1. This appeal by special leave is directed against the judgment of the High Court of Mysore whereby the High Court allowed the second appeal filed by Subbanna' plaintiff, respondent before us hereinafter referred to as the plaintiff, and decreed his suit to the effect that 'the appellant plaintiff aforesaid do recover possession of the suit schedule property from the respondent defendants.' The High Court further ordered an enquiry in regard to mesne profits under Order XX Rule 12 (c), Civil Procedure Code.
2. In order to appreciate the points raised before us it is necessary to set out the relevant facts On February 21, 1929, Subba Rao, father of Smt. Lalithamma, defendant, appellant before us and hereinafter referred to as the de fendant, mortgaged the entire village, Paramanshalli, to the Bangalore Central Co-operative Bank Ltd. This was a simple mortgage. On October 31, 1932, Subba Rao executed a registered lease deed in respect of the suit lands in favour of the defendant who was then about 14 years old. On July 31, 1933, the Bank obtained a decree against Subba Rao on the basis of the mortgage, and on August 1, 1940, the Bank purchased the village in auction sale held in execution of the decree. On March 18, 1941, the Bank obtained symbolic possession. On August 10, 1949, the Bank sold the village by a registered deed in favour of Subbamma, plaintiff. On November 30, 1951, the plaintiff filed Original Suit No. 891 of 1951-52 in the Court of the Munsif at Mumkur for possession of the suit lands and for recovery of future mesne profits from the date of the suit to the date of the delivery of possession of the property. On December 5, 1952, the suit was dismissed by the trial court. On October 30, 1953, the lower Appellate Court dismissed the appeal filed by the plaintiff.
3. On March 15, 1959, the Mysore (Personal and Miscellaneous) Inams Abolition Act, 1954--Mysore Act I of 1955, hereinafter referred to as the Inams Abolition Act, received the assent of the President.
4. On July 25, 1961, the second appeal filed by the plaintiff was allowed by the High Court, as stated above. On October 5, 1961, special leave was granted by this Court. During the pendency of the appeal in this court, by order dated June 16, 1963, the Additional Special Deputy Commissioner for Inams Abolition passed an order under Section 10 of the Inams Abolition Act registering the defendant and her husband jointly as permanent tenants under sec. 5 of Inams Abolition Act, with premium.
5. The learned counsel for the defendant contends that (1) by reason of the provisions of the Inams Abolition Act, the plaintiff has no right to get possession as all interests vested in the State; (2) that the defendant had acquired permanent tenancy rights by adverse possession; and (3) that in any event the defendant having been declared under Section 10 of the Inams Abolition Act to be a permanent tenant under Section 5 this status cannot be disturbed now in these proceedings.
6. There is force in the first point raised by the learned counsel. By virtue of Section 3(1) (b) of the Inams Abolition Act on a notification being issued under Sub-section (4) of Section 1 in respect of any Inam 'all rights, title and interest vesting in the Inamdar including those in all communal lands, cultivated land, uncultivated lands... . shall cease and be vested absolutely in the State of Mysore, free from all encumbrances.' Under Sub Clause (e) 'the inamdar shall cease to have any interest in the inam other than the interests expressly saved by or under the provisions of this Act.
7. It is not seriously disputed before us that the right to obtain possession of land vested in the State and the plaintiff has no longer any right to obtain possession. This Court, while dealing with a similar enactment (Bihar Land Reforms Act, 1950 ) in Surajnath Ahir v. Prithinath Singh, (1) observed :
'We are therefore of opinion that the respondents lost their rights to recover possession from the appellants, even if they were trespassers, on their estate vesting in the State, by virtue of Sections 3 and 4 of the Act and that therefore, thereafter, they had ho subsisting right to recover possession from the appellants. The right to possession now-vests in the State. The respondents being no more entitled to recover possession of the land in suit the decree of the High Court has to be set aside.'
In the present case also the decree passed by the High Court for possession has to be set aside.
8. Coming to the question of adverse possession it seems clear that on the facts given above no question of adverse possession having been established arises. In Nagubai Ammal v. B. Shama Rao (2) this Court observed :
'We may add that the question of limitation cannot really arise on the facts of this case, inasmuch as the possession which is claimed to be adverse is stated to have commenced in 1920, and it is well settled that such possession cannot affect the right of a prior mortgagee to bring the properties to sale, and adverse possession against the purchaser under that sale cannot commence prior to the date of that sale, and the present suit was instituted on 8-1-1945 within 12 years of the sale, which took place in 1936.'
9. Applying these observations to the facts of this case it is quite clear that the mortgagee was not entitled to obtain possession under the mortgage and any alleged adverse possession by the defendant against Subba Rao, the mortgagor, would not affect the rights of the mortgagee bank. The mortgagee bank purchased the village in auction sale held under the decree and it was on March 18, 1941, that symbolic possession was delivered to the Bank. It is only from this date that any alleged adverse possession by the defendant could possibly arise. But as the suit was filed within 11 years of this date the defendant had not completed the 12 years prescribed in Article 144 of the Limitation Act.
10. But we are unable to wholly set aside the decree for mesne profits. It is clear that the plaintiff is entitled to mesne profits from the date of the suit till the estate vested in the State, i. e. October 2, 1959. Under Section 3(1)(d) it is only the rents in respect of land comprised in the Inam accruing on or after the date of vesting which shall be payable to the State. This Act does not affect the right of an erstwhile Inamdar to obtain arrears of rent or mesne profits up to the date of vesting.
11. We are unable to agree with the learned counsel for the defendant that the order of the Additional Special Deputy Commissioner for Inams Abolition prevents the civil courts from determining the title of the plaintiff in respect of the land in suit upto the date of its vesting in the State. It seems to us that the defendant had no tenancy rights in the land in dispute as at the time when the lease was executed, i. e. October 31, 1931, the defendant was a minor and the contract of lease was void. If the lease was void she had no tenancy rights in the land and the plaintiff was entitled to recover mesne profits in respect of the land in the defendant's possession for the period above mentioned.
12. Accordingly the appeal is partially allowed, the decree passed by the High Court is set aside & it is decreed that the plaintiff will be entitled to mesne profits from the date o f the institution of the suit to October 2, 1959, and there shall be an enquiry under Order XX Rule 12(2) of the CPC. Under the circumstances there will be no order as to costs of this appeal in this Court.