Sen, J.:—
These appeals arise out of two suits filed in 1931 and 1939 in the Court of the Joint Subordinate Judge, Poona, namely, Suit No. 1540 of 1931 and Suit No. 162 of 1939. In the first suit the plaintiffs claimed to have purchased city survey No. 320 and other survey numbers situate at Somwar Peth, Poona, in Darkhast No. 2 of 1920 in September 1923 on behalf of himself and his brother, plaintiff No. 2 and they alleged that they could get possession only of city survey No. 316 owing to the obstruction made by the defendant when delivery of possession of the properties which had been sold in Darkhast was to be made. In Suit No. 162 of 1939, it was alleged that plaintiff No. 1 had similarly purchased city survey No. 318 in the same Darkhast proceedings and that he was obstructed from getting possession by defendant No. 2 but that he took forcible possession of this survey number some days thereafter and remained in possession till 1937 when he was dispossessed by the defendant. Both these suits were, accordingly, for possession from the defendant. The main part of the defence was that the plaintiffs were never in possession within twelve years preceding the suit, and that the defendant's predecessor-in-title Anandibai had been in adverse possession for many years and had perfected her title. Both the Courts below have found that the suits were barred by limitation and therefore the suits as well as the appeals which were heard by the Assistant Judge, Poona, were dismissed with costs.
These suits were based on the facts which go back to 1873 when the owner of the lands in suit, one Ramgir Guru Ranchodgir Gosavi, mortgaged them as well as other properties with possession to one Amritrao Daphale. The facts have been stated at length in the lower Appellate Court's judgment and here I shall state the more material and salient facts. The mortgagee Amritrao Daphale died in 1892, leaving two widows, Laxmibai, who died in 1895, and Anandibai. In 1893 Laxmibai adopted Ramrao as the son of her husband but after her death Anandibai remained in possession. In spite of Ramrao's adoption her name continued to be shown in the Municipal and City Survey registers and records as the holder and she continued to pay the municipal taxes up to 1922 when she sold city survey Nos. 317, 318, 319 and 320 to the defendans. In 1892 one Lakhmichand to whom Amritrao was indebted brought a suit against the latter and obtained a money decree. In a subsequent Darkhast Lakhmichand got the properties, in suit as well as other properties sold and purchased them himself. There was a sale certificate and a tabe yadi, exhibit 52, was issued in 1894. Thereafter akhmichand sub-mortgaged with possession the properties to one Jairam Dangare but continued to remain in possession thereof under a rent note. In 1907 Jairam's sons brought the suit for possession against Lakhmichand's sons and obtained, a decree in their favour. In Darkhast proceedings they obtained a tabe yadi, exhibit 54, in their favour dated 13th April 1908, the possession of at least some of the properties in suit having been delivered to them. In 1910 Ramgir's chela Someshwargir sold the equity of redemption to one Trimbakrao Khurjekar and in 1912 Khurjekar brought a redemption suit against the Dangares and some others, the latter not including Anandibai. In 1915 there was-a redemption decree allowing possession to Khurjekar and ordering instalments under the Deccan Agriculturists' Relief Act. That decree was varied as to instalments by the High Court in 1917. In 1919 Khurjekar filed a Darkhast for possession under the decree and possession at least of some of the properties was delivered to him under a tabe warrant, exhibit 56, dated December 19, 1919, issued in his favour; the bailiff's report shows that Anandibai's mukhtyar obstructed the delivery of possession with regard to survey No. 320. In 1920 Khurjekar brought a suit against Anandibai; but the plaint appears to have been returned to him in 1924 for presentation to the proper Court having jurisdiction. It was refiled some time later but ultimately the suit was dismissed for default in 1926. In 1922 Anandibai sold city survey Nos. 317, 318, 319 and 320 to the defendant and handed over possession to him. In 1920 instalments not having been paid as decreed by the High Court's decree of 1917, the Dangares filed Darkhast No. 2 of 1920 against Khurjekar, and as a result the properties in suit and other properties were sold to the plaintiff on September 19, 1923. The plaintiffs, however, got possession of survey No. 316 only and the defendant obstructed the delivery of possession of city survey Nos. 318 and 320. In 1930 the defendant prosecuted plaintiff No. 2 for trespass in respect of city survey No. 318. On the 25th September 1931, Suit No. 1540 of 1931 was filed for possession of city survey No. 320. In 1934 Vijayasingrao, son of Ramrao, the adopted son of Amritrao Daphale, sued the defendant for possession of city survey Nos. 317 and 320 on the allegation that Anandibai's possession had been merely as a widow and that the alienation by her was, therefore, invalid. It was held in that suit that Anandibai had perfected her title by adverse possession against the mortgagee and this decree was confirmed by the High Court which held that adverse possession had commenced in 1894. The second suit, No. 162 of 1939, was filed on February, 10, 1939, for possession of city survey No. 318.
