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Aimadar Mandal Vs. Makhan Lal Day - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal1015
AppellantAimadar Mandal
RespondentMakhan Lal Day
Cases ReferredPugh v. Heath
Excerpt:
possession - adverse possession--mortgagee--possession adverse to mortgagor not adverse to mortgagee; until ownership vests in him. - .....since been in possession. the question then is whether as against defendant no. 1 the plaintiff's suit for possession is barred by limitation.4. the lower appellate court held that defendant no. 1 was entitled to redeem the premises: that the plaintiffs claim was not barred and decreed accordingly. defendant no. 1 has appealed. the respondent has not appeared, and we have not had the advantage of hearing his case argued.5. the only question argued before us is, as i have said, the question of limitation. there is no decision precisely in point, although the privy council case, karan singh v. bakar ali khan (1882) i.l.r. 5 all. 1 has been cited, as also the case of ammu v. rama kishna sastri (1879) i.l.r. 2 mad 226. neither of these cases covers the point in issue. the contention of the.....
Judgment:

Francis William Maclean, K.C.I.E., C.J.

1. This is a suit for possession of certain land on. establishment of title. The only question is whether the suit is barred by limitation.

2. The material facts are as follows : By a mortgage made in 1880 in favour of the plaintiff, the lands in dispute were mortgaged to him to secure the principal sum of Rs. 450. The mortgagee some years afterwards instituted a suit to realize his security.

3. He obtained a decree, and on the 21st of January 1898, the property was sold under that decree and the mortgagee became the purchaser. On the l6th of June 1898, symbolical possession was delivered to him under his purchase. The present suit was instituted on the 9th of July 1900. It appears that the landlord of the property in dispute instituted a rent suit against the mortgagor and a decree was obtained in that suit. The property was sold on the 20th of April 1886, and the purchaser under that decree subsequently let the property in question to defendant No. 1 on the 18th of November 1886, who has since been in possession. The question then is whether as against defendant No. 1 the plaintiff's suit for possession is barred by limitation.

4. The Lower Appellate Court held that defendant No. 1 was entitled to redeem the premises: that the plaintiffs claim was not barred and decreed accordingly. Defendant No. 1 has appealed. The respondent has not appeared, and we have not had the advantage of hearing his case argued.

5. The only question argued before us is, as I have said, the question of limitation. There is no decision precisely in point, although the Privy Council case, Karan Singh v. Bakar Ali Khan (1882) I.L.R. 5 All. 1 has been cited, as also the case of Ammu v. Rama Kishna Sastri (1879) I.L.R. 2 Mad 226. Neither of these cases covers the point in issue. The contention of the appellant is that he does not claim through the mortgagor, but as lessee of the purchaser under the sale in the lent suit, and that from the date of that purchase the possession of the purchaser and of his lessee became adverse, both to the mortgagor and to the mortgagee. But can it be said that as against the mortgagee, the possession of defendant No. 1 could be treated as adverse, inasmuch as the mortgagee had no right to challenge that possession, until he became the purchaser in 1898. The point is not free from difficulty. The effect of the decree and the sale under it was to vest in the plaintiff for the first time, the ownership in and the beneficial title to the land. He had no such title previously; he only obtained that new title in 1898, and he is now seeking to recover possession of that, which only became his property in that year. The decree and sale gave the plaintiff a new right: and I think that the statute only began to run against him from the date of his acquisition of that right. This view - accords with that taken in the case of Pugh v. Heath (1882) 7 App. Cas. 235.

6. The appeal therefore must be dismissed.

Geidt, J.

7. I agree.


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