1. The point for decision in this appeal is one of limitation, which has been decided by the lower appellate Court adversely to the plaintiff' appellant before us.
2. Baboo Bash Behari Ghose, in opening the appeal, complained that, in thus deciding, the District Judge had held that the plaintiff's possession of the property in dispute had bean adverse to himself, that possession having ceased only a few days before the present suit was instituted.
3. This apparent anomaly is, however, explained by the fact that plaintiff's possession was held to be that of a mortgagee only, whereas in this suit he claims to establish his title as owner by purchase of an undivided one-third share of the mortgaged property. It was contended on his behalf that his possession, quoad that share, had been that of owner, and not that of mortgagee, from the date of the conveyance under which he claims, viz., the 29th Aughran 1282. It was alternatively contended that plaintiff's vendor should be held to have been in possession at that date, and that inasmuch as this suit was instituted within 12 years thereof it is not barred.
4. The question really depends upon whether the plaintiff's vendor, Jugadamba Dabia, was in possession actually or constructively at the time of the conveyance.
5. That she was in actual possession of the property is not pretended. All that is contended is that the possession of plaintiff's mortgagor was not adverse to her and that the mortgage did not prejudice her. The mortgagor was one Krishna Mohun Ganguli, and the mortgage (usufructuary) was executed in 1273, about 20 years before the institution of this suit. At that time Krishna Mohun's two brothers, who had formed a joint family with him, were dead ; but their two widows, one of whom was plaintiff's vendor, Jugadamba, are said to have been still in commensality with him and to have had the rights of Hindu widows in their deceased husband's undivided shares in the joint family property. Be that as it may, it is certain that the mortgage deed in favor of the plaintiff dealt with the whole 16 annas of the property in question, and recited that it was the self-acquired property of Krishna Mohun ; and the two widows signed the deed as attesting witnesses.
6. It appears, however, from the lower appellate Court's judgment that, subject to the plea of limitation, it was there admitted that Jugadamba was entitled to a one-third share.
7. After Krishna Mohun's death the plaintiff in 1275 obtained a simple mortgage of the same property from the heirs, who afterwards sold the equity of redemption to the defendant No. 1 in this suit. With this last mortgage Jugadamba and the other widow had nothing to do either as principals or witnesses. This one was paid off by the purchaser; and he subsequently in 1879 brought a suit against plaintiff for redemption of the mortgage of 1273. Plaintiff, having in the meantime obtained from Jugadamba a conveyance of her supposed one-third share, pleaded that purchase as a reason why he should not be required to give up the whole property upon the mortgage being paid off.
8. This Court in a second appeal held that he could not be beard in support of that plea, but must give up the whole mortgaged property and take what steps he chose to establish his proprietary right if any. Hence the present suit was brought.
9. As regards the plea of limitation we think that the plaintiff cannot defeat it merely by his possession as mortgagee down to the time immediately preceding the institution of the suit. He must show that he acquired possession as purchaser of the share before the title derived from his vendor had become extinguished. Baboo Rash Behari Ghose contended that, upon his purchase, ipso facto, the character of the possession changed, and that he remained mortgagee as to two-thirds only and became owner as to one-third. But the redemption suit showed that he was still mortgagee of the whole, and he was compelled to give up the whole. It is not pretended that after his purchase he separately appropriated the profits of one-third of the property, and that the profits of two-thirds only were thence-forth devoted to the liquidation of the mortgage-debt. If, as pointed out by the learned Counsel for the respondent, his vendor was not in possession when she executed the conveyance, she did not by that act either get possession herself or impart it to him. All that he then acquired was the right to get into possession, which right he had to enforce before it became extinguished by lapse of time.
10. The lower appellate Court found that plaintiff's vendor had been out of possession at least from the year 1273. so that the plaintiff, purchasing her right in 1282, would have to bring his suit within three years more. He did not do so until after the lapse of about ten years. Upon the Judge's finding therefore it seems clear that he is barred. It was argued that the Judge was wrong in law in finding that Jugadamba was ousted from possession by the mortgage of 1273 inasmuch as she was a widow living in joint family with the mortgagor. In that state of circumstances it might, doubtless, be held that the granting of the mortgage by the kurta would not prejudice her rights. But it is found by the Judge that the mortgagor did not act as kurta, but that he distinctly set up his own exclusive right, one adverse to Jugadamba, and with her express knowledge of it and assent. No rent was reserved in the mortgage lease, so there was no actual possession enjoyed by the mortgagor after the date of the deed. We think that upon the evidence the lower appellate Court could legally hold that Jugadamba was dispossessed in 1273 and that she never had any possession afterwards. Her title may still have been alive in 1282, the time of plaintiff's purchase, but it had become extinguished several years before this suit was brought.
11. The appeal is therefore dismissed with costs.