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Sukra Oraon And Another v. Jagat Mohan Singh And Others

Patna High Court

Jan 29, 1957

Judgment

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Judicial Opinion — Structured Summary

Factual and Procedural Background

The plaintiffs sued for redemption of two plots (nos. 387 and 388, khata No. 3) which they alleged had been given in "zarpeshgi" by defendants 4 and 5 to Khatia Orain and her daughter Musammat Mangri Orain by a document dated 23 January 1932 (30 Pus 1988 Sambat). The consideration recorded was Rs. 152/-. Possession was allegedly entered in the revenue survey khatian. Khatia Orain and Mangri Orain later died; their heirs included Sato Oraon (defendant No.1) and a minor Somra Oraon (defendant No.2). On 16 June 1947 Sato Oraon executed a registered sale of the disputed plots to Mangra Oraon (father of defendants 3 to 3(b)). The plaintiffs also alleged that on 19 November 1938 the Deogharias gave the entire village in zarpeshgi to the plaintiffs by registered bond for Rs. 2,097 and on 15 June 1942 sold the entire village to the plaintiffs.

Procedurally, the trial Court (learned Munsif) held that plaintiffs could not obtain a decree for redemption but were entitled only to rent; the Munsif dismissed the suit. The lower appellate Court reversed that decree, found that Sato and the transferees were in possession as mortgagees (zarpeshgidars) and not as occupancy raiyats, and granted a decree for redemption in favour of the plaintiffs. The present appeal was preferred by the heirs of defendant No.3 challenging that reversal.

Legal Issues Presented

Whether the unregistered zarpeshgi (dated 23-1-1932) amounted to a valid mortgage/transfer such that the plaintiffs could maintain a suit for redemption, given the requirements of Section 59 of the Transfer of Property Act.
Whether, irrespective of the legal validity of the 1932 zarpeshgi, continuous possession by the defendants as mortgagees from 1932 to 1949 gave them, by prescription (adverse possession), the status and rights of mortgagees such as to defeat the plaintiffs' claim for redemption.
Whether the defendants (Sato and later transferees 3 to 3(b)) were in possession as occupancy raiyats (tenants with right of occupancy) or as mortgagees (zarpeshgidars), a factual question bearing on entitlement to redemption or rent.

Arguments of the Parties

Appellants (heirs of defendant No. 3) — Principal Arguments

The zarpeshgi deed dated 23-1-1932 was not a registered document and therefore did not comply with Section 59 of the Transfer of Property Act; as a result, the plaintiffs lacked a valid title to redeem the land.
They relied on High Court authority (Bishun Singh v. Sheodhari Das and Bhukhan Mian v. Radhika Kurmi Debi) supporting the proposition that a mortgagee's rights cannot be acquired by prescription and that an entry in the record-of-rights alone is insufficient to establish a valid mortgage for purposes of a suit for redemption.

