Mukerji and Bennet, JJ.:— This is a Letters Patent appeal by the plaintiffs against a judgment of a learned single Judge of this Court dismissing the suit of the plaintiffs with costs. The two lower courts had decreed the suit of the plaintiffs. The plaint sets forth that Parbhu Dayal, the adopted son of Khushi Ram, was a zamindar and also the owner and in possession of a shop in a village, and that under a sale deed of the 23rd of January, 1911, Parbhu Dayal sold the shop together with its site to the plaintiffs; that Mst. Manohari lived in the shop as a ryot at the will of Parbhu Dayal and that she had as a ryot no right of transfer of any sort in the shop; and further that Mst. Manohari executed a, sale deed on the 16th of April, 1912, registered on the 19th of April, 1912, by which she sold this shop to the defendant. Accordingly the plaintiffs ask for possession to of the shop. In the written statement the defendant set up the case that he had been in possession of the shop under a usufructuary mortgage deed of the 23rd of March, 1908, and that he was in possession of the shop when Mst. Manohari executed a sale deed of her equity of redemption to him on the 16th of April, 1912. Accordingly the defence claimed that the suit was time-barred because of twelve years' adverse possession. This was the sole question on which the learned single Judge of this Court dismissed the suit of the plaintiffs.
The suit was brought on the 16th of April, 1924, that is within twelve years from the sale deed that more than twelve years from the deed of usufructuary mortgage.
The question before us is a very simple one of law: Is it permissible for a person claiming adverse possession to add the period of his possession as usufructuary mortgagee to the period of his possession as a vendee from his usufructuary mortgagor? For the appellants it was argued that it is not permissible, because the nature, of his title during his period, as usufructuary mortgagee is different from the nature of his title as vendee. Reference was made by the learned counsel for the appellants to Lahuri Bibee v. Bejoy Chand Mahatap(1). But in that case it was merely held that a defendant who is claiming adverse possession as lessee could not add to his period as lessee the period which he alleged was adverse possession by his lessor, because there was no authority for that proposition. Reference was also made to the case of Umr-un-nissa v. Muhammad Yar Khan(2), but in that case it was merely held that you cannot treat the receipt of malikana allowance from a mortgagee as equivalent to possession for the purposes of adverse possession of the recipients Neither of these cases has any bearing at all on the proposition before us.
We consider that for the purposes of adverse possession we should regard the actual physical possession of the person making the claim, provided that claim has been put forward during the whole period, to be entitled to the right which is claimed by adverse-possession. In the present case the usufructuary mortgage, was a mortgage of the whole proprietary rights, subject of course to the right of redemption of the mortgagor. The period of possession as mortgagee and as vendee by the defendant was continuous, and during, the whole of that period the defendant was in possession, claiming the full rights of an owner in this shop. We may also regard the matter from a different angle of vision and say that Mst. Manohari and her mortgagee-together from 1908 were setting up an adverse title against the plaintiffs' vendor, because in the plaint it is alleged that Mst. Manohari had no right of transfer at all (paragraph 3); whereas in 1908 she made a usufructuary mortgage purporting to transfer the rights of an owner in this house. The plaint on the other hand alleged in paragraph 2 that Mst. Manohari lived in this shop merely as a ryot at the will of Parbhu Dayal, the vendor of the plaintiffs, i.e, that she was a licensee. When Manohari sold the house to the mortgagee she enabled the latter to tack to his possession claiming as full owner after the sale, his vendor's adverse possession as the owner. Thus the statutory period of twelve wears under a claim of full ownership was completed. Considering therefore the nature of the claim set up in the plaint and the nature of the title asserted by Mst. Manohari and by the defendant, we hold that for more than twelve years the defendant has been making a claim to adverse possession and that, therefore, this present suit of the appellants is barred by limitation.
Accordingly we dismiss this Letters Patent Appeal with costs.