1. This appeal is brought by the plaintiff against an appellate decree of District Judge Sher Singh varying the decree of the trial Court in regard to defendant No. 5 Jugal Kishore and thus dismissing the suit against him.
2. On the 23rd of February 1916 the plaintiff mortgaged the haveli in dispute to Balak Ram father of defendants 1 to 4 for a sum of Rs. 300/-. The mortgage was with possession and the mortgagee was to have the rents and profits and also interest. The plaintiff on the 25th November 1947 brought a suit for redemption against defendants 1 to 4 as representatives of the mortgagee and against Jugal Kishore defendant No. 5. It was alleged in the plaint in paragraph No. 5--
'Jugal Kishore is in possession on the plea that he is a transferee which the plaintiff does not accept but if there is a transfer I am not bound by it. In order to settle disputes the defendant No. 5 has been made a 'pro forma' defendant.'
3. Defendants 1 to 4 pleaded that the property had been redeemed and they had delivered possession to the plaintiff and the reply of Jugal Kishore defendant No. 5 was that he had been in adverse possession for 25 or 30 years and also that he had made improvements. He also pleaded that the plaintiff had not been in possession within twelve years. The trial Court framed the following issues:
1. Whether the plaintiff is the owner of the property in dispute?
2. Whether the mortgage in suit was redeemed and when?
3. Whether the adverse possession of the defendant No. 5 for more than twelve years has ripened into ownership?
4. Whether the plaintiff was dispossessed within twelve years from the date of the suit?
5. Whether the defendant No. 5 has made any improvements in the property in suit; if so at what costs and in case of a decree in plaintiff's favour is he entitled to recover that amount from him?
And it held that the plaintiff was the owner of the property, that the mortgage had not been redeemed, that defendant No. 5 had not proved any adverse possession and therefore the question of dispossession within twelve years did not arise and there was no evidence that any improvements had been made and as to what their cost was. It therefore decreed the plaintiff's suit.
4. Defendant Jugal Kishore went up in appeal to the District Judge who in a somewhat (sic) understandable judgment set aside the decree against defendant No. 5. The plaintiff has come up in appeal to this Court.
5. There was a preliminary issue which has not been mentioned before by the trial Court. 'Whether suit for redemption lies' and the trial Court held that it does and that defendant No. 5 was a person interested in the mortgage security.
6. As I understand the pleadings Jugal Kishore no doubt pleaded title paramount based on adverse possession but he fixed the period of his adverse possession to be 25 or 30 years before the suit and even if we take the period to be 30 years the adverse possession would start from the year 1918 which is after the mortgage and in these circumstances the appellant submits that the adverse possession would not be against the mortgagor but at the most against the mortgagee. He relies on -- 'Muhammad Husain v. Mul Chand', 27 All 395 (A), where it was held that possession of mortgaged property obtained by ouster of a mortgagee in possession was not necessarily adverse to the mortgagor also, for the reason that such possession, so far as the mortgagor is concerned, cannot become adverse until the mortgagor becomes entitled to immediate possession. In -- 'Zinda v. Mst. Roshnai', AIR 1928 Lah 250 (B), the Court held that a mortgagee in possession is bound to protect the interests of the mortgagor and to prevent any stranger getting into possession and if the mortgagee allows any person to come into possession of the property it will not affect the rights of the mortgagor to redeem and he is entitled to treat the stranger as a trespasser and the stranger's right of adverse possession will not commence unless the mortgagor has redeemed the property.
Similarly in -- 'Gitabai v. Krishna Malhari', AIR 1921 Bom 295 (C), it was held that a tenant put in possession by a mortgagee cannot prescribe against the mortgagor until the mortgage is redeemed and the mortgagor becomes entitled to immediate possession. Reference was also made to a Privy Council judgment in -- 'Mumtaz Ali Khan v. Mohan Singh', AIR 1923 PC 118 (D), but I do not think that that case is of much assistance in the determination of the point in controversy in this case. Counsel also referred to -- 'Amar Nath v. Duni', AIR 1935 Lah 315 (E), where it was held and reference was made to all the cases which I have given above that a tenant put in possession of land by a mortgagee can claim adversely against the mortgagee but not against the mortgagor until the mortgage is redeemed and mortgagor becomes entitled to possession. The possession of Jugal Kishore, therefore, if it started in 1918 cannot be adverse to the mortgagor and it cannot be said in these circumstances that he is not a person interested in the mortgage security.