Respondents / Plaintiffs — Principal Arguments

Even if the zarpeshgi/mortgage of 23-1-1932 was invalid for want of registration, Sato and his transferees had been in possession of the land in the character of mortgagees (zarpeshgidars) continuously from 1932 until the suit was brought in 1949 — a period exceeding twelve years — and therefore had acquired the status of mortgagees by prescription/adverse possession.
The lower appellate Court's factual findings that Sato and later transferees were in possession as mortgagees (not as raiyats) supported the view that prescription operated to confer the limited mortgage interest despite the original document's invalidity.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bishun Singh v. Sheodhari Das (AIR 1947 Pat 110)	Relied upon by appellants to support the contention that an unregistered zarpeshgi/mortgage cannot sustain a suit for redemption and that record-of-rights entries are insufficient.	The Court noted the reliance but proceeded to consider the competing doctrine of prescription; it did not treat the authority as controlling on the facts before it.
Bhukhan Mian v. Radhika Kurmi Debi (19 Pat LT 489 : AIR 1938 Pat 479)	Contains observations (by Wort, J. and Manohar Lall, J.) that a person cannot prescribe for a limited interest like a tenancy or a mortgage.	The Court held that the observations were obiter on their facts and disagreed with the proposition. It rejected the absolute nature of that dictum and declined to follow it as binding.
Pursottam Das v. S.M. Desouza (AIR 1950 Orissa 213)	Expresses the contrary view: a limited interest (such as a mortgage) can be acquired by adverse possession/prescription.	The Court relied on Jagannadha Das, J.'s reasoning in this case to support the conclusion that a mortgagee's interest in immovable property can be founded on adverse possession.
Gossain Dass v. Issur Chunder Nath (ILR 3 Cal 224)	Supports the proposition that Section 28 of the Limitation Act can extinguish the rightful owner's title and transfer title to a wrongful possessor.	Referred to as authority for the proposition that prescription can transfer title to a wrongful possessor; used in reasoning that prescription can create a root of title to an interest in immovable property.
Akhauri Haliwant v. Deo Narain (AIR 1941 Pat 181 : ILR 19 Pat 852)	Authorities supporting operation of limitation/prescription in transferring title by adverse possession.	Referred to as part of the line of authorities establishing that Section 28 of the Limitation Act may transfer title to the possessor.
Fakirappa Jotappa v. Ningappa Shidlingappa (AIR 1943 Bom 265 : 209 Ind Cas 251)	Another authority cited for the proposition that limitation can transfer title to wrongful possessor.	Used alongside other decisions to show established precedent that adverse possession/prescription can operate to vest title.
Dukhu v. Nand Lal (ILR 30 Pat 997 : AIR 1952 Pat 239)	A Division Bench accepted the view that a limited interest can be acquired by adverse possession (contrary to the earlier obiter in Bhukhan Mian).	The Court cited this decision as confirming the correctness of the view that prescription can create a mortgagee's interest; it formed part of the authoritative line that the Court followed.
Phekua Mahton v. Padu Mahton (1955 BLJR 29)	Another authority accepting the principle that a limited interest may be acquired by prescription/adverse possession.	Referred to as additional support for the Court's conclusion that prescription could confer the mortgagee character despite a void original mortgage.

Court's Reasoning and Analysis

The Court examined two strands of inquiry: (1) the legal validity of the 23-1-1932 zarpeshgi document under Section 59 of the Transfer of Property Act, and (2) the factual findings of the lower appellate Court as to the nature of possession by Sato and his transferees.

First, the Court acknowledged that the record-of-rights showed the zarpeshgi had been effected by an unregistered document and that, strictly speaking, the requirements of Section 59 may not have been complied with — i.e., the zarpeshgi could be legally invalid as a documentary transfer or mortgage.

Second, the Court relied on the lower appellate Court's explicit factual findings that from 1932 until the institution of the suit in 1949 Sato (and thereafter his transferees) were in possession of the disputed land in the character of mortgagees (zarpeshgidars) and not as occupancy raiyats. The lower appellate Court had considered the evidence at length and rejected the claim that Sato and the transferees were occupying the land as raiyats.

The Court then turned to prescription/adverse possession as a legal doctrine that can affect interests in immovable property. It analysed prior authorities, noting that earlier observations in Bhukhan Mian (AIR 1938 Pat 479) that a person cannot prescribe for a limited interest were, on the facts of that case, obiter and not binding ratio. The Court quoted and relied on Jagannadha Das, J.'s reasoning in Pursottam Das v. S.M. Desouza that (i) possession by a mortgagee under a void mortgage is permissive only as to the absolute title but adverse in respect of the limited mortgage interest, and (ii) a mortgagee's interest is an interest in immovable property (not merely a contractual security) and thus susceptible to acquisition by adverse possession.

