G.D. Khosla, J.
1. This reference to the Full Bench by a Division Bench of the erstwhile Pepsu High Court has arisen in the following manner. One Mal Singh died leaving 150 bighas of agricultural land. He had inherited this land from his father Gurmukh Singh who had obtained it by means of a gift from his father-in-law, Samund Singh. Some of this area was under mortgage and a small portion was unencumbered. An area, 131 bighas 8 biswas, was mortgaged with Ram Narain Singh who is the respondent before us. Another plot of 5 bighas was mortgaged in favour of somebody else and the rest was unencumbered. Mal Singh left no male issue and the State began to take steps for the escheat of the property.
Thereupon the collaterals of the donor, Samund Singh, intervened. They are the plaintiffs appellants before us. Their case was that the property after the ending of Mal Singh's line had reverted to them because they represented the line of the donor. Gujjar Singh who was a first cousin of Mal Singh and therefore his heir raised no objection to the claim made by Samund Singh's collaterals. The escheat proceedings were stopped and the question of entering a mutation of this land was taken up by the revenue authorities. Smt. Khemi, the daughter of Mal Singh, now raised an objection, but the mutation was entered in favour of the appellants.
They obtained possession of the unencumbered land and redeemed the 5 bighas of land which was mortgaged to persons other than those who are parties to the present litigation. Therefore the position then was that the appellants who are the collaterals of Samund Singh were in actual possession of about 19 bighas of land and they were entered as owners of this area. They were also entered as owners of 131 bighas 9 biswas, but their rights consisted only of the equity of redemption in this land. The actual possession of the land was with the defendants because the original mortgage was a mortgage with possession.
This was the state of affairs in 1983 Bk. The plaintiffs now took steps to recover possession of the remaining land also, i.e., the land which is now in dispute. They brought a suit against the present defendants claiming possession of the land on the ground that Mal Singh, the last male-holder had no right to effect a mortgage. They claimed that the land was ancestral qua them. Both these issues were decided against them. It was held that Mal Singh was full owner of the property and the property was not ancestral qua the plaintiffs. Their suit was accordingly dismissed. This decision was upheld by the High Court of Pepsu.
2. Having been foiled in their effort to oust the defendants, the plaintiffs had recourse to a subterfuge. They made an ostensible transfer of their rights in favour of one Basakha Singh who, on the basis of the entries in the revenue records, applied to the Collector for redemption. This application, however, failed. The application was made in 1999 Bk. Soon afterwards Basakha Singh and the plaintiffs brought a suit for redemption. This was the third attempt to oust the defendants.
The plaint in the suit was rejected for nonpayment of court-fee. In the meantime Mal Singh's cousin Gujjar Singh sold his rights to the defendants for a sum of Rs. 7,000/- in the year 2000Bk. The result of this sale was that whatever rights Gujjar Singh possessed were transferred to the defendants-mortgagees. Gujjar Singh being the reversioner of Mal Singh claimed to have the equity of redemption and therefore by this sale the defendants became complete owners of the property mortgaged to them.
3. The plaintiffs now made a fourth attempt to oust the defendants and brought a suit for redemption. It is out of this suit that the present appeal has arisen. This suit was repelled by the defendants who claimed that Gujjar Singh who held the equity of redemption after the death of Mal Singh had sold his rights to them and they (the defendants) had therefore become full owners. They also raised the plea of res judicata contending that this matter had been considered and disposed of in the previous suit brought by the plaintiffs in 1984 Bk.
The suit was dismissed, but when the matter came up in appeal to the High Court the plaintiffs sought to raise the plea of adverse possession. The substance of their contention is that ever since 1983 Bk. when the mutation of Mal Singh's land was effected in their favour they have, to the knowledge of Gujjar Singh and his successors-in-interest, been in possession of this and and since their possession has lasted for a period of more than 12 years, it has now matured into ownership, whatever be the decision in the previous cases.
4. Objection was at once taken on behalf of the respondent that this plea could not be raised at this stage and the proper time to raise it was at the trial. It was further contended that a bare equity of redemption could not be prescribed. Gurnam Singh and Mehar Singh JJ. who heard the appeal in the first instance felt that this was a case which should be considered by a larger Bench. They accordingly framed the following two questions which were argued before us -
1. Whether the plea of adverse possession not having been raised specifically in the pleadings or in issue can be raised in appeal on the evidence already on the record?
2. Whether the title to equity of redemption can be acquired by adverse possession when the land is in actual possession of a mortgagee?
5. The plea of adverse possession is not always a legal plea. Indeed, it is always based on facts which must be asserted and proved. A person who claims adverse possession must show on what date he came into possession, what was the nature of his possession, whether the factum of his possession was known to the legal claimants and how long his possession continued. He must also show whether his possession was open and undisturbed. These are all questions of fact and unless they are asserted and proved, a plea of adverse possession cannot be inferred from them.
Therefore in normal cases an appellate Court will not allow the plea of adverse possession to be raised before it. There are no doubt some cases in which the plea will be allowed because in some form the allegation upon which it can be raised was made at the time and the facts necessary to prove the plea were brought before the Court and proved. Such a case is the one of which the decision is reported in Municipal Board, Etawah v. Mt. Ham Sri, AIR 1931 All 670. In that case the plaintiffs based their suit on title extending over a period of thirty years.
'The plaintiffs' case was that plaintiff 1 was the owner of the land and she had on that plot four small shops fetching a rent of about Rs. 80/-a month. Plaintiff 2 is her lessee. The shops were burnt down in June 1928 and the land was laid vacant. The plaintiffs made an application to the Municipal Board for permission to build again on the land, but this permission was refused on 27th August, 1926 on the ground that the Municipal Board was the owner of the land and not the plaintiffs'.
The learned Judges of the Allahabad High Court held that a plea of adverse possession extending over a period of thirty years could be read into this claim and therefore although it was not specifically raised in the plaint it could be raised at a later stage. In other words, what they held was that the plea of adverse possession was included in the plea of title. In coming to this conclusion the learned Judges no doubt took notice of the fact that the plaintiffs had clearly stated that actual physical possession of the property in dispute was with them.
