P.N. Mitra, J.
1. This is an appeal on behalf of the plaintiff under Clause 15, Letters Patent from a judgment of Blank J. in a suit for declaration of title to and recovery of khas possession of certain lands. The trial Court decreed the suit, but on appeal the learned Subordinate Judge, 2nd Court, Howrah, modified that decree by dismissing the plaintiff's claim for khas possession and giving him only a declaration of his title to the landlord's interest in the suit lands. Our learned brother has affirmed that decision of the lower appellate Court.
2. The suit lands are C. S. Dag No. 2684, which is a tank, and C. S. Dag. No. 2683, which an adjoining garden. These plots formed part of a maurashi mokarari jama which belonged to one Harish Chandra Mondal. Harish executed a simple mortgage in respect of this jama in favour of the plaintiff. It was stated to us by the learned advocate for the appellant that this mortgage was made in 1921. In 1928, the plaintiff brought a suit upon this mortgage, being Title suit No. 83 of 1928, and obtained a decree. In execution of that decree he purchased the mortgaged property on 14th April 1931 and 9th September 1931 he took delivery of possession through Court.
3. In the plaint the plaintiff made the case that since obtaining delivery of possession through Court he remained in khas possession until the defendants-dispossessed him on 20th Falgoon 1344 B. S. corresponding to 4th March 1938 on the allegation that they had a tenancy right in the suit lands. Plaintiff averred that the defendants never had any tenancy right in the lands and Harish had all along been in khas possession. Upon these averments the plaintiff brought his suit on 18th September 1940 for declaration of his title by auction purchase and for khas possession.
4. The defendants filed their written statement on 12th December 1940. They put the plaintiff to proof of his title to the suit land, and they pleaded that they had a tenancy right in the suit lands under Harish since more than 50 years ago from the time of their grand father and the plaintiff's case of khas possession and dispossession in Falgoon 1344 was a false story. They said they had all along been in possession. They also pleaded limitation.
5. It appears that on 7th August 1941, an application supported by an affidavit was filed on behalf of the plaintiff praying that certain records might be called for. In this application it was stated that Harish had got an ejectment decree in Title suit No. 144 of 1928 in the 3rd Munsif's Court at Howrah against the predecessors-in-interest of the defendants and had taken possession of the property in suit through Court and thereby all right, title and interest of the defendants' predecessors in property in suit had been extinguished. These allegations were materially divergent from the averments in the plaint, but no application was made for amendment of the plaint, which was allowed to remain as it was.
6. The suit came on for trial on 13th August 1942. The learned Munsif allowed the plaintiff to put in evidence the decree for ejectment obtained by Harish in Title suit No. 144 of 1928 against the predecessors-in-interest of the defendants and the peon's return to the writ of possession showing delivery of possession to Harish on 18th September 1928. The decree was an ex parte one and was dated 31st May 1928. The defendants' objection to the reception of this evidence was overruled by the learned Munsif with the observation that the defendants had notice of the plaintiff's application of 7th August 1941, but they had not filed any additional written statement or counter-affidavit challenging the facts set out in the plaintiff's application. Upon this evidence supplemented by a little oral evidence the learned Munsif came to the conclusion that although the plaintiff's case that Harish had been in khas possession all along was untrue, the defendants' tenancy had been put an end to by this ejectment decree and Harish had obtained khas possession in execution of it. With regard to the plaintiff's allegation of dispossession in Falgun 1344, the learned Munsif does not appear to have come to any finding, but he held that the suit was not barred by limitation as the plaintiff had proved that he had taken possession on 9th September 1931. As he also found title in favour of the plaintiff, he gave the plaintiff a decree for declaration of title and khas possession.
7. On appeal by the defendants, the learned Subordinate Judge took the view that the course that had been adopted at the trial of allowing the plaintiff to adduce in evidence the ex parte ejectment decree and the peon's return to the writ of possession without any amendment of the plaint had been unfair to the defendants and had caused them prejudice. He observed that 'unless the plaint had been amended the defendants were not required to plead that the decree was a fraudulent one or that in spite of the decree the defendants have acquired a limited right of tenancy by adverse possession for more than twelve years.'
He remarked that he
'had a mind to send the case back on remand for an amendment of the plaint as well as to allow the defendants opportunity to file additional written statement and for framing additional issues,'
but he said that this course was not 'necessary in view of the fact that the plaintiff's claim for khas possession is barred by limitation'. Differing from the learned Munsif, he held that Harish had only taken symbolical possession and had never taken actual possession, and he also disbelieved the plaintiff's case of khas possession after his purchase. His finding was that the defendants had been in actual possession all along. He held the plaintiff's claim for khas possession to be barred by time, because the cause of action, he said, had arisen on 13th September 1928 when Harish obtained delivery of possession through the Court and the plaintiff had failed to prove his possession within twelve years of the accrual of the cause of action, but he did not indicate which Article of the Limitation Act he thought to be applicable. He accordingly gave the plaintiff only a declaration of his title to the landlord's interest in the suit lands and dismissed the claim for khas possession.
