1. This is an appeal in a suit for possession brought by the plaintiffs-respondents, Jodha Singh and Dilla Singh. The land in suit originally belonged to one Murat Singh, who mortgaged it for Rs. 3C0 with possession on 19th May 1891 to one Ganga Ram. Ganga Ram remained in possession as mortgagee till the year 1918. but the rights of the mortgagor were the subject of various transfers which it will be necessary to specify.
2. On 12th: December 1903 Murat Singh sold his equity of redemption to the defendants-appellants, Raghubir Singh and Gajraj Singh, for a sum of Rs. 1,300. Rs. 300 of this amount was left with the vendees for payment to the mortgagee, Ganga Ram, to pay off his mortgage. One Bharat Singh instituted a pre-emption suit in respect of this sale of the equity of redemption and obtained a decree against the defendants on 25th January 1905. Under this decree the whole of the purchase-money, Rs. 1,300, was made payable to the defendants though Rs. 300 of it was really for payment to the mortgagee, Ganga Ram. Bharat Singh, the successful pre-emptor, deposited tie entire amount in Court within the time allowed by the decree and the amount was withdrawn by the defendants. As, however, the defendants were not in possession of the property Bharat Singh did not think it necessary to take out any formal execution of his decree. The contention of tie defendants is that Bharat Singh and his successions in interest have lost their entire interest in the property by not doing so.
3. In order to pay the amount of Rs. 1,500 under the pre-emption decree Bharat Singh executed a mortgage in favour of one Meharban Singh, The present plaintiffs instituted a pre-emption or pre-mortgage suit on the basis of this mortgage, obtained a decree and stepped into the shoes of Meharban Singh. This was on 6th June 1906. They then sued on the mortgage, brought the equity of redemption to sale and purchased it themselves. They have thus succeded to the rights of Bharat Singh. The mortgage suit was brought in the year 1917 but the plaintiffs did not get form d possession of the property till February 1919. In the meantime, on January 1918 , the defendants had paid off the three hundred rupees due to Ganga Ram under his mortgage and have recovered possession of the property. The plaintiffs on their purchase being completed brought the present suit for possession against them.
4. The suit was dismissed by the learned Subordinate Judge on the ground that Bharat Singh not having executed his pre-emption decree the defendants had been in adverse possession of the equity of redemption forover twelve years. The learned District Judge pointed out that there could be no adverse possession of the equity of redemption under the circumstances and that as the plaintiffs or their predecessor, Bharat Singh, could not have got possession while Ganga Ram's mortgage subsisted it was not necessary for them to go through the formality of executing the pre-emption decree. He accordingly decreed the suit. The defendants appeal to this Court and put forward the same contentions which they advanced in the Court below. They do not indeed now contend that there was any adverse possession of the equity of redemption by them against Bharat Singh. Their contention is that it was absolutely necessary for Bharat Singh to put his pre-emption decree into execution and that as he failed to do so his right in the property absolutely ceased at the conclusion of twelve years from the date of his decree.
5. The respondents rely, among other grounds, on the provisions of Order XX, Rule 14, which prescribes the form of pre-emption decree. That rule lays down that the decree shall direct that on payment into Court of the purchase price the defendants shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of the payment.
6. It is quite clear that in this case no delivery of possession could take place as the defendants themselves were not in possession. Under the rule, therefore, it must be held that when the plaintiff had complied with the terms of the decree his title was complete. The same point was considered by a learned Judge of this Court in the case of Sita Ram Pande v. Madho Pande 23 Ind. Cas. 876 : 12 A.L.J. 521. That was also a case in which no possession could be delivered the pre-emptor being himself in possession in another capacity. The argument was put forward that unless he applied for formal delivery of possession under Order XXI, Rule 36, he obtainerd no right as proprietor in virtue of his decree. That contention was, we think, rightly repelled by the Court, In this case if, after complying with the condition of the pre-emption decree, Bharat Singh had proceeded to redeem Ganga Ram's mortgage it is clear that his right to do so could not have been disputed. The reason why he did not do so almost certainly was that the portion of the sale price which was specially ear-marked for re-payment of this mortgage had been paid for by him to the defendants in the pre-emption suit.
7. The rights of the case are entirely with tie plaintiffs. The defendants having obtained the full price for the property are now seeking to retain the property as well. The very money with which they redeemed Ganga Ram's mortgage was money left with them for the purpose of redeeming that mortgage. Under these circumstances, it is reasonable to hold that from the time they redeemed the mortgage they have held possession on behalf of the plaintiffs on the analogy of Section 82 of the Indian Trusts Act. On both these grounds we affirm the decision of the Court below and dismiss the appeal with costs including in this Court fees on the higher scale.