6. A case of another type in which the plea of adverse possession was not allowed to be raised is Krishna Chum Baisack v. Protab Chunder Surma, ILR 7 Cal 560. In that case no plea of adverse possession for a period of twelve years was made in the plaint, but the plea was raised in the trial Court itself. The District Judge, however, took the view that the plaintiffs ought not be allowed to succeed on the plea of adverse possession because it had not been set out with sufficient distinctness in the plaint. With this view the learned Judges of the Calcutta High Court agreed.
They based their decision on the ground that all the facts necessary for proving this plea had not been alleged before the Court. In that case the plaintiffs had not been in continued possession for a period of twelve years and they sought to tack on the previous possession of another. Therefore it is clear that in disallowing the plea of adverse possession to be raised before them the learned Judges were actuated by the fact that fresh material would have to be brought before the Court in the form of allegations and counter-allegations before the plea of adverse possession could be held to be proved. They remanded that case for fresh decision on another issue.
7. In Ram Singh v. Deputy Commissioner of Bara Banki, ILR 17 Cal 444 (PC), the plea of adverse possession was raised for the first time in appeal before the Privy Council. Their Lordships held that since there was no allegation of adverse possession in the plaint and no issue raised as to it before the Court below they could not entertainthe plea.
8. Lachhmi Sewak Sahu v. Ram Rup Sahu, AIR 1944 PC 24, is another case in which the same principle was laid down. Also See Somasundaram Chetty v. Vadivelu Pillai, ILR 31 Mad 531.
9. The learned counsel for the respondent has contended that had the plea of adverse possession been raised in the plaint the defendant would have been able to repel it, and one of the pleas which he could have raised is the plea of ignorance because he did not know that Gujjar Singh had remained silent when the plaintiffs obtained a mutation in their favour. It seems to me that this plea, if raised, would certainly have deserved consideration even though the defendant is nothing more than the successor-in-interest of Gujjar Singh. The basis of the plaintiffs' suit in my view in the present case was not continued possession over a long period but their title as holders of the equity of redemption.
In the circumstances, it seems to me somewhat difficult to entertain the plea of adverse possession at the appellate stage. The general practice of Courts is not to entertain a plea of this type at a late stage. In some cases the plea was repelled even when it was raised at the trial stage because it was not specifically mentioned in the plaint of in the written statement as the case happened to be. It is only in extremely rare cases that the plea will be entertained at the appellate stage, and I am not at all sure that the matter before us is one of those cases.
The plea is clearly an afterthought and the plaintiffs have made three previous efforts to oust the defendants, adopting a different course each time. On the fourth occasion, too, they did not rely upon adverse possession, and raised the point only in appeal. I am therefore inclined to the view that on the facts of the present case the plea of adverse possession should not be allowed to be raised at this stage. I would, therefore, answer the first question in the negative.
10. I now come to the second question, namely whether equity of redemption is a right capable of prescription. The law relating to adverse possession has its roots in the reluctance of lawyers to disturb an existing state of things whenever to do so would injure a person in de facto possession, in order to benefit another who though possessing a legal claim to the property has been so careless or indifferent that he has not chosen to assert his right although he knew that he had been deprived of it. The law will not, however, help a wrongdoer if he has obtained possession of another's property in a clandestine manner and has concealed the knowledge of his possession from the person who is the rightful owner.
Also the law will protect the rightful owner where he has remained ignorant of the trespass upon his rights or where he has exercised whatever vigilance he could in the circumstances. Possession may be corporeal as well as incorporeal, and from this it follows that adverse possession can also be corporeal or incorporeal. The question for our decision in the present case is whether the equity of redemption which is an incorporeal right can be prescribed by adverse possession. The nature of possession has been defined thus by Salmond in his Jurisprudence in Section 108-
'Possession, whether corporeal or incorporeal, exists only when the animus possidendi has succeeded in establishing a continuing practice in conformity to itself.'
The author says again -
'In the case of corporeal possession the corpuspossessions consists ... * *innothing more than the continuing exclusion of alieninterference, coupled with ability to use the thingoneself at will * * *. . In the case of incorporeal possession, on the contrary, since thereis no such claim of exclusion, actual continuous useand enjoyment is essential, as being the only possible mode of exercise.'
In a footnote on the next page the author quotes from a book by Baudry -- Lancantinerie -
'Possession is nothing else than the exercise or enjoyment, whether by ourselves or through the agency of another, of a real right which we have or claim to have over a thing.'
Possession therefore means the enjoyment of whatever right is possible in the circumstances in relation to that right. The owner is said to be in possession of it when he can exclude everyone else from entering upon it, when he can go upon it whenever he likes and use it in whatever manner is permissible by law. If he mortgages the land with possession to somebody else, the mortgagee is in actual physical possession. The owner is only left with the equity of redemption. The only manner in which he can exercise this right is to redeem the property or to transfer the equity of redemption. The sum total of his right as the holder of the equity of redemption is his possession in the land.
11. The question now arises how is the rightful owner's possession disturbed. Where the possession is corporeal the matter is quite simple, Possession is disturbed when a stranger or a trespasser takes corporeal possession by entering upon it and asserting that he has a right to it. In the case of incorporeal right, however, the matter is not so simple. The mortgagor cannot enter upon actual possession of the land whenever he wants to because he has parted with his possession to the mortgagee. He can redeem the land in accordance with the terms of the mortgage. If somebody else to his knowledge exercises this right, then it may be said that his rights have been interfered with by someone else, but if he continues undisturbed in the possession of this right, it cannot be said that a trespasser has come and taken adverse possession of his rights.
12. Where a stranger asserts that he is the owner to the knowledge of the mortgagor this assertion is not by itself sufficient to disturb the right of the mortgagor because mere assertion has never been held to amount to adverse possession. I can conceive of cases where a stranger may enter into actual physical possession of mortgaged property and yet his possession may not be deemed to be adverse by the mortgagor, because the mortgagor may think that it is the mortgagee who has transferred possession to the stranger and his equity of redemption has remained unaffected by the transaction.
The adverse possession would in that case be to the detriment of the mortgagee but not of the mortgagor. Generally speaking, it seems to me that where an owner is not deprived of any rights which he exercises or can exercise, there is no case of adverse possession. A person will he said to be in adverse possession if he does something which the owner would have done and does not do, or if he does something which adversely affects the rights of the owner and he knows about it. Where, however, the person claiming adverse possession has merely made an assertion or got his name entered in the revenue records without doing anything to the detriment of the owner he cannot claim to have ousted the rightful owner.
