D.N. Mitter, J.
1. Sarala Devi Chowdhurani, the respondent, commenced on 17th March 1930 the suit in which this appeal arises in the Court of the Additional Subordinate Judge, 24 Parganas, for establishing her rights to the present possession of the house at 54 Ultadanga Main Road within the Municipal boundary of Calcutta. The suit purports to be one under the provisions of 0. 21, Rule 103, Civil P.C. That suit has been decreed by the Subordinate Judge. Hence the present appeal by the representative of the defendant to that suit, one Benode Behari Biswas, who died during the pendency of the suit.
2. The allegation on which the plaintiff founds her title to the said premises, 54 Ultadanga Main Road, may be briefly stated thus: The property in question was originally held by Surendra Nath Dutt, Purendra Nath Dutt and Gokil Chandra Dutt who were members of the firm of P.N. Dutt and Company which at one time carried on an extensive business. The said Dutts mortgaged the property in question to Dr. Bipin Behari Ghose, a well-known physician of Calcutta on 4th October 1920 taking a loan of Rs. 8,000 from the said doctor and hypothecating the said premises by a registered deed of mortgage in his favour. Dr. Bipin Behari Ghose, on receipt of proper consideration, assigned the said mortgage bond in favour of the plaintiff respondent Sarala Devi Chowdhurani. To the said deed of assignment the Dutts were made parties and by the said deed a further charge was created in respect of another property belonging to the Dutts, namely, 6 Kirty Mitter Lane which lies within the original jurisdiction of the High Court of Calcutta. The Dutts having failed to pay the dues on the mortgage security the plaintiff brought the suit on the original side of the Court, and obtained a preliminary mortgage decree against the Dutts on 3rd March 1924. The judgment-debtor not having paid the money within the period of grace, a final decree was passed in favour of the plaintiff, Sarala, on 14th December 1925. In execution of the said decree the plaintiff purchased the property at the Registrar's sale and thereafter obtained the sale certificate.
3. The plaintiff applied to be put in possession and proceeding was taken under the provisions of Order 21, Rule 95, Civil P.C. Then on 27th April 1927 Costello, J., in that proceeding for delivery of possession directed that the premises in question be delivered to the plaintiff under the provisions of Order 21, Rule 95, Civil P.C. And it was further ordered that certified copy of the order together with a copy of the sale certificate and a certificate from this Court that possession of the said property has not been obtained within the jurisdiction of this Court, be transmitted by the Registrar of this Court to the District Judge's Court of 24-Parganas for execution: see p. 102, para. II of the paper-book. The matter accordingly was sent to the Court of the Subordinate Judge who dealt with the proceeding taken under the provisions of Order 21, Rule 95, Civil P.C. After dealing with certain preliminary objections on the question of jurisdiction the Subordinate Judge of 24-Parganas came to the conclusion that although Benode, the husband of the appellant, could not establish his claim to the ownership of the building he (the learned Judge) was inclined to accept Surendra's version that it was the Dutts who paid for the construction of the building and that Benode came to occupy the house with the permission of the judgment-debtor. But the Subordinate Judge dismissed the application of the plaintiff to be given possession on the ground that there was a sort of contract or agreement in pursuance of which Benode paid Rs. 55 as the earnest money for the purchase of the property and he held that it cannot be said that there was no enforceable right on the part of Benode in the premises in question. He accordingly refused the application of the plaintiff. The result was that the present suit had to be instituted in accordance with the provisions of Order 21, Rule 103, Civil P.C., as has been already stated.
4. The plaintiff practically founds her title to the disputed premises on the judgment of the High Court in the mortgage suit commenced by her and she claimed to establish the right of possession in the property in question on the basis of the said judgment. Benode Behari Biswas who was the original defendant to the suit put in a written defence and several pleas were taken in the written statement filed by him. It is not necessary to refer to all the defences as the question in controversy in the present appeal really turns on two substantial defences which were taken to the suit. The first defence is that the decree passed by the original side of this Court on which the plaintiff founds her title was a decree without jurisdiction as the property to establish the claim of which the suit had been brought is admittedly situate outside the original jurisdiction of this Court and the other property, namely 6 Kirti Mitter Lane, which was included in the further charge mentioned in the deed of assignment in favour of the plaintiff was included in the said deed of assignment for the purpose of giving jurisdiction and not for the purpose of additional security. The second head of defence related to the question of adverse possession. It was stated in support of this defence that the Dutts in the year 1917 took a sum of Rs. 2,000 from the husband of the appellant Benode and agreed to sell the property in question to Benode for that sum and although no valid deed of transfer by way of sale was executed by the said Dutts, Benode, the original defendant, was allowed to continue in possession of the said land on which he afterwards constructed the said building at a cost of about Rs. 10,000 for more than the statutory period of 12 years. Both these defences were negatived by the Subordinate Judge of the Court below who decreed the plaintiff's suit.
