D. Falshaw, C.J.
1. This is an appeal filed under Clause 10 of the Letters Patent by Mange and others, plaintiffs in the original suit, against the order of a learned Single Judge dismissing their second appeal and upholding the order of the Additional District fudge accepting the defendants' appeal and dismissing the suit.
2. The facts are that by a registered deed dated the 30th of May, 1893 Hasti gifted 37 bighas 6 biswas of land and a house to some of his collaterals, the share of Bahala, the ancestor of the plaintiffs, being one-third while the remaining two-thirds went to Ganga Ram, Majla and Jug Ram, the ancestors of the defendants. The donor was a resident of a village called Deeghal while the donees resided in a village called Bhupania and it was stated in the deed that if the donees who resided in Bhupania did not settle in Deeghal they would not be entitled to alienate the property by way of sale or mortgage. This was followed by a mutation in 1896. When Hasti died in 1904 Ramji Lal son of Bahala and predecessor of the plaintiffs tried to claim a further 70 Bhighas of land left by Hasti on the ground that the other donees had not settled in Deeghal, but this attempt was unsuccessful and me land was mutated in the names or all the donees, and all me land once owned by Hasti has continued to be shown in their names and names of their descendants as joint owners ever since.
3. There seems to be no doubt that the whole of the land at Deeghal has remained in possession of the descendants of Bahala and that the defendants or their predecessors at no stage made any attempt to interfere with their enjoyment of the land. Indeed no threat to the plaintiffs' enjoyment of the land appeared on the horizon until consolidation proceedings started in the village of Deeghal in 1960, and in those proceedings the authorities were bound to give effect to the entries regarding ownership in the revenue records. It was on this account that the plaintiffs instituted the suit which has given rise to this appeal in December 1960 claiming a declaration that they were the sole owners or the whole of the land which formerly belonged to Hasti on the ground that the defendants had lost any rights they may ever have had in the land.
4. The trial Court found in the plaintiffs' favour on the main issue whether the rights of the defendants had become extinct in the suit property for the reasons mentioned in paragraph 8 of the plaint and decreed the suit. The defendants' appeal was accepted by the learned Additional District Judge and the plaintiffs' suit was dismissed as also was their second appeal by the learned Single Judge.
5. The trial Court had found that the defendants' rights in the land had become extinct because they had remained in Bhupania and had abandoned their rights and that the plaintiffs had become owners of the land by adverse possession because they had been realising rents and profits from the land all along without any claim from the co-sharers, and also because Ramji Lal, the son of the original donee Bahala, had redeemed several mortgages of parts of the land made by Hasti in his lifetime.
6. It was rightly held by the learned Additional District Judge and the learned Single Judge that there could be no question of decreeing the plaintiffs' suit on the ground that the defendants or their predecessors had abandoned their rights in the land because abandonment was never pleaded in paragraph 8 of the plaint. Not only was abandonment not pleaded in specific terms, but not even the ingredients of abandonment, which has a definite meaning, were alleged. It seems to me that it was also rightly held by the learned Additional District Judge and the learned Single Judge that there was no question of adverse possession in the ordinary sense in this case since there was no overt act of any kind by the plaintiffs or their predecessors which could form the starting point of adverse possession. As regards the ground based on the fact that the plaintiffs' predecessors had migrated from Bhupania to Deeghal, whereas the defendants' ancestors had not done so, this would not in any way affect their rights even in the gifted land since in the deed the only proviso was that if any of the donees did not take up residence in Deeghal he would have no right to alienate the land. It was not provided that he would lose his share.
7. There is, however, one point on which the appeal appears to have some force. This relates to the redemption by Ramji Lal of a number of mortgages of parts of land made by Hasti. It is clear from the deed of gift itself that the whole of the gifted land was under mortgage at that time, which means that the mortgage was prior to 1893, and on various dates between 1905 and 1917 all the mortgages of parts of land, eight in number, were redeemed y Ramji Lal. The last of these redemptions in 1917 took place some 43 years before the suit was instituted and there is no suggestion that the defendants or their predecessors ever made any effort to contribute their share towards the cost of redemption at any time, and the learned counsel for the appellants has argued that at any rate in respect of the land which was under mortgage, which amounts to about 70 bighas including the land originally gifted, the defendants had lost all rights and the plaintiffs had become owners by adverse possession.