In the present case Gujjar Singh was the rightful owner of the land after Mal Singh's death. When mutation proceedings began he raised no objection to the land being mutated in the plaintiffs' names. The plaintiffs could mot obtain actual possession of the portion mortgageed to the defendants and so in respect of it Gujjar Singh could not do anything nor could the plaintiffs. In 1984 Bk. the plaintiffs tried to obtain possession of the land but failed. There was therefore no disturbance of Gujjar Singh's rights.
In 1399 Bk. Bisakha Singh, the nominee of the plaintiffs, failed to redeem the land and in 2000 Bk. the plaintiffs themselves failed a third time. All that happened during these years was that the 'plaintiffs' names remained in the revenue records as owners of the equity of redemption. They did not do anything which would have affected adversely the rights of Gujjar Singh. They were unable to deal with the land or obtain possession of it although they tried on several occasions. Therefore there was no overt act committed by them in relation to this land which would give them justification to say that they were in adverse possession of the land. Mere entry in the revenue records has never been held to amount to adverse possession.
13. In the case of a simple mortgage, obtaining possession would undoubtedly amount to adverse possession, but I am extremely doubtful if in the case of a mortgage with possession the equity of redemption is ever capable of prescription by lapse of time for actual possession of the land is not with the mortgagor. Adverse possession in my view must be adverse and it must be possession. There can be no possession of equity of redemption in the case of mortgage with possession and it is difficult to understand how a stranger can establish adverse possession over it.
14. In Mst. Durga Devi v. Girwar Singh, 70 Ind Cas 958 : (AIR 1923 All 11(2)), a stranger in collusion with the mortgagee took possession of some property. It was held that this did not amount to adverse possession.
15. In Tarubai v. Venkatrao, ILR 27 Bom 43, it was pointed out that under Roman Law possession was not lost in land until the possessor had notice of his physical power to deal with it having been destroyed. To constitute adverse possession there must be some adverse act. The Judges who decided this case quoted from a previous Full Bench decision of their Court in Bhavrao v. Rukhmin, ILR 23 Bom 137 -- 'By adverse possession I understand to be meant possession by a person holding the land, on his own behalf, or some person other than the true owner, the true owner having the right to immediate possession.'
The learned Judges pointed out that if the true owner has no right to immediate possession not adverse possession can begin against him. In the case of a mortgage with possession the mortgagor is not entitled to immediate possession and therefore the mere assertion of a right in equity of redemption by a stranger will not affect his rights and will not constitute possession adverse to him.
16. An argument raised on behalf of the plaintiffs is that after the death of Mall Singh, they did whatever they could not only to assert their title to the land but to obtain possession of it.
They did actually obtain corporeal possession of a small area of unencumbered land. They further redeemed 5 bighas of land which was mortgaged to a third party and with regard to the land in dispute they got their names entered in the revenue records. The argument therefore amounts to this. The land left by Mall Singh was a single entity.
Part of it was capable of immediate possession and part had to be redeemed. The plaintiffs took immediate possession of the unencumbered portion and redeemed a further portion. The plaintiffs' claim is not based on title. It is based on adverse possession and the person claiming adverse possession cannot say 'I have one portion in my actual possession and the remainder therefore must be deemed to be in my possession also'. A claim based on adverse possession can only extend to that portion of the property claimed over which there has been actual physical possession.
This claim cannot be extended by analogy. The principle applicable was clearly set out in a Madras case reported as Chathu v. Aku, ILR 7 Mad 26. In that case the equity of redemption in a certain estate on the death of the mortgagor vested in two branches of the family. The rents and profits of the land paid by the mortgagee were enjoyed exclusively by the representative of one branch for 15 years. This representative claimed to have become owner of the equity of redemption by adverse possession. Dealing with his claim the learned Judges observed -
'Now, what is the title he claims? It is a title to the property. To show that the tide of the first three defendants has determined and that he has held possession of an adverse character for more than twelve years, he points to the receipt of rents from the mortgagee from 1864.
'But he has not had possession of the property for more than twelve years. His exclusive receipt of rents is evidence of an exclusive right residing in him to redeem the property. The right to redeem is a right of action, and on the evidence there would be perhaps a foundation for holding that plaintiff had for twelve years hostilely claimed an exclusive right to redeem. But, notwithstanding this, the right of the first three defendants to sue for possession of the property would not he affected until plaintiff had had possession of the property itself for upwards of twelve years. For the possession of the property was all this time with the mortgagee, and as against the mortgagee defendants would have sixty years. 'The payment of the rents and profits to plaintiff alone could have no more effect as against the first three defendants than if the rents and profits had not been paid at all but withheld by the mortgagee. In the latter case, plaintiff and defendants, though they might be barred in course of time as to their right to the recovery of the rents, would still retain the right to redeem for sixty years from the date of the mortgage.'
17. I have taken the liberty to give a somewhat extensive quotation from this judgment because the rule laid down by the Madras Judges applies to the case before us in every respect. Here too we have the case of a person getting himself entered as holder of equity of redemption. Even if it is held that this was something more than a mere declaration, all that can be said is that he was entitled to redeem the property, it does not make him the owner. We find, however, that when he did try to redeem the property he failed.
18. I would therefore answer the second question also in the negative.
19. Therefore my conclusion is that the plea of adverse possession cannot be allowed to be raised at this stage in the circumstances of this case and in any event the equity of redemption is not capable of adverse possession because the plaintiffs never exercised any proprietary right over the land nor is there any evidence of any overt act of ownership in respect of the property. The appeal must therefore fail and should be dismissed.
Gurnam Singh, J.
20. I agree.
Tek Chand, J.
21. I entirely agree both with the conclusions and the reasoning of my learned brother Khosla J., on both questions referred to the Full Bench. In view of the importance of the matters raised, I desire to state my reasons for agreeing with the conclusions arrived at by my learned brother.
