1. This is an appeal by the plaintiff for declaration of title to land and for recovery of possession thereof. The property in dispute admittedly belonged to a family of Jhas, now represented by the defendants second party. In 1881 the Jhas mortgaged the property to Manoji Narain Singh, the predecessor-in-interest of the first party defendant. The mortgagee sued in due course, obtained a decree, and at the sale which followed thereon purchased the mortgaged property on the 27th July 1891. The saje was confirmed on the 26th September 1891. There was some delay in the issue of the certificate of sale, which was not granted till the 26th April 1892. Symbolical possession was thereafter delivered to the purchaser on the 4th February 1894. Meanwhile, on the 28th March 1892 the purchaser included the property in a mortgage executed by him in favour of one Barhamdeo Prosad, now represented by the plaintiff. A decree was obtained on this mortgage on the 29th April 1897 and at the execution sale which followed, the decree-holder became the purchaser on the 10th May 1904. The sale was confirmed on the 19th December 1904 and symbolical possession was thereafter delivered to the purchaser on the 18th January 1905. The plaintiff was, however, unable to obtain actual possession, and consequently instituted this suit on the 27th August 1909. His claim was resisted by some of the defendants, who claimed to have acquired the right, title and interest of the Jhas by various transactions subsequent to the mortgage of 1881. Their defence was substantially two fold namely, first, that the mortgage of 1881 which is the root of the title of the plaintiff was a fictitious transaction and, secondly, that the suit was barred by limitation. The Courts below have concurrently found in favour of the defendants upon each of these points and have dismissed the suit. On the present appeal the decision of the District Judge on both the points has been questioned as contrary to law.
2. As regards the first ground of defence, it is plain that the defendants, who have derived title from the Jhas subsequent to the mortgage of 1881, cannot be permitted to impeach the genuineness of that transaction to the detriment of a bona fide purchaser for value without notice. It may be conceded that as between the mortgagors and the mortgagee of 1881, the former could show against the latter, so long as the rights of no third party intervened, the fictitious nature of the transaction; but they cannot be allowed to do so when an innocent stranger has in good faith acquired a title for value on the faith of the reality of the mortgage. This position is amply supported by the decisions in Ram Charan Das v.Joy Ram Majhi 16 Ind. Cas. 825 : 17 C.W.N. 10 : 16 C. L.J. 185 at p.190, Radha Madhab Paikara v. Kalpataru Roy 16 Ind. Cas. 811 : 17 C.L.J. 209 and Akhil Prodhau v. Manmatha Nath Kar 22 Ind. Cas. 86 : 18 C.L.J. 616. To the same effect is the decision in Gresham Life Assurance Society v. Crowther (1914) 2 ch. 219 : 83 L.J. Ch. 867. The situation here is, in fact, stronger than even a case where the true owner has placed an ostensible transferee in a position to mislead a bona fide purchaser for value without notice of the secret title; the mortgage, the suit thereon, the execution sale, and the delivery of possession through Court, constitute an elaborate network of devices sufficient to induce the belief that the title of the Jhas has vested in Monoji Narain Singh. Consequently the rule applies by which a bona fide transferee for value from an ostensible owner is allowed to protect himself against a claim by the real owner. Ram Coomar v. John and Maria Mcqueen 11 B.L.R.46 : 18 W.R.166 : I.A.Supp.Vol.40; Mahomed Mozuffer Hossein v. Kishore Mohun Roy 22 C. 909 : 22 I.A. 129; Sarat Chunder Dey v. Gopal chunder 20 C. 296 : 19 I.A. 203; Varden Seth Sam v. Luckpathy Royjee 9 M.I.A. 303; Marsh. 461 : 1 Suth. P.C.J. 480 : I Sar. P.C.J. 857 : 19 E.R. 756; Colonial Bank v. cady 15 A.C. 267 : 60 L.J. Ch. 131 : 63 L.T. 27 : 39 W.R. 17 and Cairn crost v. Lorimer 3 Mcq. H.L. 827 : 7 Jur. (N. s.) 149 : 3 L.T. 130 : 123 R.R. 906. We must, consequently, hold that the title of the plaintiff is not impeachable at the instance of the defendants as the representatives of the original proprietors.
3. As regards the second ground of defence, it is plain that Article 137 of the first Schedule of the Indian Limitation Act, 1908, governs the case. That Article provides that a suit by a purchaser at a sale in execution of a decree for possession of immoveable property, when the judgment-debtor was out of possession at the date of the sale, must be instituted within twelve years from the date when the judgment-debtor is first entitled to possession. The Courts below have concurrently found that notwithstanding the delivery of symbolical possession to Monoji Narain Singh on the 4th February 1894, the Jhas continued in possession, and they were in possession even when symbolical possession was delivered to the predecessor of the plaintiff on the 18th January 1905. This latter delivery of possession was operative as against the then judgment-debtor, namely, Monoji Narain Singh, but was wholly ineffectual to affect the title or interrupt the actual possession of the Jhas. Juggobundhu Mukerjee v. Ram Chunder Bysak. 5 C. 584 : 5 C.L.R. 548 : 3 Shome L.R. 68 and Joggobundhu Mitter' v. Purnanund Gossami 16 C. 530. The plaintiff was subsequently bound to sue within twelve years from the date when his judgment-debtor, Monoji Narain Sitigh, was first entitled to possession, i.e., within twelve years from the 4th February 1894 when symbolical possession was delivered to Monoji Narain Singh as against the Jhas. The plea of limitation would have been of no avail if the suit had been instituted on or before the 4th February 1906. The inference follows that the suit, instituted as it was, on the 27th August 1909, is barred by limitation under Article 137. In this view it is needless to consider a question of considerable nicety which was argued at the Bar and which has led to considerable divergence of judicial opinions, namely, whether possession adverse to the mortgagor also operates to the prejudice of the mortgagee, and, if so under what circumstances and subject to what qualifications.
4. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs.