his heirs or assigns as such. Article 134 is designed to protect the interest of the persons in possession who have obtained by transfer from the mortgagee larger rights than those which the mortgagee was competent to transfer, for valuable consideration, and have remained in unqualified enjoyment of the same for more than twelve years from the date of the transfer. As pointed out in Husaini Khanam v. Husain Khan 29 A. 471 at P. 480 : A.W.N. (1907) 133 : 4 A.L.J. 375 and Mulla Vittil Sesti Kutti v. Kunhi Pathumma 43 Ind. Cas. 31 : 40 M. 1040 : 33 M.L.J. 620 : (1917) M.W.N. 609 : 22 M.L.T. 236 : 6 L.W. 464 (F.B.), the transfer referred to in Article 134 is a transfer with possession or followed by possession as a necessary incident or ingredient of it. If a transfer is not according by the delivery of possession, Article 144 may coma into operation, when possession is obtained afterwards and held adversely for more than twelve years. We have, therefore, to consider whether that Article is applicable in view of the findings here arrived at.

5. In the present case what Hargobind mortgaged with Ehubi Ram was the proprietary interest which he believed and professed or pretended to have held in the disputed property. In pursuance of that mortgage and the farther mortgages which had been made thereafter, a degree was obtained by the mortgagee and the property was sold in execution of that decree. The property mortgaged was not the mortgagee interest of Hargobind but the so sailed proprietary interest which he claimed to have held in that property. The auction-purchasers, similarly, had not purchaaed the mortgagee interest of Hargobind but had purchased what was described as his proprietary interest. They remained in possession of that proprietary interest from the date of their purchase and afterwards they sold their proprietary interest to the present defendants who have since been in possession of the same. A mortgagee, it is true, is estopped from denying the title of a mortgagor or from setting up avdverse possession against him, but where the property mortgaged has pissed from the mortgagee to a third party, who has obtained rights therein for valuable consideration in good faith and in full belief that he was purchasing the transferor's proprietary interest and the transferor represented that he held that proprietary interest, it cannot be said that such a transfer is a transfer of the mortgagee interest, so as to render Article 148 of the Indian Limitation Act (No. IX of 1908) applicable. In Ammu v. Ramakishna Sastri 2 M. 226 : 1 Ind. Dec. (N.S.) 429 it was held that Article 148 applied only to suits for redemption and to such suits as might be instituted against mortgagees or persons claiming under them, except purchasers for value, but it did not apply to suits against strangers, nor to suits which were not suits for redemption. In Chinto v. Janki 18 B. 51 : 9 Ind. Dec. (N.S.) 542 it was similarly held that where land was mortgaged with possession to a certain person and that person was ousted from possession by another who remained in possession of the said land and dealt with it as his own for 40 years, a suit for redemption brought by the mortgagor or His legal heirs would not fall under Article 148, but would be governed by Article 144 of the Limitation Act, and would fail if the person in possession succeeded in proving that his possession was adverse to the mortgagor for more than 12 years prior to the suit. Article 148 cannot, therefore, apply to the present suit; and if that Article does not apply, the only other possible Article that can apply is Article 144. Article 134 is excluded by the fact that the vendors of the defendants had not purchased from the mortgagee. They bad acquired their rights by virtue of an involuntary sale, which, according to the decisions in Ahamed Kutti v. Raman Nambudri 25 M. 99 : 11 M.L.J. 323, Bhagvean Sahai v. Bhagwan Din 9 A. 97 : A.W.N. (1886) 303 : 5 Ind. Dec. (N.S.) 496 and Shennath Singh v. Mahipal Singh 2 A.L.J. 234 : A.W.N. (1905) 56, is excluded from its operation. But even an action-purchaser may, unless he is a purchaser of the mortgagee interest as such, remain in possession of the property purchased for more than twelve years, and may acquire adverse rights by virtue of his possession. The defendants are, therefore, entitled to claim that, if their possession has been adverse for more than 12 years, they cannot be ousted from the property, The only ground upon which the learned Judge of this Court found adversely against the present defendants was that the possession of the previous holders, namely, the action-purchasers, could not be took on to the possession of those who bad derived their title from them. But it is well settled that a person who is in possession of land without title has, while he continues in possession and before the statutory period has elapsed, a transmissible and inheritable interest in the property, but that interest is liable at any moment to be defeated by the entry of the rightful owner ; and if such person is succeeded in possession by one, claiming through him, who holds till the expiration of the statutory period, such a successor has then as good a right to the possession as if he himself had occupied for the whole period.' (Halsbury's Laws of England Volume 19, page 157). In Babu Ram v. Banke Bihari Lal 3 A.L.J. 424 : A.W.N. (1906) 184 it was, accordingly, held that if the period of possession of a trespasser and his predeoessor-in title who was also a trespasser extended over a period of 12 years, he acquired an absolute title to the property of which he had been thus in possession. In fact, the learned Counsel for the plaintiffs concedes that such tasking is permissible in the case of a person who has derived his title from a holder who had been in similar possession of the disputed property. That being so, the ground on which the learned Judge proceeded cannot be sustained.

6. We allow the appeal of the defendants, set aside the decree of the Single Judge and of the Courts below, and dismiss the plaintiffs suit with costs through out, including in this Court fees on the higher scale. We dismiss the appeal, filed by the plaintiffs, Letters Patent Appeal No. 131 of 1919 with costs including in this Court fees on the higher scale.


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