7. It has been held by various High Courts that a person who claims adversely to the mortgagor and the mortgagee is not a necessary party within Order 34, Rule 1 of the Code of Civil Procedure and the Privy Council in -- 'Radha Kunwar v. Reoti Singh', AIR 1916 PC 18 (F), held that the joinder of persons who set up adverse claims to the mortgaged property in a suit for sale was irregular and it could only tend to confusion. Similarly in -- 'Mst. Shakuntla Bai v. Roshanlal', AIR 1941 Nag 133 (G), it was held that no question of title could be raised in a redemption suit and Mr. Justice Vivian Bose pointed out the dangers which such a procedure would lead one into. Reliance was next placed on -- 'Ramautar Singh v. Ramsewak Lal', AIR 1951 Pat 332 (H), where reliance was placed on --'Jajneswar Dutt v. Bhuban Mohan', 33 Cal 425 (I), and on -- 'Rameshwar Rai v. Harakh Lal', AIR 1942 Pat 226 (J), and a rule was deduced that in a mortgage suit paramount title ought not ordinarily be drawn into controversy without the assent of the parties. These are no doubt cases which do lay down that the right of a person claiming paramount title should not be tried in a suit under Order 34, Rule 1, Civil Procedure Code, as this would lead to confusion.
But Mr. Gosain relies on a passage from Mulla's Code of Civil Procedure at page 1080 where it is stated--
'On the other hand, the question is not one of jurisdiction but at most one of misjoinder, and when it is alleged that the person claiming adversely or by title paramount is a 'benamidar' of the mortgagee, or is in possession and likely to resist the claim of the successful plaintiff in the mortgage suit, it may be convenient to join him as a party. Where it is just and convenient to decide the title of a person who claims by a paramount title, he may be joined as a party.'
A Division Bench of the Allahabad High Court (Thom and Allsop JJ.) in -- 'Bisheshar Dayal v. Mt. Jafri Begam', AIR 1937 All 251 (K), said-
'Further, to hold that a mortgagee is not entitled to implead as a defendant any person who impugns his title as a mortgagee, would lead, in our opinion, to unnecessary multiplication of suits. Either before or after filing the mortgage suit he should have to bring another suit against the person claiming title as a prior transferee to the mortgaged property for a decal ration that that person's title was invalid. It would be unfortunate if he had to follow such a devious course. We see no reason in law or equity for holding that the question of the prior transferees' paramount title should not be decided in the mortgage suit.'
And in a Division Bench Judgment of the Madras High Court in -- 'Kasi Chettiar v. Ramaswami Chettiar', AIR 1937 Mad 176 (L), it was held that the question whether issues of title paramount should or should not be decided in a mortgage suit was dependent on each particular case and in the circumstances of that case it was held that it was a fit case where they should be tried. The same rule was laid down in a previous Single Bench Judgment in -- 'Veeraraghavalu v. Suryanarayana', AIR 1936 Mad 338 (M).
8. It is, therefore, not an invariable rule that whenever a paramount title is set up it should not be tried in a mortgage suit. It would depend upon the circumstances of each case. In the present case the adverse possession set up does not extend to a period before the date of the mortgage and even if defendant No. 5 is in adverse possession his possession will be adverse only to the mortgagee but that is a question which will have to be decided by the learned District Judge and I would not like to prejudice the case of the defendant in regard to that. The circumstances in my opinion are such that the paramount title, if any, must be determined in this suit and the plaintiff should not be made to litigate the same matter over again.
9. With respect I cannot agree with the findingof the learned judge that the frame of this suitis such that the pleas of defendant No. 5 cannotbe tried in this case. I would, therefore, allowthis appeal, set aside the decree of the appellateCourt and remand the case to the District Judgefor proceeding with the case in accordance withlaw. The parties are directed to appear in theCourt of the District Judge on the 5th October1953.
10. Case remanded.