22. The facts, leading to this reference to the. Full Bench, are, that one Mal Singh of village Sherpur, the last male holder, died issueless on 6-3-1979 Bk. Mal Singh had inherited the land in dispute measuring 131 bighas and 9 biswas along with some other land totalling about 151 bighas, from his father Gurmukh Singh, to whom, his father-in-law Samund Singh had given the land by way of gift. On 9-8-1971 Bk. Mal Singh mortgaged 122 bighas and 6 biswas with Gurumukh Singh and Bagga Singh for Rs. 6,000/- as per registered deed of mortgage dated 9-8-1971 Bk. Later on, some more land was added and the total land thus mortgaged with the same mortgagees was 131 bighas and 9 biswas and the total mortgage amount was Rs. 6,416/-.
23. On Mal Singh's death, escheat proceedings were started. The plaintiffs, who are the fourth degree collaterals of Samund Singh, the donor, preferred their claim in the escheat proceedings. Shrimati Khemi, as the daughter of Mal Singh, also submitted her claim. Gujar Singh, who was the first cousin of Mal Singh, did not prefer any claim. The revenue officers, on finding, that there were in existence, heirs of Mal Singh deceased dropped the escheat proceedings. On 21-2-1983 Bk. a mutation of the entire estate of Mal Singh was effected in favour of the plaintiffs and they have been continuously shown, since then, as mortgagors in the revenue records of the land under mortgage.
Shrimati Khemi was unsuccessful in her appeal against the order of mutation and Gujar Singh, who was aware of these proceedings, did not intervene and took no steps for the rectification of the entries in the revenue records in favour of the plaintiffs. After the mutation had been effected in their favour, the plaintiffs took possession of the unencumbered land left by Mal Singh. There was also an area of 5 bighas and 11 biswas under mortgage with some other persons which was redeemed by the plaintiffs on 16-12-19S3 Bk. and taken possession of. As the plaintiffs were out of possession, they instituted a suit for the recovery of possession of the remaining land, i.e., 131 bighas and 9 biswas, which is now in dispute.
In that suit, the plaintiffs claimed, that the land was ancestral qua them, and the last maleholder Mal Singh, had no right to effect a mortgage. It was held that Mal Singh was a full owner of the property, which was not ancestral qua the plaintiffs, whose suit was dismissed. This decision was upheld by the Pepsu High Court. The plaintiffs then tried to achieve their object by means of a transfer of their rights, i. e., the equity of redemption, in favour of one Basakha Singh, and he, as an assignee, applied to the Collector on 14-11-2000 BK. for its redemption. This application was dismissed.
24. On 1-12-2000 BK. Gujar Singh who was the first cousin of Mal Singh, sold the equity of redemption for Rs. 7,000/- by a registered deed in favour of the mortgagees. The mortgagee-respondents thus perfected their title of full ownership by purchasing equity of redemption from Gujar Singh who was the only male heir to Mal Singh deceased.
25. Another attempt was made when the plaintiffs and Basakha Singh instituted a suit for redemption under Section 12 of the Redemption of Mortgages Act on 13-7-2001 BK.
26. The present suit evidences the final attempt on the part of the plaintiffs to obtain possession of the land under mortgage. On 31-2-2004 BK. the present suit was instituted in the Court of the Subordinate Judge First Class, Barnala, for redemption of 131 bighas and 9 biswas of agricultural land, on payment of Rs. 6,416/-. In this suit the plaintiffs asserted their rights as reversioners of Samund Singh, the donor. They contend, that on the extinction of the line of Mal Singh, the land reverted to the donor Samund Singh and they claim themselves to be his nearest heirs.
The defendant admitted the mortgage by Mal Singh in favour of Gurmukh Singh and Bagga Singh the predecessors-in-interest by a registered deed dated 9-8-1971: BK. of 122 bighas and 6 biswas and later on of additional land totalling 131 bighas and 9 biswas for Rs. 6,416/-. The defendant pleaded that the plaintiffs had no locus standi to institute the present suit as they were neither the heirs of Mal Singh nor could the land revert to them on the death of Mal Singh.
The defendant maintained that Gujar Singh, as the first cousin of Mal Singh, was the rightful heir, who succeeded to Mal Singh, and after the sale of equity of redemption by him on 1-12-2000 BK. all the rights of full owner vested in the defendant. It was also pleaded that in view of the dismissal of the plaintiffs' previous suit right up to the High Court, the present suit did not lie. On the pleadings of the parties the following issues were framed:
(1) Whether the plaintiffs are the heirs of Mal Singh and are entitled to bring the suit for redemption ?
(2) Whether the defendant has purchased the land in dispute vide sale deed, dated 1-12-2000 BK. from one Gujar Singh, an heir of Mal Singh ?
(3) Whether there is a defect of non-joinder of parties in the suit ?
(4) Whether the plaintiffs have transferred their right of redumption to Basakha Singh.
The trial Court by its judgment, dated 28-2-1951 A. D. gave the decision on first issue, against theplaintiffs holding that the land did not revert to the line of the donor.
The trial Court was also of the view that the plaintiffs could not challenge the alienation effected by Mal Singh and that they had no locus standi to bring the suit which was also barred by the rule of res judicata. The second issue was found in favour of the defendant and it was held that the sale of the equity of redemption effected by Gujar Singh in favour of the defendant Ram Narain Singh was proved. In view of the decision on issues Nos. 1 and 2 it was considered unnecessary to decide issues Nos. 3 and 4. The plaintiffs' suit was dismissed. The plaintiffs presented the present appeal (R.F. A. No. 9 of 1951) to the Pepsu High Court.
27. In the High Court the plaintiffs appellants for the first time took up the plea of adverse possession. There, it was conceded that the claim of the plaintiffs resting on other grounds was without foundation. On behalf of the defendant-respondent it was argued, that as the plea of adverse possession had never been specifically raised in the pleadings, it could not be allowed to be urged at the appellate stage, especially when neither any issue had been framed nor any decision given by the trial Court on this question. The plaintiffs' contention was that the plea of adverse possession need not be specifically pleaded and it should be deemed to have been included in the plea of title.
Another question that was agitated before the Division Bench of Pepsu High Court was, whether the equity of redemption could be prescribed and adversely possessed. The contention of the defendant-respondent was, that the plaintiffs at no stage had entered into physical possession of the land, and that the mere entries of mutation in the revenue papers were not sufficient, for commencement of adverse possession. It was pleaded that the mortgagors' right to redeem was incapable of being adversely possessed, where the actual physical possession throughout was with the mortgagees. In view of conflict of judicial opinion noticed by the Division Bench the following two questions were referred to the Full Bench :
(1) Whether a plea of adverse possession not having been raised specifically in the pleading or in issue can be raised in appeal on the evidence already on the record ?