Reliance was placed on the decision in Valliamma Champaka v. Sivathanu Pillai, AIR 1964 Mad 269 (FB). This case went before a Full Bench and in the event S. Ramachandra Iyer C. J. and Jagadisan J. were on one side with Venkataraman J. dissenting. The opinion of the majority is summed up in the following passage :--
So long as the right to contribution subsists in the redeeming co-mortgagor, the non-redeeming co-mortgagor will have a corresponding right to pay up his share and get delivery of possession of his properties. Thus there will be two periods within which a non-redeeming mortgagor can obtain his property from his co-mortgagor who had redeemed, the first is based on the rule of subrogation and the second is the correlative obligation in the redeeming co-mortgagor to give up the property belonging to his co-mortgagor on being paid the money due by him. In the former case where the mortgage is possessory, the period of limitation will be governed by Article 148 and the starting point for limitation will be the same as for the original mortgage redeemed. In the latter case, the non-redeeming co-mortgagor will have a period of 12 years from the date of redemption of the original mortgage by the other co-mortgagor. It will be open to the non-redeeming co-mortgagor to take advantage of any one of these periods whichever is to his advantage.'
8. The learned majority Judges agreed that since under Article 132 of the Limitation Act the redeeming co-mortgagor was given a period of limitation of 12 years for a suit to recover his proportionate share from any co-mortgagors, the same period of 12 years would be the period in which a non-redeeming co-mortgagor could institute a suit to force the redeeming co-mortgagor to accept his share of the mortgage money and give him his share in the mortgaged property, but this would be subject to the period of limitation of 60 years for redeeming a mortgage contained in Article 148. The main point of the decision was that the redemption by one co-mortgagor would not Start a further period of 60 years for any co-mortgagors to assert their rights in the redeemed property. It was contended in the present case that the period of 60 years from the date of the original mortgages had expired before the plaintiffs' suit was filled in 1960 and therefore they had become owners by adverse possession of the portion of the land which had been under mortgage.
9. This argument was advanced before the learned Single Judge, but he expressed the opinion that it was not necessary for him to decide whether the defendants still had any right of retrieving the land which had been retrieved by the plaintiffs' ancestors. He merely expressed the view that a claim for adverse possession could not be founded on the basis that a non-redeeming mortgagor had failed to obtain relief within the period of limitation from a redeeming mortgagee, but it does not appear that his attention was drawn to the provisions of Section 28 of the Limitation Act. This section reads --
'At the determination of the period hereby limited to any person for instituting a suit for possession of any property his right to such property shall be extinguished.'
10. It seems to me that in these circumstances the plaintiffs were entitled to a declaration that they had become owners of such land is had been mortgaged by Hasti and redeemed ay Ramji Lal in respect of which the period of limitation of 60 years fixed by Article 148 of the Limitation Act had expired. This is certainly the case in respect of the 37 bighas 6 biswas gifted by Hasti to the parties predecessors in 1893 since the land was under mortgage at that time, and the term of 60 years would end in 1953, 7 years before the suit. There is, however, no material on the record from which the dates of the other mortgages redeemed by Ramji Lal can be ascertaised. Those other mortgages may have been created before 1893 or at any time between 1893 and 1904 when Hasti died, and in respect of any mortgages created between 1901 and 1904 the period of 60 years would not have expired when the plaintiffs' suit was instituted in 1960. In the circumstances I am of the opinion that the appeal must be allowed and the plaintiffs' suit decreed to the extent of granting them a declaration that they are the sole owners of 37 bighas 6 biswas of land governed by the deed of gift executed by Hasti in 1893. The parties may be left to bear their own costs.
Mehar Singh, J.