1. This Second Appeal is by the plaintiffs. The learned trial Court decreed the suit which was reversed by the learned lower appellate Court.
2. The following facts are not disputed. Late Govinda, Late Kalipada, Late Mahendra and Sri Nagendra were brothers and the suit land was ancestral property. The plaintiffs No. 1 to 12 are the successors of Late Govinda, Plaintiffs No. 13 and 14 of Late Kalipada. The contesting defendants No. 1, 2 and 3 are successors of Late Mahendra and Sri Nagendra has been impleaded as defendant No. 4. All the 4 brothers got ¼th share each of the joint property. On 25.5.31 by a registered mortgage deed, exhibit A Mahendra mortgaged his ¼th share with delivery of possession to his 3 brothers and on 3.9.35 Nagendra, defendant No. 4 sold his ⅓rd share of the mortgaged property and his entire ¼th share to his brothers Late Govinda and late Kalipada. Eoth Mahendra and Nagendra left the place for residing elsewhere, and plaintiffs are successors of Late Govinda and Kalipada are residing on the suit land.
3. According to the plaintiffs in view of the above fact they became the absolute owner of the entire land and they have also alleged that the mortgage was not redeemed. Plaintiffs have alleged that the defendants Nos. 1, 2 and 3 are powerful and rich people and out of grudge and on the strength of money they have raised false claim of their title in respect of ¼th share of the suit land. Hence, the present suit has been filed for confirmation of possession upon declaration of ownership of the plaintiffs, injunction against defendants restraining them from taking illegal possession of the suit land and also for cancellation of the mutation of the names of the defendants No. 1, 2 and 3 in the revenue record.
4. As stated above, the learned trial Court decreed the suit which was reversed by the learned lower appellate Court. It may be mentioned that in the registered mortgaged deed, exhibit-A there is an endorsement in Bengali stating that ‘received all money of the deed’. This endorsement was alleged to have been signed by the mortgagors. According to the learned lower appellate Court in view of the above endorsement there was a valid redemption of the mortgage by the contesting defendants as pleaded. The learned lower appellate Court rejected the contention that the redemption should have been by a registered instrument. The plaintiffs have also claimed title by adverse possession which was rejected by the learned lower appellate Court on the ground that there cannot be any adverse possession between co-sharers.
5. I have heard Mr. B.K Acharyya and also Mr. B.L Singh learned counsel for the parties.
6. The learned counsel for the appellant has urged that the finding of the learned lower appellate Court that the property was redeemed by the contesting defendants is contrary to the provisions of the Transfer of Property Act, 1882, for short, the Act,. and in this connection learned counsel has drawn my attention to the Section 60 of the Act.
7. Section 60, inter alia, provides that at any time after the principal money has become due, the mortgagor has a right on payment or tender of the mortgagcd money (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgegad property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to retransfer the mortgaged property to him or to such third person as he may direct, or to execute and where the mortgage has been effect by a registered deed to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished.
8. In the case in hand except the endorsement on the back of the registered mortgaged deed, exhibit A, there was neither any re-delivery of possession or execution of any registered deed as required by this Section or under Section 17(I)(c) of the Registration Act. Thus I hold that the plea of the defendants that the mortgage property was redeemed is not sustainable and accordingly the finding of the learned lower appellate Court is erroneous in law.
9. Mr. Singh, learned counsel for the respondents has streneously urged that the endorsement itself is sufficient inasmuch as parties are all related. I am unable to accept the contention of Mr. Singh in view of the specific legal provisions.
10. Incidently, it may be mentioned that on going through the judgment of the learned trial Court, I find that the regitered deed, exhibit-A was produced by the defendant No. 4 and not by the contesting defendants.
11. Mr. Singh, learned counsel for the respondents has streneousfy surged that the suit land being esmali land the claim of the plaintiffs' of adverse possesion is not tenable in law. In this connection learned counsel has placed reliance in a decision of the Apex Court in Chhote Khan v. Mal Khan, A.I.R 1954 S.C 575 wherein their Lordships held that no question of adverse passession arises where the possession is held under an arrangement between the co-sharers. There is no legal dispute that normally there can not be any adverse possession against a co-sharer. In the case in hand though the property was originally ejmali byexe-cuting the mortgage deed, exhibit-A with delivery of possession the ejmali character was lost. Though Mr. Singh has tried to impress this Court that after redemption of mortgage the ejmali character revived I am unable to accept this contention more particularly as I have held that there was no redemption of mortgage as required under the law. The learned lower appellate Court also erred in law in not considering this aspect of the matter while holding that there cannot be any adverse possession between co-sharers. Mr. Acharyya has rightly pointed out that after lapse of 35 year the defendants cannot now pray for redemption by filing a separate suit as it is barred by limitation.
12. Mr. Singh has urged that in view of Section 67 of the Act unless there is a foreclosure of the mortgaged property the plaintiff cannot acquire right, title and interest over the land. I am unable to accept this contention in view of the fact that the defendants failed to redeem the mortgaged property and as the plaintiffs are in continuous possession adverse to the defendants for more than the statutory period. Mr. Singh has urged that the plaintiffs are not entitled to get a decree for cancellation of the mutatioa in the names of the contesting defendant in view of Section 154(1)(c) of the Assam Land and Revenue Regulation, 1886 which runs as follows:—
“154(1) Except when otherwise expressly provided in this Regulation, or in rules issued under this Regulation, no Civil Court shall exercise jurisdiction in any of the following:—
(a) *********
(b) *********
(c) the formation of the record-of-rights, or the preparation, signing or alteration of any document contained therein;
(d) *********
(m) *********
13. Mr. Acharyya, learned counsel has urged that this is regarding preparation of reveaue records during the settlement operation and that the civil court is the best authority to decide the title and accordingly directed cancellation of the mutation in revenue record. In this, connection I may quote below section 62 of the Regulation which runs as follows:
“62. Nothing contained in this Chapter and nothing done, in accordance therewith shall be deemed to
(a) preclude any person from bringing a suit in the Civil Court for possession of, or for declaration of his right to any immovable property to which he may deem himself entitled, or
(b) render the entry of any land in any register under this Chapter as revenue-free, or an admission on the part of the right of the person in whose name the land may be entered, or an admission of the validity of the title under which the said” land is held revenue-free.”
14. I, therefore, find considerable force in the submissions of Mr. Acharyya and hold that civil court is the best authority to decide the title over propetty to any person and can also direct cancellation of mutation in the revenue record. I further hold that Section 154 of the Assam Land and Revenue Regulation, 1886 is not a bar for issuing such a direction for cancellation. It is needless to say that entry in the revenue record does not confer any title on any person and at tost it a piece of evidence.
15. For the reasors stated above, I find merit in the present appeal and accordingly it is allowed by sotting aside the impugned judgment and decree. The decree of the learned trial Court is restored. Parties to bear their own costs.