(2) Whether a title to equity of redemption can be acquired by adverse possession when the land is in actual possession of a mortgagee
28. On the first question it is important to remember that the basic rule of law of pleadings is, that a party can only succeed according to what he has alleged and proved, otherwise, on the principle of secundum allegata et probata party is not allowed to succeed, where he has not set up the case which he wants to substantiate. In the words of Lord Westbury in Ishan Chander Singh v. Sama Churn 11 Moo Ind App 7 (PC):
'................. the determination in a caseshould be founded upon the case either to be found in the pleadings as involved in or consistent with the case thereby made .... .... . .It will introduce the'greatest amount of uncertainty into judicial proceedings, if final determination of causes is to be founded upon inferences, at variance with the case that the plaintiff has pleaded ....... and is nottaken to prove ........they desire to have therule observed that the state of fact and the equities and ground of relief originally alleged and pleaded by the plaintiff, shall not be departed from'. This rule that pleadings and proof must correspond, rests upon the principle that no party should be prejudiced by being taken by surprise by varying the case as originally set up. In the words of Mahajan J, in Trojan & Co. Ltd. v. Nagappa Chettier 1953 S.C.R. 789 at p. 806: (AIR 1953 SC 235 at p. 240) 'It is well settled that decision of a case cannot be based on grounds outside the pleadings of the parties and it is a case pleaded that has to be found.'
29. It is true that it is not every variance between the pleadings and the proof which offends the rule of 'secundum allegata et probata'. Where there is no element of surprise or where a new claim set up is consistent with the allegations made in the plaint, the plaintiff will not be refused relief as in such a case the defendant is not being prejudiced. Moreover this rule of pleadings applies to questions of fact and not to pure questions of law, which did not depend for their decision upon substantiation of the facts alleged.
30. In my opinion, the correct test as to when a plea of adverse possession, when not taken in theplaint, can be raised later on in appeal, was laid down b Calcutta High Court in Nepen Bala Debi v. Siri Kanta Banerji, 8 Ind Cas 41 (Cal), in the following words :
'Where no case of acquisition of title by adverse possession is made in the plaint, nor is the question raised directly or indirectly in any of the issues the plaintiff ought not to be allowed to succeed upon such a case. On the other hand, as pointed out by this court in the case of Lilabati Misrain v. Bishun Chobey (6 Cal LJ 621), when the question reduces itself to one of law, upon facts admitted or proved beyond controversy, it is only competent to the Court, but expedient in the interest of justice to entertain the plea of adverse possession, if such a case ariseson the facts stated in the plaint and the defendant is not taken by surprise. The true test, therefore, to be applied to determine whether the plea of title byadverse possession should be allowed to be urged though not explicitly raised in the plaint, is, how farthe defendant is likely to be prejudiced if the pointis permitted to be taken.'
Ordinarily, the question of adverse possession is one of tact, resting upon proof of numerous circumstances which go to establish the several elements, indicating adverse character of the possession. Incertain cases it may be A question of law or a mixed question of law and facts as where the decision rests upon inferences to be drawn from facts which are admitted or established.
31. The determination of adverse possessiondepends upon sifting of facts and circumstances, indicative of adverse possession, and then, upon testing of the evidence in the light of the law applicable. The Appellate Court may allow the setting up of the plea of adverse possession for the first time an appeal provided the facts on the record are sufficient to support it, and the opposite party is not taken by surprise, but otherwise, a declaration of tide by adverse possession will not be given where the claim is not set out distinctly in the pleadings or in issues.
In Shiro Kumari Debi v. Govind Shaw Tanti, Markby J. observed at page 422 in ILR 2 Cal. 418, that where the question of 12 years possession had not been properly raised either in the plaint or in the issues, and the defendant had no proper notice that such a point was going to be raised, it was notopen to the lower appellate Court to declare in plaintiff's favour on the strength of the title which had not been alleged. Plaintiff's suit was dismissed.
32. The Judicial Committee of the Privy Councildeclined to entertain the plea of adverse possession which had not been set up in the pleadings andsaid:
'Possession may be adverse or not according to the circumstances; and the question of adverse possession or non-adverse possession is mainly a question of fact. But there has been no allegation of adverse possession in the plaint and no issue raised as to it before the Court below. Their Lordships think that it is impossible now to suggest a case of adverse possession.' See ILR 17 Cal. 444 (448).
33. In AIR 1944 P. C. 24, Sir George Rankin stated: The question whether Bhairon's possession wasadverse to the plaintiff is still a question of fact, and it would be manifestly unjust if it were held, in the absence of any issue, any cross-examination, any enquiry upon the point and 'without giving the plaintiff an opportunity to meet the allegation, that possession of Bhairon to the appellant had been adverse after 12 years'.
In support of the above proposition reference may also be made to the following cases, Siddik Mohd Shah v. Mst. Saran AIR 1930 P. C. 57 (1) and HemChand v. Pearey Lal AIR 1942 P. C. 64.
34. In ILR 7 Cal. 560 the plaintiff had alleged the specific title on the basis of Miras Patta which he failed to establish. He then endeavoured to succeedupon the title by 12 years adverse possession, whichwas not raised in the Court of first instance, with sufficient clarity, so as to enable the defendant to understand, that he claimed to succeed as well by 12 years adverse possession, as by a specific title alleged. In these circumstances, the plaintiff was not allowed to succeed on the basis of adverse possession.
35. Mr. Dalip Chand Gupta, learned counsel for the appellants, has placed reliance upon observations made in a decision of Allahabad High Court in AIR 1931 All, 670. In that case, the plaintiffs had asked for a declaration, that they were the owners of the land in suit. The High Court after going into evidence led by the parties came to the conclusion that the plaintiffs had substantiated their contention that the land in suit was their private property. The High Court then observed:
'......... and in any case the plaintiff hadby completing adverse possession, extending over 30 years, has completed that title in herself as against Municipal Board. The plea of adverse 'possession' need not be specifically pleaded as it is included in the plea of title'.
