1. At a Court sale upon a mortgage decree the 1st respondent purchased inter alia a plot of land measuring 7 cents in extent denoted by the Survey Number H (61) situated in Manianacorai 'together with the buildings and erections thereon and the fixtures thereon and together with all the bluegum trees and other trees thereon.'
2. The judgment-debtor's house stands on H. 61 and this passed to 1st respondent by the sale. In front of the house there are two plots which were not sold at the court sale. One is 56 A-3 on which the verandah and two projecting wings of the judgment debtor's house have been built, and the other is H 58-3 which serves as an approach to the house from the public road.
3. When the purchaser fist respondent took delivery of the house, he was obstructed by the judgment-debtors (who are appellants in the High Court from obtaining possession of the two other plots. So he successfully took proceedings under Order 21, Rule 97 in the Subordinate Judge's Court, Ootacamund, to remove the obstruction. As the obstructors were the judgment debtors, Section 47, Civil Procedure Code, applies and they have appealed under Section 96 from the Subordinate Judge's order.
4. The learned Subordinate Judge was in my opinion perfectly right in holding that the property in 56 A-3 and H 58-3 did not pass at the sale to the purchaser of H. 61.
5. It is immaterial to consider whether these plots would have passed as ' appurtenances to the premises' if the words 'firstly and secondly, described' which qualified the word 'appurtenances' in the mortgage deed had not been omitted (probably through the carlessness of some clerk in. the Sub Court,) from the decree and the sale proclamation, because there can be no doubt that according to the sale proclamation and the sale certificate the appurtenances to the premises at Manjanacorai were neither advertised for sale nor sold.
6. The Subordinate Judge held that the two disputed plots were accessions to plot H. 61 and that they should, be deemed to have been sold in consequence of the provisions of Section 70 of the Transfer of Property Act. Sections 63 and 70 of the Transfer of Property Act must be read together. They involve the prin-ple of Roman Law that accessions go with the principal and apply it to mortgaged property. The illustrations to Section 70 give instances of increase by alluvium and of building on the soil of another. Under Section 63 accession to mortgaged property must be received during the continuance of the mortgage for the application of this principle and under Section 70 it must be the same. Although the words of that section only make it necessary that the accession should be after the date of the mortgage, it must also be understood that it is before the mortgage becomes extinguished.
7. The present is not a true case of accession. There is here neither accession by natural increment nor accession in favour of one of two owners. The plots in dispute were the property of the Government. Neither the mortgagors nor the mortgagee had any right in them before the judgment-debtors acquired them by purchase from Government on a date subsequent to the date of the Court sale at which the 1st repondent purchased, Survey No. H. 61. (Compare Kodi Sankara-Bhattar v. Moldin (1918) 8 L.W. 100 .)
8. The case of Surya Narayan Mandal v. Nanda Lal Sinha I.L.R(1906) . C. 1212 Which the Subordinate judge incorrectly thought to be on all fours with the present case, was an instance of the merger of two interests, the Shikmi interest and the mokarari interest in the same land (chuck). The sale took place in 1902 after the Merger had been effected by the purchaser in 1886 by one of the mortgagors of the mokarari interest in execution of a decree obtained against the holders of the mokarari tenure. Thus it was a clear case of accession. In the case before us there are not two interests in the same land, but two different lands.
9. How far acquisitions made by a mortgagee enure for the benefit of his mortgagor is a question which has been fully considered under the law in force previous to the passing of the Transfer of Property Act in the Privy Council case of Raja Kishendatt Ram v. Raja Mumtaz Ali Khan I.L.R(1879) . Cal. 198 in which reference is made to the English cases of Rakestrew v. Brewer Mosely 189 and Doe' v. Pott. 2 Dough 710 the first of which dealt with an accretion to a m&rtgage; of renewal of the term and the second dealt with the accretion to a mortgage of certain copyholds purchased by the mortgagors during the continuance of the mortgage. In Raja Kishendatt Ram v. Rajah Mumtaz All Khan I.L.R(1879) . Cal. 198 certain subordinate proprietary rights which the mortgagee acquired by purchase during the continuance of the mortgage and allowed to merge in the principle property prtor to redemption were held to enure for the benefit of the mortgagor oa redemption.
10. Where acquisitions are made by a mortgagor after the decree for sale has been passed and after the mortgaged property has been sold, there is no equity in favour either of the mortgagee or of the purchaser at Court auction to have such acquisitions taken away from the person who paid for them and attached to the property already sold under the decree. For at the time they were acquired the mortgage interest had ceased to exist.
11. The 1st respondent's counsel has tried to make out a new Case that these are easements either for necessity Or in the course of perfection by prescription. A mere user which had not ripened by prescription (in this case by 60 years' enjeyment against Government) would not give rise to any right upon which an action could be founded. See Narasappayya v. Ganapathi Rao I.L.R(1913) Mad 280 , unless some kind of possessory title, as was the case in Kandapa Rajam Naidu v. Devarakhonda Surya Narayana (1910) 1 L.R. 34 Mad. 173, existed in the plaintiff's favour. At the date of the 1st respondent's purchase, the appellants whose rights he purchased could not have maintained a suit against Government to establish their easement rights over the soil of 56-A-3 and H 58-3 and therefore no easement rights become vested in the purchaser in consequence' of the sale. The only right that the mortgagors then possessed was the right to the soil of H. 61 and the building thereon and fixtures, which will include the two projecting wings of the house, but not the ground on which they stand.
12. The appeal must therefore be allowed and the petition dismissed with costs of appellants against 1st respondent here and in the Court below.
13. I agree.