8. On second appeal Blank J, disagreed with the view that any prejudice had been caused to the defendants by the course adopted at the trial, but he concurred in the view of the lower appellate Court upon the question of limitation and affirmed the decree which had been made by it.
9. The view taken by Blank J. and by the lower appellate Court on the question of limitation has been assailed before us by the plaintiff appellant. That question baa to be dealt with on the basis of the case that the defendants' tenancy under Harish was put an end to by the ejectment decree obtained by him against them and on the findings of fact arrived at by the lower appellate Court that the possession through the Court which Harish obtained on 13th September 1928 and which the plaintiff obtained on 9th September 1931 was only symbolical possession and actual possession remained with the defendants all along. Delivery of sbymolical possession operates in law as a transfer of possession from the judgment-debtor to the decree-holder: Jugobundhu v. Ram Chunder, 5 Cal. 584 : (5 C. L. R 548 F. B.); Joggobandhu v. Purnanund, 16 Cal. 530 (F.B.) and Radha Krishna v. Ram Bahadur, 22 C. W. N. 330: (A. I. B. (4) 1917 P. C. 197). And this is so even where the judgment-debtor is in direct possession and not in possession through tenants; Hari Mohan v. Baburali, 24 Cal. 715. The contrary view taken by the Bombay High Court in Mahadeo v. Janu, 36 Bom. 373 . (14 I. C. 447 F. B.) has not been accepted in our Court: Bhulu Beg v. Jatindra Nath, 27 C. W. N. 24:(A. I. R. (10) 1923 Cal. 138). Harish, therefore, must be taken to have obtained possession on 13th September 1928 when he was given symbolical possession as against the defendants' predecessors. As, however, they kept him out of possession from the next day, their possession became adverse to him from that day, and limitation would begin to run against him from that date in respect of any suit for possession that he might afterwards bring against them. It was held by Banerjee J. in Hari Mohan's case (24 Cal. 715), that such a suit would be governed by Article 144. It is unnecessary to consider whether Article 142 would not be more appropriate in the view that Harish must be taken to have been dispossessed on the day after the delivery of possession to him, as the date of the dispossession for the purpose of Article 142 and the date when the possession of the defendants became adverse to him would be the same so far as Harish was concerned.
10. But the position of the plaintiff was entirely different from that of Harish. There could be no question of the plaintiff being dispossessed, as he was not in possession. Nor can it be said that the possession of the defendants' predecessors became adverse to him at the time when it became adverse to Harish. It is now well settled that the possession of a person who has dispossessed the mortgagor of a simple mortgage subsequently to the date of the mortgage is not adverse to the simple mortgagee; See Aimadar Mondal v. Makhan Lal, 33 Cal. 1015: (10 C. W. N. 904); Priya Sakhi v. Manbodh Bibi, 44 Cal. 425 : (A. I. R. (5) 1918 Cal. 933) and Vyapuri v. Sonamma, 39 Mad 811: (A. I. R. (3) 1916 Mad. 990 F. B ). The principles which govern the matter have been fully discussed in the judgments of Sanderson C. J. and Mookerjee J. in Priya Sakhi v. Manbodh Bibi, 44 Cal. 425 : (A. I. R. (5) 1918 Cal. 938), which reversed a judgment of Fletcher J. taking the contrary view. As Sanderson C. J. observed in that case 'the term 'adverse possession' implies that the person against whom adverse possession is exercised, is a person who is entitled to demand possession at the moment adverse possession begins.'
As a simple mortgagee the plaintiff had no right to demand possession at the time when the adverse possession of the defendants' predecessors against Harish started. He became entitled to possession only when he purchased the mortgaged property in execution of his mortgage decree on 14th April 1931, and the defendants' possession became adverse to him only from that date.
11. In this view Article 144 would be the Article applicable to the plaintiff's suit for khas possession against the defendants and the suit would be in time, but the defendants have contended before us that the suit is governed by Article 137, as this is a suit for possession of immoveable property by a purchaser at a sale in execution of a decree when the judgment-debtor is out of possession at the date of the sale. Under that Article limitation runs from the time when the judgment-debtor is first entitled to possession. As Harish, it was contended, became entitled to recover possession from the defendants' predecessors at least on 14th September 1928, which was the day after he took symbolical possession, the suit brought on 18th September 1940 must be held to be out of time.