2. We may begin with two findings of fact arrived at by the lower appellate Court which it is not possible for this Court in second appeal to disturb, namely, (1) that Anandibai and the defendant have been in uninterrupted possession of city survey Nos. 318 and 320 since 1894 and that neither the plaintiffs nor their predecessors-in-title have been in possession of either property since that year, and (2) that Trimbakrao Khurjekar, who purchased the equity of redemption in 1910, became aware of the fact that Anandibai was in actual possession of those two city survey numbers as in her own right as owner; the latter passage, which occurs in paragraph 17 of the lower appellate Court's judgment, presumably means that Trimbakrao Khurjekar became aware of the said fact on his purchase of the equity of redemption. The plaintiff, by virtue of his purchase at the Court auction in Dangere's execution proceedings on the 19th September 1923, can now claim to be the owner not only of the equity of redemption which Khurjekar purchased in 1910 but also the mortgagee's rights which were extinguished on the mortgage-debt having been satisfied by the proceeds of the sale. When in 1894 Anandibai held possession of the suit properties even after Ramrao's adoption—it being nobody's case, as pointed out by the lower appellate Court, that her possession was permissive in any way—her possession against Ramrao, the mortgagee's son, became adverse, and it continued to remain adverse to Lakhmichand and the Dangares who became subsequently entitled to possession. This is conceded by Mr. Joshi. The question arises whether Anandibai's and the defendant's possession should not also be regarded as adverse to the mortgagors, that is, Ratangir, Someshwargir and Khurjekar and, if so, in case the latter's rights were not extinguished by the date of the Court sale, whether by the date of the first suit, that is, September 21, 1931, the mortgagor's rights had become extinguished by the adverse possession of Anandibai and the defendant. It cannot, however, be presumed that either Ratangir or Someshwargir knew of the adoption of Ramrao, and it might be that they thought that Anandibai was in possession as the holder of the mortgagee's rights after the death of Lakhmichand. Such a position can also be ascribed to Trimbakrao Khurjekar after his purchase of Someshwargir's rights in 1910, but in our opinion, such a position could not extend beyond 1912 when he brought a redemption suit against the Dangares and others but omitted to include Anandibai among the defendants. If he had regarded Anandibai as the holder of the mortgagee's rights he would undoubtedly have made her a defendant. Thus at the date of the suit in 1912 at least, or at the latest, he did not regard Anandibai's as a person in possession of the mortgagee's rights. The lower appellate Court—has found as a fact that Trimbakrao Khurjekar must have become aware of the fact that Anandibai was in actual possession of two city survey numbers as in her own right, that is, as owner. Anandibai's possession, therefore, must prima facie be said to be adverse since 1912 against the mortgagor. Such possession, however, had not extended for twelve years at the date of the plaintiff's purchase on September 19, 1923, the date when under s. 65 of the Civil Procedure Code the properties sold vested in him; but that period was completed shortly thereafter.
3. Mr. Joshi has contended that in the case of a possessory mortgage, the mortgagor not being entitled to possession prior to redemption, the possession of a trespasser cannot be adverse to the mortgagor, though it can undoubtedly be adverse to the mortgagee. For this proposition he has relied, first, on the definition of adverse possession by Markby J. in Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee, next on Vithoba bin Chabu v. Gangaram bin Biramji and the judgment of Mr. Justice Telang in Chinto v. Janki(3), and lastly, on two dicta of Macleod C.J in Gitabai v. Krishna Malhari(4) and Tarabai v. Dattatram(5) Markby J.'s definition of adverse possession is as follows (p. 329):—
“By adverse possession I understand to be meant possession by a person holding the land, on his own behalf, of some person other than the true owner, the true owner having a right to immediate possession.”
This definition has been accepted by our High Court in Bhavrao v. Rakhmin(6). In Chinto v. Janki Mr. Justice Telang was strongly inclined to hold that the mortgagor, in the case of a possessory mortgage, had no right to recover possession as long as the mortgage money had not been paid off. This view has been followed in Vinayak Janardan v. Mainai(7). In Gitabai Bhau Rajmane…Plaintiff v. Krishna Malhari Shinde…Defendant . observed as follows, (p. 665):—
“It appears to me the simple question is, could the mortgagor in this case have filed a suit against the defendant for ejectment before he redeemed the mortgage for it seems that if the mortgagor could not file the suit until he redeemed, it would be absurd to say that time had begun to run against him until he did redeem, and that seems to have been the opinion of the Allahabad High Court in Muhammad Hussain v. Mul Chand.”
In Tarabai v. Dattaram, again, Macleod C.J said (p. 540):—
“In the case of a possessory mortgage where possession has been delivered to the mortgagee a trespasser obtaining possession may hold adversely to the mortgagee but not to be mortgagor.”
