1. The property in question in this suit had belonged to the joint family of the plaintiff, the first three defendants, and one Kandu Nayar.
2. In 1858 there is said to have been a mortgage granted by Kandu Nayar, the karnavan, which was renewed in 1876.
3. About 1852 the entire tarwad lands were apportioned, 51 paras of land being assigned to plaintiff's branch, and 51 paras to that of the first three defendants, and the 25 paras concerned in this suit to Kandu Nayar. It is found that at this date, or subsequently, there was a division, and that the family was no longer in union at the date of Kandu Nayar's death in 1865. Plaintiff and the first three defendants are children of sisters of Kandu Nayar, and as the 25 paras of land had become by the division his property, at his death the plaintiff and these defendants would take it in equal shares.
4. The fourth defendant who obtained a decree against the first three defendants attached half of this property left by Kandu and had it sold in execution of his decree as the half share of those defendants. Plaintiff in this suit sued to set aside the sale in execution on the ground that the property attached and sold is the common property of the tarwad of plaintiff and defendants and not liable to be sold.
5. The District Court, in its revised judgment, affirmed that of the District Munsif holding that plaintiff had not established an exclusive possession of the property such as to entitle him to set up his possessory title as against that of defendants.
6. What was found appears to be that the 25 paras became the separate property of Kandu Nayar and that plaintiff and defendants were each entitled to a half at his death.
7. Then, the question is whether as plaintiff has admittedly received the rents and profits of the land since Kandu Nayar's death, and actually obtained a decree for redemption of four out of fourteen items of the lands 1 to 14, obtained possession of them and re-mortgaged the whole fourteen items to fifth defendant in 1876, he must not be regarded as having had exclusive possession for a period sufficient to give him a title against the first three defendants to the equity of redemption of the property.
8. The equity of redemption was vested in Kandu at his death, and devolved on plaintiff and the first three defendants in equal shares: that is to say, they were co-owners holding in equal shares, with a right of action to redeem. The juridical possession (see Savigny on Possession, Bk. II, Section XXVI) remained with the mortgagee.
9. The receipt of rents by plaintiff did not change the possession so long as the mortgage subsisted. As to the property, therefore, plaintiff never had physical or juridical possession till 1876, when he obtained a surrender of the whole and made a re-demise, and as to items 11 to 14 he only obtained possession in 1870. As to none of the properties, therefore, has there been possession for a period such as would entitle plaintiff to lay exclusive claim to them.
10. Section 28 of the Limitation Act provides for the extinguishment of a right of property at the determination of the period limited by the Act for instituting a suit for possession of the property.
11. The property in question here is the fourteen items of land. As to four of those items, plaintiff undoubtedly got possession in 1870; but as a period of twelve years had not elapsed before suit, the right of the first three defendants was not determined at the date of the suit as to those items.
12. Plaintiff' also obtained a surrender of the entire property from the mortgagee in 1876 and made a re-demise of it, treating it as his own property, but for the same reason as in the case of the four items the right of the first three defendants is not determined as to the whole property, twelve years not having elapsed at the date of the suit since this action of plaintiff in 1876.
13. There can, therefore, have been no such adverse possession in plaintiff following his action in 1870 and 1876 as could give him a title to the property by prescription.
14. Then, has the receipt of rents and profits since 1864 the effect of giving plaintiff such a hostile possession as to extinguish the right of the first three defendants?
15. The position of plaintiff in the suit must be borne in mind. He must make out his title, and the only way he can do so is under Section 28 of the Limitation Act already quoted--Gossain Doss Chundu v. Issur Chundu Nath I.L.R. 3 Cal. 224
16. Now, what is the title he claims? It is a title to the property. To show that the title 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.
17. 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 be 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.
18. 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.
19. The exclusive receipt of the rents, therefore, by plaintiff for twelve years prior to the suit could not have had the effect of determining the right of the first three defendants to redeem, and consequently did not vest plaintiff with a hostile possession of that right. We, therefore, dismiss the appeal with costs.