A.N. Bhandari, C.J.
1. Two questions arise for decision in the present case, namely (1) whether the mortgagors have brought the suit within the period prescribed by law, and (2) whether the mortgagees' rights of possession have ripened into rights of ownership by efflux of time.
2. The proprietary rights in a certain plot of land vested in the State while the occupancy rights vested in Rang Lal, Ram Lal and Lal Singh. In the year 1906 the occupancy tenants mortgaged their occupancy rights with one Sufaid for a sum of Rs. 270/- and four years later the State sold its rights of ownership to the same person. On the 4th June 1931 Ghassi son of Sufaid transferred his rights by way of sale to Charanji Lal; on the 17th June 1943 Charanji Lal transferred these rights to Nathi and on the 1st February 1950 Nathi transferred them by way of gift to his sister Kasturi Devi.
3. On 9-2-1953 Chuni Lal who is a successor-in-interest of the original mortgagors and certain other persons who are transferees from him brought a suit against Kasturi Devi for the redemption of the property. The trial Court dismissed the suit, but the learned District Judge decreed the claim and the order of the learned District Judge was upheld by a learned Judge of this Court. The defendant has appealed.
4. Mr. P. C. Pandit who appears before us for the defendant urges that the Courts below should have dismissed the plaintiffs' suit because the suit is barred by time and because the defendant's rights in the property have ripened into rights of ownership by the passage of time.
5. The question of limitation appears to me to present no difficulty whatsoever. It will be recalled that the original mortgagors created the mortgage in the year 1906, that Ghassi transferred his rights in the property to Charanji Lal in the year 1931, and that Chuni Lal and others brought the suit for redemption on the 9th February 1953. Prima facie, the suit is well within time, for Article 148 of the Limitation Act empowers a mortgagor to bring a suit against a mortgagee to redeem or recover possession of immovable property mortgaged within a period of sixty years from the date on which the right to redeem or to recover possession accrues. But it is contended on behalf of the defendant that the suit is governed not by the provisions of Article 148 reproduced above but by the provisions of Article 134 which declares that a suit to recover possession of immovable property mortgaged and afterwards transferred by the mortgagee for valuable consideration must be brought within a period of twelve years. The present suit, it is contended, was brought long after the expiry of this period and must therefore be held to be barred by time.
6. The object of Article 134 is to cut down the period available to the mortgagor under Article 148 and to compel him to watch the conduct of the mortgagee and to intervene on transfer. The help of this article can be invoked only if the defendant establishes to the satisfaction of the Court that the mortgagee or his successor-in-interest has transferred something other than the original mortgage; something more than the mortgage; something larger than the mortgage; an interest unencumbered by the mortgage (James Richards R. Skinner v. Naunihal Singh, AIR 1929 PC 158; Sri Ram v. Najibullah, AIR 1926 Oudb 547 (FB); Nani Bai v. Gita Bai, AIR. 1958 SC 706.
He must show that the mortgagee has transferred some right belonging to the mortgagor over and above the mortgagee rights acquired by him. If, for example, a mortgagee proceeds to transfer not only the mortgagee rights acquired by him from the mortgagor but also the rights of owner-ship vesting in the mortgagor, a suit by the mort- gagor to recover property from the transferee of absolute title from the mortgagee would be governed by Article 134 and not by Article 148. (AIR 1926 Oudh 547).
7. A question at once arises whether Ghassi, the original mortgagee, purported to transfer to Charanji Lal an interest larger than was given him by the mortgage of the year 1906. The original deed, dated 4-6-1931, executed by Ghassi in favour of Charanji Lal has not been produced and its contents have not been brought out by independent evidence. The Court is thus left to judge what was transferred from a perusal of the judgment in a suit for possession which was brought by Charanji Lal against Ghassi in the year 1932 and in which a decree for possession was passed in favour of Charanji Lal on 14-6-1933. One of the pleas raised by Ghassi in defence to Charanji Lal's suit was that he had transferred only the rights of ownership acquired by him from the State and that he had not transferred the mortgagee rights acquired by him from the original occupancy tenants.
The Court came to the conclusion that Ghassi had transferred all the rights in the property vesting in him, namely the rights of ownership acquired by him from the State and the rights of a mortgagee acquired by him from the occupancy tenants. There is not an iota of evidence On the-record in support of the contention that he transferred some right belonging to the mortgagors over and above the mortgagee rights acquired by him. He did not transfer something more than the mortgage. I have accordingly no hesitation in endorsing the view of the learned Single Judge that there can be no question of the applicability of Article 134 of the Limitation Act.
8. This brings me to the consideration of the second question which has been raised by Mr. Pandit, namely whether the defendant has acquired the rights of ownership in the property bv efflux of time.
9. It is common ground that the mortgagors were members of an agricultural tribe, that the mortgagee was not a member of the same tribe or a tribe in the same group, and that in view of the provisions of the Alienation of Land Act the mortgage took the form of a usufructuary mortgage for a period of twenty years. Mr. Pandit contends that as soon as tin's period of twenty years expired in the year 1926 the debt was extinguished by the operation of law (section 7) and the mortgagors became entitled to the redelivery of the land (Section 6(a)).