Apart from the fact, that the above observations were in the nature of an obiter dictum, on the facts of that case, there was sufficient evidence on the record, from which proof of adverse possession extending over thirty years could be adduced. On the facts of this case that authority can throw no light in answering the first question under reference to this court.
36. A Privy Council authority, relied upon by the learned counsel for the appellants, also does not lend support to his contention, in view of the particular facts of that case. What was held by Privy Council in L. Karam Chand v. Finn Mian Mir Ahmad Aziz AIR 1938 P. C. 121, was that:
'The object of pleading is to give fair notice to each party of what his opponent's case is and all the documents being from the beginning before the Court, there was no question of the defendants being prejudiced by the form of the plaint'.
On the basis of the oral and documentary evidence in that case, their Lordships agreed with the conclusion come to by the trial Court. This authority, not even remotely, helps the appellants.
37.. In this case the plaintiffs in their plaint claimed their title on the allegations that they were the heirs of Mal Singh, being collaterals of his maternal grandfather, Samund Singh, and they were entered in the revenue records as mortgagors. There was no averment either express or implied suggesting assertion of title by adverse possession.
38. In order to succeed on the plea of adverse possession, several facts have to be stated and substantiated by the party basing his title on this plea. Burden of proving all the elements of adverse possession is on the party setting up such a title. The plaintiffs in this case, in order to succeed, had to allege and establish, that their possession was actual, adverse, exclusive, peaceful, continuous, unbroken open, notorious, visible, distinct, unequivocal and hostile under a colour of title, or, claim of right. He must further prove the date of commencement, the territorial extent and the length of his adverse possession.
After title by adverse possession is prima facie substantiated, the defendant is given opportunity to refute the plaintiff's contention, by showing that some or all the elements which go to support the plea of adverse possession are missing. A defendant may lead evidence to show that the statutory period had not lapsed and the possession was still inchoate, or, that it was not hostile, or, that it was interrupted or, that it was based on fraud or was permissive or clandestine. The defendant could even defeat the plaintiff's contention, by showing, that the possession was not open, hostile, visible, public or notorious or, that he had no actual knowledge. After the parties have led evidence in support of their respective contentions, the Court, then determines the weight and sufficiency of the proof adduced.
39. An adverse possession, in order to secure title, does not merely consist of mental conclusion or in proving of intention. It must have its basis, in existence of physical facts, as well as openly evidencing, the purpose to hold dominion over the property, in hostility to the title of the real owner, has such will be tantamount to giving of notice to the real owner with respect to such a purpose.
The party alleging the title by adverse possession, which from its very nature, is commenced in wrong, and is maintained in right, must lead evidence entitling deduction, that the occupant held possession for himself, against all the world, and it was exclusive in the sense, that he either successfully turned out or shut out other claimants. It must be shown that the real owner was either evicted or excluded. The intention that is to be manifested is to hold the thing for himself (Animus sibi habendi) coupled with the intention to exclude every one else. (Animus alteri non-habendi).
40. An attribute of adverse possession is that it begins with disseisin or ouster of the owner. It is an act of displacement of the owner by the adverseclaimant. Disseisin or ouster of the real owner is the foundation of the title by adverse possession. It remains an inchoate title, or a growing' title till theexpiration of 12 years of its continued, open and hostile assertion and enjoyment.
Before title by adverse possession is perfected, all presumptions and intendments are in favour of the real owner. There are a very large number of hurdles before the adverse claimant, which he has successfully to clear. It is only after these obstacles are overcome, that the claimant of title, by adverse possession, receives the protection of law after the expiration of twelve years. Till then the law withholds its support from the wrong-doer.
41. In this case if plea of adverse possession had been taken in the plaint, and if that plea had been traversed by the defendant and then 'proper issues framed, a heavy burden would have lain on the plaintiff to lead evidence in support of his hostile claim and a corresponding opportunity of rebuttal would have been given by law to the defendant. In this case it is inconceivable that the question of adverse possession can become the subject matter of adjudication on this record in the absence of proper plea, issue or proof.
42. The above discussion leads me to the only conclusion, and that is, that, unless the plea of adverse possession has been specifically raised in the pleadings, put in issue, and then cogent and convincing evidence led on a multitude of points, and an opportunity to refute the case made out by the plaintiff, availed of by the defendant, the plea of adverse possession cannot be allowed to be flung as a surprise, on an unsuspecting defendant, for the first time in appeal.
43. I find myself in respectful agreement with Khosla J. and in my opinion the first question that has been referred to the Full Bench should be answered in the negative.
44. This brings me to the second question.
45. It is an uncontested fact in this case, that actual and physical possession had throughout been with the mortgagees, ever since the execution of the deed of mortgage' by Mal Singh in the year 1971 Bk. No known or visible right of equity of redemption was exercised by the plaintiffs. It is true that during the course of several years past, the plaintiffs have been asserting their claim to the equity of redemption, on the alleged ground of being successors of the mortgagor Mal Singh deceased, but no litigation launched by them ever bore fruit, their contentions were rejected by the Courts, as often as they were put forward.
It is true, that in the year 1983 Bk. the mutation was entered in their favour and they were, and still continue to be, shown, in the revenue records as mortgagors. It is also true that Gujar Singh the nearest heir of Mal Singh kept aloof and did not press his claim when the proceedings were taken for escheat of this land. The plaintiffs and Mst. Khemi alone asserted their respective claims and it was at their instance that authorities dropped the proceedings of escheat.
But Gujar Singh took no interest and did not participate in those proceedings. On the other hand, the plaintiffs have been making assertions and invoking, though unsuccessfully, the aid of the law Courts. Under these circumstances, can it be said, that the plaintiffs either by unsuccessful assertion of their rights or, by figuring as mortgagors in the revenue records for a period extending over 12 years, should be deemed to have perfected their title to the equity of redemption by plaintiffs? In this case actual possession was throughout with the mortgagees, and in the circumstances of this case, it cannot be said, that the plaintiffs successfully interferes with the possession of the mortgagees.
46. Adverse possession implies dispossession, or in other words, displacement of dominion of the real owner by the adverse claimant. Record of this case does not suggest any act whereby Gujar Singh, the only rightful heir of Mill Singh, the real owner, can be deemed to have been dispossessed of his right to equity of redemption, by the plaintiffs. It admits of no doubt, that repeated assertions without success cannot amount to taking of possession by the wrongdoer, and to the displacement of the title holder. Discontinuance of the right of Gujar Singh cannot be presumed from any act of the plaintiffs.
