(1) This appeal against the judgment of Basheer Ahmed Sayeed J. arises out of a suit filed in the City Civil Court at Madras by the respondent. J. G. Deniel, for possession of a house. The suit house belonged originally to one Kuppuswami Nattar who executed a mortgage over the property in 1926 to secure a sum of Rs. 1,000 borrowed by him from one Angammal. Angammal assigned the mortgage in her favour to one Rajagopala Naidu who in turn assigned it to one Kuppuswami Naidu. Kuppuswami Naidu filed a suit on the mortgage against the minor son of Kuppuswami Nattar who had died and obtained a decree for sale.
The final decree was assigned to the plaintiff in 1943 and he was brought on record as the transferee decree-holder. He therefore applied for sale of the house and purchased the house himself in court auction after obtaining leave to bid. After obtaining sale certificate when the plaintiff attempted to take possession of the suit property the defendant obstructed, urging that he was in possession in his own right. Hence the appellant was compelled to file a suit.
Several defences were raised by the defendant which it is not necessary to mention for the purpose of disposal of this appeal. Inter alia he contended that the suit was barred by limitation as the plaintiff and his predecessors-in-title were never in possession of the suit property within 12 years prior to the suit. He also set up a case of adverse possession alleging that he and his father Ponnappa before him had been in possession and management of the property even prior to 1926. Two issues were raised so far as limitation was concerned namely.
Issue 2: Is the suit barred by limitation, and has the defendant obtained title to the suit property by adverse possession and prescription ?
Issue 3: Has the plaintiff and his predecessor been in possession of the suit property within 12 years of suit?
The learned Judge of the City Civil Court who tried the suit found in favour of the defendant on issue 2, namely, that the defendant had obtained title to the suit property by adverse possession and on issue 3 he found that the plaintiff and his predecessors in title had not been in possession of this suit property within 12 years of suit. In view of these findings the suit was dismissed. The plaintiff appealed to this court (C. C. C. A. No. 145 of 1951). The appeal was heard and disposed of by Basheer Ahmed Sayeed J.
He allowed the appeal and set aside the decree of the learned City Civil Judge and passed a decree in favour of the plaintiff. He found that the original mortgage in favour of Angammal was a simple mortgage, and the defendant and his predecessors even if they had been in possession of the mortgage property, such possession would not be adverse either to the mortgagor or to the mortgagee and that it was not therefore necessary for the plaintiff to prove that he and his predecessors were in possession of the property in suit within 12 years.
The learned Judge therefore did not give any specific finding on the two issues and particularly issue 3, on the facts. His finding on issue 2 was based on the assumption in law that the possession of the defendant could not be adverse to the mortgagor because the mortgage was a simple mortgage, and he thought it was unnecessary to go into the facts to give a finding on issue 3, because it was not necessary in the circumstances for the plaintiff to prove that he and his predecessors in title were in possession within 12 years before the suit.
With respect to the learned Judge we are constrained to say that he was in error in the legal assumptions on which his judgment is founded. It is no doubt well established, vide Vyapuri v. Sonamma Boi Ammani, ILR 39 Mad 811 : AIR 1916 Mad 990, that adverse possession against a mortgagor would not affect the rights of a simple mortgagee. This would be so even in an extreme case in which the rights of the mortgagor might become extinguished by adverse possession by a trespasser, Srinivasa Ayyangar J. in ILR 39 Mad 811 : AIR 1916 Mad 990 observed at page 825 (of ILR Mad): (at p. 998 of AIR)).
'I see no reason therefore for holding that the extinction of the mortgagor's title by the adverse possession of a third party operates to extinguish the mortgagee's right to enforce his charge, any more than easements over the property.'
There is no authority however for the position that once a simple mortgage is executed there could be no possession by a third party adverse to the rights of the mortgagor. On principle such a position is untenable. The mortgagor is entitled to the equity of the redemption, and if the mortgage is a simple mortgage, is entitled to be in possession. There is no reason why a third party should not oust him from possession, and by continued possession over the statutory period of twelve years extinguish the mortgagor's right to be in possession. Once such right is extinguished the result would be that the third party trespasser would acquire the equity of redemption. Of course, as already mentioned, this result would not however affect adversely the rights of the mortgagee.
(2) The position therefore is this, that the learned Judge did not examine the facts and give his finding on both the material issues relating to limitation. But we do not think it is necessary to remand the case for fresh disposal. We shall assume for the purpose of this appeal that the defendant has not been able to establish adverse possession for over the statutory period,. Nevertheless it will be incumbent on the plaintiff to prove that he and his predecessors in title have been in possession o the suit property within 12 years of suit.
This is the rule of law laid down by the Full Bench of this Court in Official Receiver, East Godavari v. Govindaraju, ILR 1940 Mad 953 : AIR 1940 Mad 798. It was there laid down that in suits for ejectment where the plaintiff sues for possession of immoveable property in the occupation of another, the plaintiff cannot rest his case on title alone. Article 142 of the Limitation Act applies to such suits and the plaintiff must show that he has exercised rights of ownership by being in possession within 12 years of suit. There too the plaintiff was a purchaser at a Court auction held in execution of a mortgage decree which was obtained in a suit brought on a simple mortgage.
Now it cannot be denied, and learned counsel for the plaintiff-respondent frankly admitted that there is no evidence in this case that the plaintiff and his predecessors in title were in possession of the property within 12 years before suit. The only oral evidence adduced is that of the plaintiff himself and obviously he does not know anything about the position before his purchase. The documentary evidence does not assist the plaintiff improving that he and his predecessors in title were in possession at any time within a period of 12 years prior to suit. It is therefore unnecessary to remand the case for fresh disposal. The plaintiff's suit must be held to be barred by Art. 142 of Schedule I of the Limitation Act.
The appeal is allowed and the plaintiff's suit is dismissed. As the plaintiff obviously has title in view of the fact that the mortgage was valid, we direct that each party should bear his own costs in all the Courts. As the appeal was filed in forma pauperis, the appellant will pay the Government the court-fee payable on the memorandum of appeal.
(3) Appeal allowed.