The mortgagors did not claim repossession of the property in the year 1926 and the status of the mortgagees was altered into that of trespassers. By the year 1953 when the plaintiffs brought the suit for redemption, out of which this appeal arises, the defendant had maintained possession for the statutory period and had thus acquired title by adverse possession. Deputy Commr., Gujrat v. Allah Dad, AIR 1937 Lah 408 has been cited in support of this contention. In this case Addison J. held that under Section 14 for want of sanction of the Deputy Commissioner the sale took effect automatically as a usufructurary mortgage for the term of twenty years but it ceased to be a mortgage at the end of that period and the vendee became trespasser after expiry of that period, The vendee being then in possession only for three years after such period, his claim to properly by adverse possession could not succeed.
10. I must confess with great regret that I am unable to concur in this view. A person is said to be in lawful possession of immovable property when he holds it as an owner or with the consent of the owner. He is said to be in adverse possession thereof when he holds it not under the legal proprietor or by his consent, express or implied, but under a claim of right or colour of title. If the possession can he said to be the constructive possession of the true owner or if it can be said to be in subservience to the rights of the true owner, it cannot ripen into title by adverse possession, no matter how long maintained, since hostility is of the very essence of adverse possession. When the original entry is made with the permission of the true owner the law presumes that such an occupation is in subordination to the legal title. The possession continues to be permissive as long as it is apparently permissive, for one must proceed on the assumption that the possession is with amity and in subservience to the title of the rightful owner.
11. A mortgagee remaining in possession of the mortgaged premises after the extinguishment of the mortgage, without any person or express repudiation of the relation created by the mortgage, is not in contemplation of law holding adversely to the mortgagor, whatever may be his secret intention. His possession in such a case is presumed to be in subordination to the legal title. Where the mortgagee is in possession of land under colour of an invalid mortgage deed, his possession is with the permission of the mortgagor and is not adverse (Mt. Raj Rani v. Gulab, AIR 1928 All 552). Again, where a person who obtains possession under an invalid mortgage and there is nothing to show that at any time he has asserted possession under any claim of absolute right, he acquires by the lapse of twelve years a prescriptive right to limited interest by way of mortgage (Purushottam Das v. S. M. Desouza, AIR 1950 Orissa 213). Again, a person in possession of a property as usufructuary mortgagee under a void mortgage for more than twelve years acquires by prescription the rights of a mortgagee (Sontyanagopala Dassee v. Kami, ILR 44 Mad 946: (AIR 1921 Mad 410(2))).
12. The possession necessary to support aclaim of title by prescription must be adverse, thatis it must be actual and uninterrupted, open andnotorious, hostile and exclusive and under a claimof right for the statutory period. If any of theseelements is lacking title by adverse possession cannot ripen. Adverse possession is when the one inactual possession asserts ownership in himself andclaims title to the land in hostility to the claims ofall other persons. It is an aggressive act and it isnecessary therefore that before permissive possession can be converted into adverse possession thereshould be a disclaimer of the owner's title of sucha character and so open that the real owner mustbe presumed to know that possession adverse to histitle has been taken.
Nothing but a clear, unequivocal and notorious disavowal of the title of the owner will render the possession, however long continued, adverse to him. It is open to a mortgagee in possession, before or after the extinguishment of the mortgage, to set up an adverse claim by denying the mortgage, by asserting a title in himself, and by disavowing the idea of holding for and in subservience to the mort- gagor. He may manifest his intention of setting up an exclusive title in himself either by an actual notice or by acts which are so clear, positive and unequivocal that the true owner must reasonably and necessarily be considered to have notice that the land in question is being held by the mortgagee as his own. Adverse possession must be made out by clear and positive proof and not by inference as every presumption is in favour of a possession in subordination to the title of the true owner.
13. Now, what were the facts and circumstances of the present case? The mortgagors in the present case mortgaged their property in the year 1906 and as the mortgagee was a non-agriculturist, the mortgagee could retain possession of the property for a period of twenty years under the provisions of Section 6(a) of the Alienation of Land Act. The property was not redeemed in the year 1926 or thereafter and the mortgagees continued to remain in possession thereof. Their possession after the year 1926 must be deemed to be permissive and in the same capacity as the capacity in which they held the land originally.
Neither the mortgagee nor his successor-in-interest put the property to a use which was inconsistent with the rights of mortgagors as occupancy tenants. They did not deny the mortgagors' rights under the mortgage and did not set up an adverse or exclusive claim in themselves. The mere fact that they continued to retain possession of the property after the mortgagee rights had been extinguished by the operation of law, does not indicate any hostility on their part to the claims of mortgagors as occupancy tenants. It seems to me therefore that even though the possession of the land remained with the mortgagees after the mortgage had been extinguished and even though the possession was not surrendered to the mortgagors the possession cannot, in the absence of a hostile act, be deemed to be adverse to the mortgagors.
14. For these reasons I would uphold the order of the learned Single Judge and dismiss the appeal with costs. Ordered accordingly.
D. Falshaw, J.
15. I agree.