The Court further invoked authorities (e.g., Gossain Dass, Akhauri Haliwant, Fakirappa Jotappa) that Section 28 of the Limitation Act can extinguish the rightful owner's title and transfer title to the wrongful possessor, thereby reinforcing that prescription can create a root of title to an interest in immovable property. The Court noted that a Division Bench in Dukhu v. Nand Lal and the decision in Phekua Mahton had accepted the line that limited interests can be acquired by adverse possession.

Applying these principles to the lower appellate Court's unchallenged findings of fact (possession as mortgagees from 1932 to 1949), the Court concluded that notwithstanding the possible invalidity of the original zarpeshgi, the defendants had by prescription acquired the character and rights of mortgagees. Consequently, the lower appellate Court's decree for redemption in favour of the plaintiffs was correct and should be affirmed.

Holding and Implications

Core Ruling: The appeal is dismissed and the decree of the lower appellate Court granting redemption to the plaintiffs is affirmed.

Implications and immediate effects:

The plaintiffs were rightly granted a decree for redemption by the lower appellate Court and that decree stands (the appeal is dismissed with costs).
The Court held that, on the facts found by the lower appellate Court (continuous possession by Sato and his transferees as mortgagees from 1932 to 1949), prescription/adverse possession operated to vest in the defendants the status of mortgagees despite the possible invalidity of the original unregistered zarpeshgi.
The Court explicitly disagreed with the earlier obiter view in Bhukhan Mian that limited interests like a mortgage cannot be acquired by prescription; it treated that view as not correct and cited a line of authorities and a Division Bench decision supporting the contrary position.

The Court based its disposition on the lower appellate Court's factual findings about the nature of possession and on settled principles (as interpreted by the Court) regarding the operation of prescription/Section 28 of the Limitation Act; the decision affirms the lower appellate decree rather than purporting to lay down an entirely novel principle of law.

V.S.B

Final Disposition: Appeal dismissed.

Show all summary ...

1. In the suit which is the subject-matter of this appeal the plaintiffs alleged that village Tenagaria formerly belonged to defendants 4 and 5 who gave two plots, namely, plots 387 and 388, appertaining to khata No. 3 in zarpeshgi to one khatia orain and her daughter Musammat Mangri Orain on the 30th of Pus, 1988 Sambat, corresponding to the 23rd of Janury 1932. The consideration of the zarpeshgi was a sum of Rs. 152/-, Khatia Orain and Mangri Orain obtained possession as zarpeshgidars with regard to the two plots & it is said that possession was entered in the revenue survey khatian. It appears that Khatia Orain died, leaving her daughter Musammat Mangri as her sole heir. Mangri also died, leaving her husband Sato Oraon, and her minor son, Somra Oraon, defendants 1 and 2 as her heirs. On the 16th of June, 1947, Sato Oraon transferred the disputed plots to one Mangra Oraon father of defendants 3 to 3(b) by a registered sale-deed for a sum of Rs. 200/-, alleging that the property was his raiyati land.

2. It is further alleged that on 19-11-1938, the Deogharias gave the entire village in zarpeshgi to the plaintiffs by a registered bond for Rs. 2097/- and subsequently, on 15-6-1942, the Deogharias sold the entire village to the plaintiffs. Defendant No. 1 contested the suit on the ground that he was a settled raiyat of the village and had acquired the right of occupancy in the disputed plots. It is also alleged on his behalf that he was granted a hukumnama and rent receipt by the former landlord. Defendants 3 to 3(b) also contested the suit on the ground that their father Mangra Oraon was a bona fide purchaser of the suit land and that they have got the right of occupancy. The trial Court held that the plaintiffs could not get a decree for redemption but were entitled to receive rent as landlords. The learned Munsif accordingly dismissed the suit. The lower appellate Court reversed the decree of the learned Munsif and allowed the appeal on the ground that defendant No. 1, Sato, was cultivating the land on behalf of the zarpeshgidars and not as a raiyat. The lower appellate Court also found that defendants 3 to 3(b) had acquired no right of occupancy in the suit land and they were in the position of zarpeshgidars”. The lower appellate Court accordingly grant-led a decree in favour of the plaintiffs for redemption of the land.