In this case the mortgagors are not shown to have exercised any right of use and enjoyment of the land. Mortgagors' equity of redemption was not capable of use and enjoyment, as in this case, the actual physical possession of the land remained throughout with the mortgagees. Here it cannot be postulated that the equity of redemption could be adversely possessed by the plaintiffs. When actual physical possession under the mortgage remains with the mortgagees adverse possession can neither commence nor conclude. In such cases it is impossible to determine either the terminus a quo or the terminus ad quem.
47. In the words of Bramwell L. I. in Leigh v. Jack. (1879.1 5 Ex D. 264 at p. 273 :
'to defeat the title by displacement of the former owner, acts must be done which are inconsistent with his enjoyment of the soil for the purpose for which he intended to use it'.
In this case, the nature of the equity of redemption, was such as not to let the mortgagors have enjoyment of possession while the mortgage lasted.
48. In the particular circumstances, there could conceivably be no act of the adverse claimant which could tantamount to an act of dispossession or ouster. There are no rights of Gujar Singh which can be said to have been encroached upon by the plaintiffs. The very essence of adverse possession is, that it must operate to oust the other claimant of his possession or to prevent his entry on his land. For adverse possession to arise, there must be seizure by one and dispossession or exclusion of the other.
49. In this case there is no indication that the real owner was diseased by the plaintiff and continuously kept out of possession for the legal term. What was the right of Gujjar Singh in this case, which was being imperiled by the plaintiff, and which he should have resisted, and on the failure of which he would he deemed to have submitted to it Where was the actual entry of one and the expulsion of the other; where was the divestment of the latter and usurpation by the former? In short, can it be said on the facts and in the circumstances of this case, that there was the ouster of the real owner followed by the actual possession of the adverse claimant?
During the continuance of the mortgage, Gujjar Singh, the nearest heir of the mortgagor, could neither use nor otherwise enjoy the land under mortgage. Even if, there had been a dispossession of the mortgagees by a stranger, that would not have been treated as equivalent to an adverse possession as against Gujjar Singh who during the pendency of the mortgage, was merely entitled to a bare equity of redemption, Gujjar Singh in view of the terms of this mort-gage, can well rely upon the maxim 'Contra non valentem agere nulla currit praescriptio -- prescription does not run against a party who is unable to act.
50. In the particular facts of this case there conceivably were no tangible rights of the mortgagor, which could be overtly invaded by a trespasser.
51. In Chinto v. Janki ILR 18 Bom. 51, the question was, whether, when a mortgage is effected, and the mortgagee is put in possession, a stranger to the mortgage can by 12 years' possession obtain a title against mortgagor. Telang J. was of the opinion, that the question was one not capable of answer in the abstract without reference to the circumstances of each case. In that case he held, that there could be a possession adverse to the interest of a mortgagee, which nevertheless, was not adverse to the interest of the mortgagor.
Where the mortgagor puts the mortgagee in possession, he has ordinarily, no right to possession himself until the mortgagee is paid off, and the mere fact of the mortgagee's letting the property go out of his possession, cannot give the mortgagor such a right before payment. In such circumstances it is open to the real mortgagor to say, that the trespasser's possession against the mortgagee was not adverse to him, as he had no right to possession during the currency of the mortgage.
52. If a trespasser merely claims to hold the right adversely to the real owner, that is not sufficient because possession means something more than a mere claim to hold. Previous unsuccessful litigation in this case may be evidence of the fact, that the stranger asserted a claim, but assertion cannot be treated to be at par with possession. What matters is not averment of rights, but their exercise.
53. In ILR 27 Bom. 43, at p. 51 (FB) it was observed:
'By adverse possession I understand to be meant possession by a person holding the land, on his own behalf, of some person other than the true owner the true owner having the right to immediate possession.'
Obviously the real owner in this case did not have the right to 'immediate possession'.
54. Ordinarily, in cases of adverse possession, there is forthcoming, proof of knowledge of ouster on the part of the real owner, though it is not absolutely essential in every case. Knowledge will also be presumed where the act of taking possession is open and notorious. The possession of the rightful owner through his agent may be lost where the agent has been dispossessed though this fact is not within the knowledge of the principal. The principle applicable to such a case was:
'Quod servus vel procurator vel colonus tenent, dominus videtur possidere et ideo his dejectis ipse dejiei de possessione videtur etiam si ignoreteos dejeclos per quos possidebat.'
It means, that the owner is deemed to be dispossessed when his land is held by his slave, agent or a tenant, and therefore, when they are ejected the owner is deemed to be dispossessed even if he is ignorant of the eviction of those, through whom he is dispossessed.
55. Conversely, the owner in lawful possession cannot be deemed to be ejected from possession, until he has notice of the invasion. This principle is enunciated by the following illustration -
'Nam saltus hibernos et aestivos, quirum possessio retinetur animo, licet nequ servum neque ibi habeamus quamvis saltus proposito possidendi fuerit alius ingressus, tamdiu priorem possidcra dictum est, quamdiu possession em ab alio occupatam ignoraret Dig 41, 2, 44, 2, 45, 46 (When a winter or summer pasture, retained in possession without the instrumentality of slaves or tenants, solely, by the mental relation, is invaded by a stranger who has the intention of taking possession of it, the prior possessor is not regarded as ejected from possession until he has notice of the invasion)'.
56. In this case the plaintiffs under no circumstances could dispossess the mortgagor Gujjar Singh as he was never himself in possession and the actual-possession of the mortgagee remained inviolate, never having been encroached upon.
57. According to the view of Sir Shadi Lal C.J. and Mr. Justice Le Rossignol (Munna Lal v. Hamid All 79 Ind Cas 39 : (AIR 1925 Lah 53)) the crucial question in such cases is when was a person dispossessed, i.e., deprived of physical possession of the land Mere paper dispossession does not amount to dispossession and whether Article 142 or 144 of the Limitation Act be applicable, the terminus a quo is the actual physical dispossession. In a case like this, where the possession has been that of the mortgagees throughout, no act of the mortgagor, short of release of the equity of redemption, can be a bar or defence, to a suit for redemption, if otherwise the mortgagor is entitled to redeem.
