1. The facts which have given rise to the present appeal are briefly these: one Kinu mortgaged 13 bighas of land to Sheik Jamit and Sheikh Chhakori in usufructuary mortgage 1293 B.S for Rs. 120. There was a sub mortgage of this property to two persons Ananta and, Doyal in 1295 and Ananta and Doyal were put in possession of the property. Kinu sold 8 bighas out of 13 bighas to 'Ananta and Doyal in 1299 for Rs. 179 out of which Rs. 120 was paid to the mortgagee and the balance was taken by the mortgagor. Kinu had a sister Umeda by name and Umeda sold the disputed property, namely, 13 bighas to the plaintiff in 1327 B.S. On the strength of this purchase from Umeda the plaintiff brought the suit for declaration of his title to the property and for recovery of possession thereof. The plaintiff's claim was resisted on the allegations that there had been a sale of 8 bighas out of the 13 bighas to Ananta and Doyal and a subsequent sale of the remaining 5 bighas by an oral arrangement and that the defendants had purchased the entire 13 bighas in execution of a decree against Ananta and Doyal.
2. The Court of first instance dismissed the plaintiffs suit, There was an appeal by the plaintiff but it was unsuccessful. Against the decision of the Appellate Court the plaintiff came up to this Court confining, he wever, his claim only to 8 bighas and not to the whole 13 bighas of the property. And this Court by an order dated 3rd December, 1920, set aside the decree passed by the lower Appellate Court and remanded the appeal to the lower Appellate Court for disposal after a consideration of certain questions that were formulated and in the lights of certain observations that were made in this Court's judgment. The directions that were given in the order of remand were in these terms:
In the first place he (the Judge of the lower Appellate Court) will have to find whether in point of fact after the satisfaction of the mortgage-debt the 5 bighas of land which was not included in the kabala of 1893 came back to the possession of Kinu and thereafter Ananta and Doyal could not claim to be in possession of it.
3. If this question is found in the affirmative then it will not be necessary to go into other matters; and on a finding in the affirmative with regard to this point the learned Judge will be right in he lding that in that case the possession of Ananta and Doyal must have been either under the verbal sale or it was possession which was adverse to the mortgagor. If, he wever, the point is not decided in the affirmative then the learned Judge will have to find as a fact whether there was an oral sale in respect of the five bighas. If the question cannot be determined in the affirmative, then the question will arise as to whether the possession of Ananta and Doyal became adverse to that of Kinu and if so, at what point of time. It is not the law that simply because a mortgage-debt has been satisfied and the mortgagee continues in possession that the possession becomes adverse from the point of time of satisfaction of the mortgage debt. If any authority is needed for this proposition, reference may be made to the case Habibulla v. Abdul Hamid 13 Ind. Cas. 963 : 34 A. 261 : 9 A.L.J. 131. At p. 265 Page of 34 A. [Ed.] the learned Judge observed as follows:
The possession of a mortgagee does not become adverse to the mortgagor merely because the mortgagee remains in possession after the mortgage-money has been satisfied out of the usufruct or has been otherwise paid off, much more is required to get time running against the mortgagor. The question whether the possession of the mortgage after the mortgage-debt has been satisfied is adverse to the mortgagor or not is always a question of animus or intention of the parties concerned. The whole of the circumstances will have to be considered in order to find out whether the mortgagees in the present case continued in possession as owners in respect of the property.
4. The lower Appellate Court after the remand has come to clear findings: (1) that after the satisfaction of the mortgage-debt 5 bighas did not go back to the possession of Kinu; (2) that the verbal sale of 5 bighas was a myth and has not been proved. The learned Advocate for the appellant frankly admitted, that he could not go behind any of these two findings which were findings of fact. But his contention was that the lower Appellate Court was not justified in he lding that if Ananta and Doyal were in possession of the 5 bighas they were in possession as owners of the property and not as mortgagees and in support of this contention he placed a considerable amount of reliance on the case of Habibulla v. Abdul Hamid 13 Ind. Cas. 963 : 34 A. 261 : 9 A.L.J. 131. At p. 265. The facts of the present case are ver different from the facts of the Habibulla v. Abdul Hamid 13 Ind. Cas. 963 : 34 A. 261 : 9 A.L.J. 131. At p. 265 In the Habibulla v. Abdul Hamid 13 Ind. Cas. 963 : 34 A. 261 : 9 A.L.J. 131. At p. 265 the mortgagor, unless a regular accounting was held could not be in a position to know at what particular point of time the mortgage-debt had been satisfied. In the present case, he wever, the mortgage debt was satisfied not from the usufruct of the property but by actual cash payment made by the mortgagor from the consideration money which he obtained by a sale of b bighas of land to Ananta and Doyal. In the present case the mortgagor perfectly knew that the mortgage-debt was satisfied and he perfectly knew also at what particular point of time it was so satisfied. The learned Subordinate Judge, as his judgment will show, appears to have considered the circumstances of the case as also the intention of the parties and it was after a consideration of all these that he came to his finding that the possession of the Ananta and Doyal since 1299 was possession not as mortgagees but as owners of the property, and on that finding he held that that possession was adverse to the mortgagor Kinu. If the possession of Ananta and Doyal became adverse to Kinu in 1299 the title which Kinu had in the property could not but be held to have been extinguished long before the plaintiff's purchase in 1327 B.S.
The learned Advocate for the appellant contended that the entire interest which Umeda, the plaintiff's vendor, had in the property she had not inherited from Kinu. But if Ananta and Doyal were all along in possession of the property as owners thereof from the year 1299 B.S. their possession was adverse to Umeda as well and when Umeda sold the property to the plaintiff in 1327 she had no interest subsisting in it, her title to it independently of her title as heir of Kinu having been extinguished after 12 years from the date of the satisfaction of the mortgage-debt, namely, 1299 B.S. The result, therefore, is that the appeal is dismissed with costs. There was an application for leave to appeal under the Letters Patent. I do not consider the case to be fit one for such leave. The application is refused.