5. In appeal by Biraj Mohini Dassi, the widow of the original defendant Benode and his legal representative, two questions really arise for determination. Although at the opening Mr. Hiralal Chakravarti raised a number of points it must be said in fairness to him that he did not press all of them but the two leading and substantial questions mentioned at the beginning, namely (1) the question of the jurisdiction of the High Court to pass the decree on the assignment of the mortgage security and (2) the question of adverse possession. It is contended on the question of jurisdiction that the original side had no jurisdiction to entertain the suit on the mortgage as the premises No. 54 Ultadanga Main Road was outside the jurisdiction of this Court, and premises No. 6 Kirti Mitter Lane, which was included in the deed of assignment, was included not as an additional security for the sum for which the assignment was made in favour of the plaintiff, but only for the purpose of giving jurisdiction. Reliance is placed in support of this position on the evidence of the plaintiff's solicitor, Mr. P.C. Kar to the effect following:
No. 6 Kirti Mitter Lane property as it was really not necessary as we were not relying on it as a part of the security but only for the purpose of jurisdiction.
6. But the said witness states further on that the Dutts joined in the transfer because of the additional security. It is contended that this was not intended to be an additional security at all, for this property premises No. 6 Kirti Mitter Lane had already been mortgaged with other properties for a sum of four lacs of rupees and this property was included in the further charge not for the purpose of security but for the purpose of giving jurisdiction to the registering officer to register the deed in Calcutta. In this connexion reliance has been placed on a recent decision of their Lordships of the Judicial Committee of the Privy Council in Venkata Rama Rao v. Sobhanadri Appa Rao . Their Lordships point out in that case that:
Registration in a certain registration district on the strength of a small property situated therein and included in the deed, is invalid when there is no real intention that such property should pass under the instrument, although when there is such intention, the motive that the property is included for the purpose of allowing of registration in the particular district may be immaterial.
7. Their Lordships also pointed out that:
The crucial test is the intention which is to be gathered from the nature of the property, the attendant circumstances and the use made or possible to be made.
8. There is no doubt that in one part of the evidence Mr. Kar, the solicitor, states that the property, No. 6 Kirti Mitter Lane, was included for the purpose of jurisdiction, but he states at the same time that the Dutts joined in the transfer because of the additional security in respect of No. 6 Kirti Mitter Lane property. This property was further charged for four lacs of rupees along with many other properties. But be that as it may, this question cannot now be taken for the purpose of raising the contention that the Original Side of the High Court had no jurisdiction to entertain the suit as the real intention was to mortgage only the property outside the jurisdiction of this Court, namely, the Ultadanga Main Road property. Leave was granted under Section 12, Letters Patent. The question of jurisdiction must have been judicially determined. It is now established on the authorities that the High Court has no jurisdiction to entertain a suit on mortgage if the only property included in the mortgage is property outside the original jurisdiction of the High Court; but if in the mortgage are included properties one of which is situated within the original jurisdiction of this Court leave under Section 12 might be granted. The High Court when granting the leave rightly or wrongly held that property No. 6 Kirti Mitter Lane, which was admittedly situated within the original jurisdiction, was intended to be included in the deed of assignment which also created a further charge. It is not open now in this suit, which is based on that decree, to the appellant to contend that the decree was without jurisdiction on that ground, for it is open to the Court to determine as to whether it has jurisdiction or not to entertain a suit or proceeding, and if there is a judicial determination, the judicial determination assuming jurisdiction cannot be collaterally attacked. That must be held to bind the other party. Besides it seems to us that it is no concern of the third party to raise the contention as to the real intention of the parties to the mortgage transaction, and thereby to impeach the validity of the mortgage deed. The point of jurisdiction must be decided against the appellant.
9. We now proceed to determine the other question which falls for determination, namely, the question of adverse possession. If the appellant could establish the case which she makes that it was in pursuance of the sale for Rs. 2,000 that her husband took possession of the property and continued upon it for more than 12 years then the case of adverse possession would undoubtedly be established although no valid deed of transfer had been executed. This view receives support from the decision of the Bombay High Court in Venkatesh Damodar v. Mallappa Bhimappa AIR 1922 Bom 9. The passage on which reliance has been placed is at p. 725 of the report. The proposition laid down is this:
Then there is a Pull Bench decision in Bapu Apaji v. Kashinath Sadaba AIR 1916 Bom 1 where it was decided that when the plaintiff being the owner of certain immovable property seeks to recover possession of that property and there are no facts operating to his prejudice, it is a valid defence to the suit that the plaintiff has agreed to sell the property to the defendant, the agreement being at the date of suit still capable of specific enforcement, but there being no registered conveyance passing the property to the defendant, who has taken possession under the agreement for sale, and is willing to perform his part of it with the plaintiff. That decision was based on the fiduciary aspect of the vendor's position and the impropriety of permitting him to succeed against his vendee in a suit for possession. That argument must also apply where the vendee in possession has allowed the time for filing a suit for specific performance to expire. In this case therefore the defendant is entitled to remain in possession against the plaintiff. He will not be able to sue the plaintiff for a sale deed, and so will have to remain in possession for 12 years before he can acquire a good title, but in the light of our decision the plaintiff might now be well advised if he passed the sale deed.
10. The passage which is relied on in particular is to be found in the concluding words, namely:
He will not be able to sue the plaintiff for a sale deed and so will have to remain in possession for 12 years before he can acquire a good title.
11. In other words it is said that if in pursuance of the sale the defendant is actually put in possession, and a case of continued possession for more than 12 years is made since then, the defendant's plea of adverse possession must succeed. Mr. Bose who appears for the respondent has not contested this position in law. The crucial question therefore to decide is as to whether on the evidence the defendant on whom the burden of establishing adverse possession lies has proved to the satisfaction of the Court that the entry of the appellant's husband was in pursuance of the sale of the land on which the premises in question stand for Rs. 10,000. There is an admission that a sum of Rs. 2,000 was paid to the Dutts by the husband of the defendant. The case of the defendant-appellant is that this was really a sum which was paid as the purchase money for the land on which the premises in question stand. On the other hand the case made by the plaintiff is that the sum of Rs. 2,000 was really given by Benode to the Dutts for the purpose of investment in certain shares in the Pottery Limited concern. We have to decide now as to which of these conflicting statements is right. No books have been produced on behalf of the appellant to show that this sum was really advanced as the price of the land. On the other hand there are entries in the books of the Dutts which have been believed by the Subordinate Judge and which would go to show that this sum of Rs. 2,000 was invested in the pottery business, although it is true that the mortgage was made six years after the date when this payment was made. There are documents of unimpeachable character which would go to show that even after 1917, when the sum of Rs. 2,000 was paid by Benode, Burendra Nath Dutt was exercising right of ownership of the disputed land. It appears from Ex. 18 that on 30th June 1917 Surendra applied for sanction of a plan for a building at premises No. 54 Ultadanga Main Road to the Municipality: seep. 41, part 2, of the paper-book. This is a very significant circumstance, for, if the story of the appellant be true that Rs. 2,000 were paid for the purchase of land it would not seem reasonable that the Dutts should concern themselves with applying for the sanction of a plan for a building on the land which is nOW claimed by the appellant as belonging to her husband.
12. The story that there was an agreement to sell is negatived by this documentary evidence as well as by a later document where a sanction is given to the plan: see Ex. 6 printed at p. 44 of the second part of the paper-book. It appears further that even much later, on 4th October 1917, it was Surendra who was applying for permission for construction of a six feet masonry culvert in front of 54 Ultadanga Main Road as per sanctioned plan enclosed with his application. The strongest documentary evidence which has been relied upon on behalf of the appellant is a letter written by the Dutts in 1926 which has been marked as Ex. B in the suit. This no doubt contains an admission which is very damaging to the case of the plaintiff, and unless this admission is explained it would be difficult to hold that a case of adverse possession can be made out. The letter is to be found printed at p. Ill of the second part of the paper-book. It is necessary to reproduce the letter in extenso as this letter was read to us several times by the learned advocates. Surendra Nath was writing to Benode thus:
My dear Benode Babu:
The party with, whom your house 54 Ultadanga Main Road was mortgaged has obtained a decree. They will send a surveyor, Mr. M.N. Mukherjee, to your house tomorrow morning at 8 a. m. Please let him survey the house. You should not be anxious for it. We will have 3 months'(three months) time, by which time we shall be able to clear the mortgage and decree. Our financial arrangement will very likely be completed by this week. Then we will have easy fund to clear the mortgage. Please do not be anxious at all. God will help us.