The reason in such cases is, that the mortgagor, who is not entitled to any kind of possession or enjoyment of the mortgaged property during the continuance of the usufructuary mortgage, is not entitled to sue a trespasser in possession. It is the mortgagee alone who can do so, and if the mortgagee does not agree to bring suit for more than 12 years, it is the mortgagee's title alone to the property, which is extinguished. The mortgagor's right to sue for possession accrues, when he proceeds to redeem the property, and is opposed by the trespasser, and the period of 12 years is to be reckoned from the date of redemption.
Similarly in the case of a simple mortgage, where the possession is with the mortgagor, an adverse possession against him, is not per se adverse against the mortgagee (Khairajmal v. Diam, ILR 32 Cal. 298, at p. 312 (P. C.), Ihtishan Ali v. Jamna Prasad, 27 Cal. W. N. 8 : (AIR 1922 PC 56), Shiamal v. Mohammad Ali 153 Ind Cas 73 : (AIR 1953 All 174), Salig Ram v. Gauri Shankar, AIR 1935 All. 542, Priya Sakhi Debi v. Manbodh Bibi, ILR 44 Cal 425: (AIR 1918 Cal 933)).
58. It is true as held in R. Jagatjit Singh v. Partab Bahadur Singh, AIR 1942 PC 47 (49) that although, adverse possession against a mortgagee is generally ineffectual against the mortgagor, especially when, it begins at a time when the mortgagee is in possession, but when a trespasser takes possession of the mortgaged property and asserts a title 'which is hostile not only to the mortgagee but which also assails the title of the mortgagor, after the lapse of the period of 12 years, the title of the trespasser becomes indefeasible not only against the mortgagee in possession but also against the mortgagor.
This authority is to be interpreted in the background of its particular facts, as in that case, the trespasser, who took possession of the land in 1891, had changed its character from agricultural land to religious property and had constructed a dharamsala upon it. By constructing the dharamsala, the trespasser was deemed, not only to have denied the title of the mortgagee, but also, that of the mortgagor, in other words, he was held to be asserting a hostile tide to both the mortgagor and the mortgagee. It is well established, that an adverse possession against an existing title must be actual and cannot be constructive.
59. In the case before us, the plaintiff could not dispossess the mortgagor as he himself was never in possession, and actual possession of the mortgagees remained inviolate not' having been encroached upon. Batty J. in ILR 27 Bom. 43 at p. 64 said:
'But this bar to equitable relief on the ground of laches and non-claim could not apply where there was neither knowledge of the assertion of an adverse claim to the equity, nor any act done by another which it was necessary for the claimant to do to preserve his title, and which if not done by him must have been done by and for the benefit of an adverse claimant unless the equity itself were altogether lost. The adverse possession of the equity was therefore due not to the bare claim as mortgagor, but to the exercise of rights and the doing of acts which amounted to a 'public usurpation of the character of the mortgagor,' a usurpation of which other persons claiming that character could not, if they professed to retain it, have remained ignorant. That was acquiescence with knowledge.'
60. In the language of Sanderson C. J. in ILR 44 Cal. 425 at p. 433; (AIR 1918 Cal 933 at p. 935)-
'In my judgment, the term 'adverse possession' implies that the person against whom adverse possession is exercised, is a person who is entitled to demand possession at the moment adverse possession begins.'
'The mortgage in this case being a simple mortgage, the mortgagee was not entitled to demand possession of me property at the time the defendant No. 3 went into possession in 1892, and indeed the plaintiff has never yet become so entitled.'
61. To the same effect is the view set out in Madras case reported in, ILR 7 Mad 26, from which there is a quotation in the judgment of my brother Khosla J. and also in Kanhoo Lal v. Mt. Manki Bibi, 6 Cal. W. N. 601.
62. In a case like the present, where possession is with mortgagee, and all that the mortgagor can do is to wait till he is able to redeem the mortgage, it cannot be said, that his right to the equity of redemption is capable of being prescribed. In order to set up title by acquisitive prescription, the property must be prescriptible. Equity of redemption in the case of usufructuary mortgage is suscentible of ownership but not of adverse possession. There are cases where, for purposes of adverse possession, property is not prescriptible. For example, property, which has been taken possession of either by violence (vi), or in a clandestine manner (clam), or with tile permission of the adversary (precario ah adversario), is not susceptible of prescription, though capable of being possessed.
63. The next argument of Shri Dalip Chand Gupta, on behalf of the plaintiff is, that the mutation entry in the revenue records showing the plaintiffs to he the mortgagors, should be deemed as proof of his client's adverse possession. The mere fact that the plaintiffs name is entered in the revenue register as a mortgagor is no proof of his possession, actual or constructive. An entry of names in the revenue records has never been treated as a starting point of adverse possession, (see Shah Nawaz v. Sheikh Ahmad, ILR 1 Lah. 549 at p. 552: (AIR 1920 Lah 300 (2) at p. 301), 153 Ind Cas 73 : (AIR 1935 All. 174), Chandrashekhar Singh v. Jagjiwan Bakhsh Singh, 115 Ind Cas 279 :(AIR 1929 Oudh 215.)
64. It is next contended that, the plaintiffs had obtained actual possession of 5 bighas of land, which was mortgaged with some other person, and that they had also taken possession of some unencumbered land, left by Mal Singh. Prom the possession of these lands Shri Dalip Chand argued that adverse possession should also be presumed over the land in suit. This contention is obviously without merit for plaintiffs can only prescribe to the extent of their possession and no further.
In the words of Lord Macmillan in Nageshwar Bux Roy v. Bengal Coal Co. Ltd. ILR 10 Pat, 407 at p. 414; (AIR 1931 P. C. 189 at p. 188)-
'Now there is undoubted authority for theproposition that where a person without any colour of right wrongfully takes possession as a trespasser of the property of another, any title whichhe may acquire by adverse possession will bestrictly limited to what he has actually so possessed. The maxim tantum prescriptum quantum possessum is rigorously applied to him.'
I do not, therefore, find any force in the argumentsadvanced by the learned counsel for the appellanton the second question under reference which inmy view should also be answered in the negative.The title to equity of redemption cannot be acquired by adverse possession, when the land is inactual possession of the mortgagee. There is nomerit in the appeal which should be dismissed.