12. The consequence of acceptance of this argument, it will be seen, will be to nullify the proposition that adverse possession against the mortgagor cannot be adverse to the mortgagee in a simple mortgage. While we have held that the possession of the defendants' predecessors did not become adverse to the plaintiff when it became adverse to Harish on 14th September 1928, we shall if we accede to this contention, be in effect upholding the contrary position that the adverse possession of the defendants' predecessors against Harish affected the plaintiff as well, for according to this Contention limitation would begin to run against the plaintiff from the time when Harish became entitled to possession and that is the time when the possession of the defendants' predecessors became adverse to Harish. We do not think that the language of Article 137 compels us to adopt a view which would lead to such a result. When the Article speaks of a suit for possession by an auction purchaser when the judgment-debtor was out of possession at the date of the sale and makes limitation run from the time when the judgment-debtor becomes entitled to possession, it appears to us to contemplate an auction purchaser who has by his purchase acquired just the interest which the judgment-debtor had in the property at the date of the sale and no higher, and who stands in precisely the same position as the judgment-debtor did in relation to third parties in respect of that property. The purchaser at a sale in execution of a mortgage decree, however, becomes clothed not merely with the equity of redemption but also the mortgagee's interest in the mortgaged property. In our opinion, therefore, Article 137 cannot apply to such a purchaser. This was also the view Which was taken of the article in Sundaram v. Thiyagaraja, 50 M.L.J. 183': (A. I. R. (10) 1923 Mad. 160).
13. Article 137, therefore, is not attracted to the plaintiff's suit. Article 142 cannot apply as the plaintiff was never in possession, and no other article has been suggested as being applicable. Our conclusion, therefore, is that the suit is governed by Article 144, and as it was brought within twelve years of the time when the defendants' possession became adverse to the plaintiff, it is not barred by time.
14. Oar decision on the question of limitation, however, does not dispose of the case finally. The learned Subordinate Judge, as noticed before, stated in his judgment that but for the view which he was taking on the question of limitation he could have remanded the case to the trial Court for amendment of the plaint and for the filing of additional written statement and the framing of additional issues, and the defendants respondents urged before us that if we held against them on the question of limitation, as we have now done, they should be given an opportunity properly to contest the new case made by the plaintiff at the trial. We think that the defendants have legitimate ground for complaint against the manner in which this matter was dealt with in the trial Court. They could not anticipate that the application filed by the plaintiff for calling for certain records would be treated as having amended the plaint, and we do not agree with the learned Munsif that the filing of the application cast a duty upon the defendants to file an additional written statement. The learned Munsif seems to have thought that it was a question merely of the factum of a decree and a proceeding for delivery of possession. But the case the defendants apparently wanted to make when they were confronted at the trial with the ex parte decree and the peon's return was that the entire proceedings were vitiated by fraud as they laid some evidence to the effect that no summons in the suit bad been served and no delivery of possession bad actually been made in the locality. It is not surprising that this aspect of the matter was not at all considered by the learned Munsif, as there were before him neither pleadings nor issues bearing upon it. As the application of 7th August 1941 was in fact treated by the trial Court as having amended the plaint and the plaintiff was permitted to lead evidence in support of the case made in it, we consider it unnecessary to direct that the plaintiff should be, asked formally to amend his plaint. But it is necessary in the interests of justice that the defendants should have an opportunity to meet the new case.
15. We accordingly remand the case to the Court of first instance and direct that leave be given to the defendants to file an additional written statement within a time to be fixed by the Court, and that any additional issue or issues that may arise on that written statement be framed thereafter and the parties be allowed to adduce such further evidence as they may be advised on the new issue or issues. The question of plaintiff's title to the suit lands by his auction purchase at the mortgage sale and the question of limitation have been finally decided and are not to be re-opened. We may also observe that no case has hitherto been made by the plaintiff that the defendants' tenancy came into existence subsequently to his mortgage and he is not to be allowed to make such a case. If the Court comes to the conclusion that the defendants have a subsisting tenancy right in the suit lands, the plaintiff's suit for khas possession will be dismissed and he will only get a decree declaring his title to the landlord's interest therein. If, on the other hand, the Court comes to the conclusion that the defendants have no subsisting tenancy right in the suit lands, it will give the plaintiff a decree for khas possession as well as for declaration of title.
16. We direct that the pasties will bear their own costs up to this Letters Patent appeal. Future costs will be in the discretion of the Court dealing with the case.
R.P. Mookerjee, J.