13. Stress has been laid and justly on behalf of the appellant, on the expression 'your house' used in this letter from which it is argued that it is quite clear if read literally S.N. Dutt was acknowledging that the house at 54, Ultadanga Main Road was a house which belonged to Benode. But this is not a construction which must be taken to be the true one and Surendra Nath Dutt has given the explanation that the words 'your house' are really meant to convey the idea of the house which you i. e. (Benode) was temporarily occupying. Surendra who has been admitted by both sides to be a very honest person states this on being re-called and re-sworn on the plaintiff's petition: 'By 'your house' in Ex. B, I meant the house at present occupied by you temporarily ': see p. 56, lines 22 and 23. The learned Subordinate Judge has accepted the explanation, and having regard to the fact that he is a gentleman carrying on an extensive business and to the fact that for sometime he was a man of considerable affluence and is regarded by the witnesses on both sides to be a very honest person, we do not see any reason to disregard the explanation which he gave. This fits in with the explanation given with regard to other facts. With regard to the costs of construction of this building books have been produced on behalf of the plaintiff. The books which belong to the firm of the Dutts show that a sum of Rs. 11,500 was spent for the purpose of the building of the disputed premises. It is unfortunate that Benode died during the pendency of the suit in which this appeal arises. But we have a summary of what he has stated in the proceedings under Order 21, Rule 97, Civil P. C, which was before the Subordinate Judge at Alipore and which has been printed in the supplementary paper-book at pp. 4 to 6. It appears that Benode also raised the same contention which has been raised now that he was the owner of the land and the building was constructed with Benode's money. It appears from the evidence given in that suit on behalf of Benode that it was Benode who used to take the masons and labourers to work on the building to the office of Messrs. P.N. Dutt and Company. The Subordinate Judge draws a legitimate inference from this and remarks:
If the building was constructed with Benode's money, why did he take the witness to the office of P.N. Dutt and Co. to have the bills of the labourers checked.
14. The Subordinate Judge who dealt with the matter under Order 21, Rule 97, Civil P.C., did not believe the statement of Benode as to the question of ownership, and it seems to us that he decided in favour of the present plaintiff on the view which he took that there was a subsequent agreement to sell in pursuance of which Rs, 55 were paid as earnest money. The learned Judge says:
But the fact remains that Benode paid Rs. 55 as earnest money in pursuance of a contract to purchase the property, and on the evidence available in this case it cannot be said that there is no enforceable right on the part of Benode not extinguished by lapse of time.
15. For these reasons, we are of opinion that the plaintiff has by production of books established the case that the defence set up by Benode is not a true defence. It is conceded that if this case of sale was not made out the case of adverse possession must fail. The case on the other hand of Surendra Nath Dutt is that Benode's possession is attributable to the permission given by the Dutts to him to stay in the said building. For this purpose some admitted circumstances must be referred to. Benode had half share in the acid business in which the Dutts were also interested to the extent of the other half. They were on very good terms at the time and as Surendra Nath Dutt states that it was by reason of Benode being a partner of the acid business that he was allowed to stay in the premises in question. This was the case which was set up before the Subordinate Judge. This also was the case made in the evidence of Surendra Nath Dutt before the Subordinate Judge. The case of the Dutts is: Surendra Nath 'Dutt, who was the Receiver in respect of this property, obtained an order from the High Court for the sale of 54 Ultadanga Main Road. Benode offered to purchase the property and deposited some money, but the transaction did not materialise. With regard to non-payment of rent the witness says that he did not realise rent for 54 Ultadanga Main Road. He demanded the rent from Benode but did not get it. Having regard to all these circumstances we do not think that we should be justified in coming to a conclusion different from what the Subordinate Judge has arrived at. This ground must also fail. The result is that this appeal must be dismissed. The question of costs remains to be determined. It appears that all these difficulties in this litigation could have been avoided if Mr. P.C. Kar had taken a little further care in the matter when he did not find Benode who, he was told, was in possession of 54 Ultadanga Main Road at the time when he made his first investigation into the title of the property in transaction between the plaintiff and Dr. Bepin Behary Ghose. The Subordinate Judge has referred to this circumstance. The learned Judge says that:
The title deeds which were in the possession of the Dutts were made over to Mr. Kar and he only went to inspect the mortgaged property evidently to verify its existence and condition as also what it was worth. He went round for the purpose of inspection and was satisfied. He did not meet Benode nor did he care to meet him evidently as the title deeds were in his own possession. Of course it should have been prudent and surely better if Mr. Kar had seen Benode and ascertained personally how and why Benode was occupying, but this omission does not affect plaintiff's title.
16. This is a matter which must be taken into account in determining the question of costs and we think that, although the appeal has been dismissed, the appellant must be relieved from the payment of costs of this appeal. The appeal is accordingly dismissed without costs.
17. I agree.