1. This appeal arises out of a suit to redeem and recover possession of a certain taluq. The facts are as follows: The taluq originally belonged to three brothers Dhaniram, Gurudas and Kailash. In the year 1249 M.E. (1887) the taluq was mortgaged by the three brothers to defendant No. 1 Abidulla. On the 7th May 1890 a person of the name of Akbar Ali purported to purchase the whole taluq in execution of a decree against Dhaniram and Gurudas. On the 6th April 1892 Akbar Ali redeemed the mortgage of Abidulla. Having done so, on the 19th April 1892 he obtained possession of the rand through Court. On the 15th September 1893 he further procured from the superior landlord a settlement of the whole taluq in his favour. The record of rights which was published in the year 1898 contains an entry showing that the taluq was then in exclusive possession of Akbar Ali, under and by virtue of the sale certificate in his name. On the 5th January 1902 Akbar Ali's sons granted a raiyati lease of the land to defendant No. 2 and on the 10th January 1907 they sold the superior right to defendant No. 9. On the 25th September 1907 the plaintiff purchased the right of Kailash, one of the original owners of the taluq whose interest did not pass at the sale in execution of the decree obtained by Akbar Ali. On the 7th June 1911 the plaintiff brought the present suit claiming the right, as I have said, to redeem the defendant No. 9 and to recover possession of the land.
2. In the trial Court the case appears to have been discussed and decided on the footing that the plaintiff was claiming a right to redeem the mortgage in favour of Abidulla. The learned Munsif found that on that footing the plaintiff was only entitled to redeem as against the defendant No. 9, a one-third share of the taluq on payment of a proportionate amount of the mortgage-debt. The Munsif further held that the plaintiff was not entitled to eject the defendant No. 2, being apparently of opinion that the defendant No. 2 had a right to remain in possession on the principle laid down in the case of Binad Lal Pakrashi v. Kalu Pramanik (1893) I.L.R. 20 Calc. 708.
3. From the Munsif's decree the plaintiff preferred an appeal to the lower Appellate Court and there was also a cross-objection on behalf of the defendant No. 9. The learned Subordinate Judge dealt with the case on a somewhat different footing. He held, in my opinion, rightly, that on the redemption of the original mortgage by Akbar Ali that mortgage came to an end and ceased to exist. Applying Section 95 of the Transfer of Property Act, he held that Akbar Ali became entitled, as against Kailash, to a charge on a one-third share of the land in respect of the latter's one-third share of the mortgage-debt, and that, by paying that share of the debt, Kailash, or the plaintiff in right of Kailash, was entitled to redeem the charge. In regard, therefore, to the plaintiff's claim as against the defendant No. 9, the learned Subordinate Judge arrived by a different process at the same result at which the learned Munsif had arrived. In regard, however, to defendant No. 2, the learned Subordinate Judge took a somewhat different view of the facts, and held that defendant No. 2 was not entitled to remain in possession. By his decree the Subordinate Judge varied the decree of the first Court, by directing that the plaintiff should recover khas possession of a one-third share of the taluq by ejecting the defendant No. 2.
4. The defendants Nos. 2 and 9 have appealed to this Court and on their behalf it is argued that the Subordinate Judge though he may have correctly appreciated the legal position, was not entitled to decide in favour of the plaintiff, without considering the question of limitation. On that question, the learned pleader for the appellant relies on the decision of the Bombay High Court in the case of Vasudev Bhikaji v. Balaji Krishna (1902) I.L.R. 26 Bom. 500. It was held then in circumstances somewhat similar to the present, that Article 148 of the Limitation Act was applicable to a suit for the redemption of a mere charge and, apparently, that in default of any other article, such a suit would be governed by Article 144. For the plaintiff on the other hand, reference has been made to the decision of a Full Bench of the Allahabad High Court in the case of Ashfaq Ahmad v. Wazir Ali (1889) I.L.R. 14 All. 1, and to the decision of a Division Bench of the same Court in the case of Khiali Ram v. Taik Ram (1916) I.L.R. 38 All. 540. The view expressed in these cases appears to be that a suit of this nature comes with in Article 148 and may be brought within 60 years from the date when the original mortgage became redeemable. According to that view the present suit would no doubt be in time. With great respect however it appears to me that the view taken in the Bombay case is more consistent with the language of Sections 95 and 100 of the Transfer of Property Act, and the language of Article 148 of the Schedule of the Limitation Act. The Transfer of Property Act draws a clear distinction between a charge and a mortgage, and it is difficult to interpret the word 'mortgagee' in Article 148 as including a chargee. If Article 148 has no application, then this suit is prima facie out of time. It was certainly brought more than twelve years from the date when the charge came into existence, and more than twelve years from the date when Akbar Ali obtained exclusive possession.
5. It has been argued however for the plaintiff that in the Trial Court though the question of limitation was made the subject of one of the issues framed for the purposes of the trial, the learned Munsif stated that the point had not been pressed at the time of the argument. It is suggested that as the point turns partly on matter of fact, it cannot now be raised. The reason, however, why it was not pressed seems to be that in the Trial Court the parties dealt with the case on the footing that the legal position was such that the relevant article could only be Article 148. If the period of limitation be 60 years, then there is no room for argument on the point. If, however, as the Subordinate Judge held, the right to redeem must be referred to the charge instead of to the mortgage, the question of limitation assumes another aspect. The learned pleader for the plaintiff says that the learned Subordinate Judge made a case for the plaintiff which he had not made himself. But that is not so. The Subordinate Judge merely applied the law as he understood it, to the facts on which the plaintiff's claim was based. As the plaintiff's success now depends entirely on his right to redeem the charge, he can not take the advantage of that position without also accepting its disadvantages.
6. The question then remains whether Akbar Ali after he obtained possession of this taluk in the year 1892, i.e., 19 years before the present suit was brought, was in adverse possession of the land as against Kailash. The learned pleader says that by his purchase of the interests of Dhaniram and Gurudas he became a co-sharer or partner with Kailash in the mortgaged property. That is so, in a sense. But there is no suggestion that there was any particular connection between him and Kailash. They were not co-sharers in the ordinary sense of the word, and having regard to the title which the sale certificate purported to give him, and what subsequently happened, to the settlement which he obtained from the superior landlord, and to the entry in the record-of-rights, in my opinion, there is no room for the suggestion made, i.e., that the possession of Akbar Ali was as a co-sharer also the possession of Kailash. On the contrary, it was a possession exclusive of Kailash.
7. This litigation has lasted for a number of years and as the Courts below have not found on this issue--whether Akbar Ali's possession was or was not, adverse as against Kailash, it is open to us under Section 103 of the Code of Civil Procedure, to decide the issue ourselves. Speaking for myself, I have no doubt in the circumstances as to what the finding ought to be. In my opinion the suit is barred by limitation.
8. I should, therefore, allow the appeal and dismiss the suit. The plaintiff must pay the costs of the defendants Nos. 2 and 9 throughout.
9. I agree.