3. The main argument on behalf of the heirs of defendant No. 3, who have preferred this appeal, is that the zarpeshgi deed dated 23-1-1932, was not a registered document and, therefore, the plaintiffs had no title to redeem. In support of this argument learned Counsel relied upon a decision of the High Court, Bishun Singh v. Sheodhari Das (AIR 1947 Pat 110 (A), and another decision of the High Court, Bhukhan Mian v. Radhika Kurmi Debi 19 Pat LT 489 : (AIR 1938 Pat 479) (B). It was argued that the requirements of Section 59 of the Transfer of Property Act, had not been complied with and the entry in the record-of-rights that the mortgagees were in possession in that capacity was not sufficient to establish the transaction of mortgage and the suit for redemption could not be entertained. It is necessary for us to state that the question with regard to the invalidity of the zarpeshgi had not been raised in the lower Courts and there is no finding of the lower Courts on this point. The only question debated before the lower appellate Court was whether Sato or defendants Nos. 3 to 3(b) had acquired the status of an occupancy raiyat with regard to the disputed plots and on that question the lower appellate Court has discussed the evidence elaborately and has come to the finding that Sato was not in possession as a raiyat and that defendant No. 3, who was the purchaser from Sato, was also not in possession of the land as raiyat.

4. On the contrary, the finding of the lower appellate Court is that Sato was cultivating the suit land on behalf of the zarpeshgidars and that defendants 3 to 3(b) also were in possession of the land in the same capacity. It is true in this case that the survey record-of-rights has an entry to the effect that the zarpeshgi was effected by an unregistered document. It may be that the requirements of Section 59 of the Transfer of Property Act, had not been complied with and that the zarpeshgi of 23-1-1932, is not legally valid. But the point raised by Mr. Mukherji on behalf of the respondents is that even if the mortgage was invalid, both Sato and his transferees were in possession of the land in the character of mortgagees from the year 1932 to the year 1949, for a period of more than twelve years. The suit was brought on 27-1-1949, and the argument on behalf of the respondents is that the defendant-appellants were mortgagees by prescription and a decree for redemption has been rightly passed in favour of the plaintiffs by the lower appellate Court. In our opinion, this argument is well-founded. On the findings recorded by the lower appellate Court, it is clear that the mortgage was effected on 23-1-1932, and, according to the entry in the record-of-rights, the document of zarpeshgi was not a registered document.

5. It has also been found by the lower appellate Court that the mortgagees entered into possession and Sato was in possession of the disputed land not in the character of a teanant but in the character of a mortgagee. The lower appellate Court rejected the claim of the defendants that they were occupying the land as occupancy tenants. It is, therefore, clear that upon the finding of the lower appellate Court Khatia Orain and Manga Orain and Sato were in possession as mortgagees and, later on defendants 3 to 3(b), who were transferees from Sato, were also in possession of the land in the status of mortgagees, till the year 1949 when the present suit was brought. Upon these facts it must be held that in spite of the invalidity of the mortgage of 23-1-1932, the defendants had acquired the status of mortgagees by the doctrine of prescription. On behalf of the appellants reference was made to 19 Pat LT 489 : (AIR 1938 Pat 479) (B), where there is an observation of Wort, J. that the rights of a mortgagee cannot be acquired by prescription. Manohar Lall, J. also agreed with Wort, J., though he said in the course of his judgment that it was not necessary to consider whether the defendant can ever be held in law to be able to prescribe against a true owner his rights as a mortgagee.

