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Harasit Golder and ors. Vs. Jaladhar Biswas and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtKolkata
Decided On
Reported inAIR1930Cal15,121Ind.Cas.407
AppellantHarasit Golder and ors.
RespondentJaladhar Biswas and ors.
Cases ReferredJuggobondhu v. Purnanand
Excerpt:
- .....7 to 11) mortgaged the disputed lands to the father of plaintiffs 1 and 2 in the year 1300 b.s. rati kanta and budhai executed another mortgage in favour of plaintiff 1 in the year 1304 b.s. plaintiff's father brought a suit on the first mortgage on 12th april 1906 obtained a decree on 24th june 1907 and purchased the mortgaged property on 18th july 1907 in execution of the decree. the sale was confirmed on 7th october 1909 and there was formal delivery of possession on 19th july 1910. during the pendency of the suit on the mortgage rati kanta and budhai executed a mortgage in favour of defendants 12 to 14 and the mortgagees defendants 12 to 14 entered into possession. this mortgage of 1313 was fully paid off. the plaint as originally filed was amended and the plaintiff prayed for.....
Judgment:

Mitter, J.

1. The relevant facts necessary for deciding the question of. limitation which falls for determination in this appeal may be briefly stated thus : Rati Kanta (the predecessor-in-interest of defendants 1 to 5) and Shambhu (the predecessor-in-interest of defendants 7 to 11) mortgaged the disputed lands to the father of plaintiffs 1 and 2 in the year 1300 B.S. Rati Kanta and Budhai executed another mortgage in favour of plaintiff 1 in the year 1304 B.S. Plaintiff's father brought a suit on the first mortgage on 12th April 1906 obtained a decree on 24th June 1907 and purchased the mortgaged property on 18th July 1907 in execution of the decree. The sale was confirmed on 7th October 1909 and there was formal delivery of possession on 19th July 1910. During the pendency of the suit on the mortgage Rati Kanta and Budhai executed a mortgage in favour of defendants 12 to 14 and the mortgagees defendants 12 to 14 entered into possession. This mortgage of 1313 was fully paid off. The plaint as originally filed was amended and the plaintiff prayed for recovery of joint possession of the half share of 24 bighas of land with Budhai defendant 6.

2. This suit was filed on 25th May 1921. The Munsif who tried the suit in the first instance held on 24th November 1922 that the valuation of the suit was beyond the pecuniary jurisdiction of, the Court and returned the plaint for presentation to the proper Court. The plaint was refilled on 17th January 1924. The lower appellate Court has given a partial decree to the plaintiffs and has directed that plaintiffs are to recover joint possession with defendant 6 of one half of sixteen bighas.

3. In appeal to this Court by defendants 1, 2, 12, 13 and 14 it is contended that there has not been a proper trial of the question of limitation as the possession of defendants 12 to 14 on the basis of mortgage of 1313 became adverse to Rati Kanta the mortgagee from the date the said mortgage was paid off and if it is found that the payment was made more than twelve years prior to the institution of the suit under Article 137, Schedule 1, Lim. Act, the suit would be barred by limitation and it is argued for the appellant that the case should be sent back for a proper trial of the question of limitation.

4. It is conceded by the appellant that for the purpose of determining the question of limitation 25th May 1921, the date on which the plaint was originally filed might be taken to be the date of the institution of the suit and if the payment of the mortgage of 1313 (1906) was made beyond twelve years of this date the suit is barred.

5. It is true the judgment-debtor, under the decree in mortgage suit instituted on 12th April 1906 was not in actual possession at the date of the sale but the mortgagee of the judgment-debtor was in possession, it is said that against such mortgagee symbolic possession of 19th July 1910 is not equivalent to actual possession, for the mortgagee would hold adversely to the mortgagor Rati Kanta after the payment of the mortgage-debt. It is said that symbolic possession cannot operate as actual possession against persons not parties to the suit in which the decree which resulted in the sale was made and reliance is placed on the two Full Bench decisions of this Court in Jaggabondhu v. Ram Chunder [1880] 5 Cal. 584, Juggobondhu v. Purnanand [1889] 16 Cal. 530. In the last case the defendants wore the judgment-debtors and the ijaradar under him. The suit was held not barred as it was brought within 12 years from the date of symbolical possession.

6. In our opinion the true rule deducible from the authorities is that where in execution of a decree symbolic possession is delivered of immovable property to the person entitled to possession thereof and such person brings a suit for recovery of actual possession the symbolic possession is deemed equivalent to actual possession as against judgment debtor or his representative and the suit is brought in time if it is brought within twelve years from the date of the said symbolic possession. The mortgage in favour of defendants 12 to 14 having been executed during the pendency of the suit on the mortgage of 1300 they are bound by the decree in execution of which symbolical possession was delivered. They are affected by the doctrine of lis pendens and symbolic possession as against them would be equivalent to actual possession and in this respect, their possession is not different from that of the judgment-debtor of the mortgage decree in the suit of 1906. Further in the present case the defendants 12 to 14 do not claim to be in possession of the disputed property adversely to the judgment-debtor for they entered into possession, on the foot of mortgage by the judgment-debtor. For the possession by mortgagee of mortgaged property is not prima facie adverse to the mortgagor. It is not said in this case that defendants 12 to 14 set up a hostile title to their mortgagor Rati Kanta but it is argued that if the mortgage debt was paid off in respect of the mortgage in favour of defendants 12 to 14 the possession of the latter became adverse to the mortgagor Rati Kanta from that date. We are unable to accept this contention for the mere payment of the mortgage money without more does not amount to adverse possession by the mortgagee after the date of payment. Under Article 148, Schedule I, Lim. Act the mortgagor gets 60 years from the due date of the monrtgage during which to redeem the mortgaged property and admittedly this time has, not yet expired.

7. In this view we think the judgment of the lower appellate Court is right and must be affirmed with costs.

Jack, J.

8. I agree.


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