6. Indeed, this question was not necessary to be decided in that case, because the entry in the record-of-rights was of the year 1921 and the period of twelve years from that starting point had not expired when the suit was instituted in 1933. Any observation made by either Wort, J. or Manohar Lall, J. on this question is, therefore, in the nature of obiter and not in the nature of ratio decidendi. It is necessary, however, to record our opinion that the view taken by their Lordships is not correct. It has been pointed out by Jagannadha Das, J. in Pursottam Das v. S.M Desouza AIR 1950 Orissa 213 (C), that in 19 Pat LT 489 : (AIR 1938 Pat 479) (B) both the learned Judges have failed to notice that the possession of a mortgagee under a void mortgage was permissive so far as the absolute title was concerned, and adverse only in so far as the limited interest was concerned, and the learned Judges have further failed to bear in mind that the mortgagee's interest was an interest was an interest in immoveable property and not merely a contractual security for a loan, and that adverse possession and prescription was as much a root of title to interest in immoveable property as a contractual document satisfying the requirements of the Transfer of Property Act. At page 216 Jagannadhadas, J. has stated as follows:

In ‘Bhukhan Mian v. Radhika Kumari Debi, AIR 1938 Pat 479 : 176 Ind Cas 35 (B), the learned Judges, however, held that a person cannot prescribe for a limited interest like a tenancy or a mortgage.

7. With great respect, I am unable to persuade myself that proposition is correct. On the facts of that case, the question itself did not arise for a direct decision as pointed out by Manohar Lall, J. at page 482, right-hand column, where the learned Judge stated as follows:

‘If, as was argued, the defendant must be taken to have prescribed his rights as a mortgagee from the date of this entry, it is enough to state that the period of 12 years from that starting point had not expired when the suit was instituted in 1933’.

8. The dictum of the learned Judge was, therefore, obiter; but in view of the fact that both the learned Judges discussed the question on principle and were inclined to give their assent to the proposition as above stated, weight and respect is due to that statement. On a close examination, however, of the reasoning of the learned Judges in support of the proposition, it is found that the same is based on two assumptions (1) that the position of the mortgagee under the void mortgage is adverse in the sense that it is entirely in derogation of the owner's full title; (2) that a mortgage interest can be created only by a contract as prescribed in the Transfer of Property Act. The learned Judges have failed to notice that the possession of the, mortgagee under a void mortgage is permissive so far as the absolute title is concerned and adverse only in so far as the limited interest is concerned. They have further failed to bear in mind that a mortgagee's interest is an interest in immoveable property and not merely a contractual security for a loan and that adverse possession and prescription is as much a root of title to interest in immovable property as a contractual document satisfying the requirements of the Transfer of Property Act. That Section 28 of the Limitation Act, is operative not only to extinguish the title of the rightful owner, but to transfer the title to the wrongful possessor is now well settled. See Gossain Dass v. Issur Chunder Nath ILR 3 Cal 224 (D), Akhauri Haliwant v. Deo Narain, AIR 1941 Pat 181 : ILR 19 Pat 852 (E) and Fakirappa Jotappa v. Ningappa Shidlingappa, AIR 1943 Bom 265 : 209 Ind Cas 251 (F). I am, therefore, unable with all due respect to follow the decision in AIR 1938 Pat 479 : 176 Ind Cas 35 (B) and I am definitely of the view that such a limited interest can be acquired by adverse possession”.

9. This view of the law has been accepted as correct by a Division Bench of this High Court in Dukhu v. Nand Lal, ILR 30 Pat 997 : (AIR 1952 Pat 239 (G)) and Phekua Mahton v. Padu Mahton, 1955 BLJR 29 (H). Applying the principle laid down in this line of authorities, we hold that even if the mortgage of 23-1-1932, was not a valid transaction because of non-compliance of Section 59 of the Transfer of Property Act, still the defendants acquired the character of mortgagees of the disputed land because of prescription, and therefore, the plaintiffs have been rightly granted a decree for redemption by the lower appellate Court. We therefore affirm the decree of the lower appellate Court and dismiss the appeal with costs.