These views are opposed to the decisions in Puttappa v. Timmaji, Tarubai v. Venkatrao and Gurunath Balwant Deshpande Suryakant Dhunderao
I intend referring to the material aspects of these cases of our High Court in chronological order. In Vithoba bin Chabu v. Gangaram bin Biramji it was held that there can be no adverse possession of the equity of redemption. There the mortgagor sued his mortgagee to redeem, joining as defendant the person in possession of the mortgaged land, who claimed to hold adversely to both the mortgagor and the mortgagee. It was held that the possession of the last defendant being a trespass, not on the possession of the mortgagor who had only the equitable estate, but on the possession of the mortgagee in whom the legal estate was vested, and as the person in possession did not pretend to be a bona fide purchaser from the mortgagee, the trespasser could only succeed to such estate as the mortgagee possessed and that consequently the limitation applicable to the suit was sixty years. It was pointed out in Tarubai v. Venkatrao, that this case was an instance in which the mortgagor's interest had not been assailed by the trespasser and at page 56 of the same case it was further pointed out that in this case there was nothing beyond the bare ouster to show that the mortgagor had any reason to suppose a possession hostile to him had commenced. The case of Puttappa v. Timmaji was decided on the basis of the English case of Cholomondeley v. Clinton (1821) 4 Blight 1 and it was held that the possession of the trespasser may be adverse to the mortgagor. In Chinto v. Janki Fulton J. took the view that although the possession of a trespasser may undoubtedly be adverse to the mortgagor, the burden of proving when it became so rests on the former and that prima facie by his act of possession (this was a case of possessory mortgage) he merely ousts the mortgagee who is entitled to hold the property. As the trespasser had not in this case discharged the burden of proving when his possession had become adverse to the mortgagor an issue on this point was sent down to the trial Court. Telang J., however, was inclined to think that the mortgagor had no right to recover possession as long as the mortgage money had not been paid off, but he agreed in remitting the issue mentioned above to the lower Court. In Vinayak Janardan v. Mainai an inamdar had sued to eject the defendants from certain lands which were mirasi lands, the mirasdar, one Ganu, having executed a mortgage in favour of the defendants who later had redeemed the mortgage at a time when Ganu's tenure had not come to an end. In this case the judgment of Telang J. in Chinto v. Janki was relied on, and in view of the fact that the inamdar would not be prejudiced by his not being able to claim possession against the defendants by the latter's possession as trespasser against the persons entitled to possession under the mirasi tenure, the suit was dismissed. In this case the Court was concerned with the question whether the mirasdar Ganu's interests or rights were affected by the adverse possession of the defendants and there was, therefore, no invasion of the inamdar's, that is, the plaintiff's rights at all. It was, therefore, held that the inamdar had no cause of action. In Tarubai v. Venkatrao the facts were these. The plaintiffs who sued to redeem a mortgage with possession of a certain land dated 1866 wore the daughters and grandson of the mortgagor Khutubsha, widow, of one Kondi Aga. The first defendant was the grandson and heir of the mortgagee Nageshrao and the second and third defendants were nephews of Kondi Aga. They denied that the main plaintiffs, being female had any right to the property, and they alleged that they had been in possession since 1885 under an agreement with Nageshrao, the mortgagee; and they contended that the plaintiffs' claim was, therefore, barred by limitation, the suit having been filed more than twelve years after the date on which the defendants commenced their possession in 1885. It appeared that in 1885 defendants Nos. 2 and 3 had claimed to be heirs of Kondi Aga, the mortgagor's husband, and had entered upon the land. The mortgagee, therefore, filed the suit against them which was settled by an agreement in the same year, whereby defendants Nos. 2 and 3 undertook to pay off the mortgage and it was agreed that they should remain in possession of the land. The agreement was filed as a decree in the same year 1885 but the instalments of mortgage-debt which were payable thereunder were not paid after 1897. Shortly thereafter, the plaintiffs filed the suit to redeem the mortgage of 1886 and to recover possession of the lands. It was held on the evidence that the possession of the defendants was not adverse to the plaintiffs, inasmuch as there was no notice or knowledge, or circumstance that could have given notice or knowledge, to the plaintiffs, the mortgagors, that the defendants? possession was a displacement of their rights, they having no reason to know that their rights were invaded, and that until they had such reason there could be no necessity for them to take action. Batty J., who delivered an elaborate and carefully considered judgment, began with the consideration of the definition of adverse possession by Markby J. in Bejoy Chunder Banerjee v. Kally Prosonno Mookerjee, and observed (p. 51):—
“The last five words of this passage (‘the right to immediate possession’) are essential. For if the true owner has no right to immediate possession, it is practically immaterial to him who is in possession. Having no right himself to possession he cannot eject the person in possession:—contra non valentem agere non currit preascriptio. A claim, not divulged, or communicated or manifested by over tacts afiecting existing rights, gives no apparent cause of action, and no article of the limitation act appears to apply before a right to sue accrues.”
He pointed out that in Vithoba v. Gangaram there had been nothing beyond the bare ouster of the mortgagee to show that the mortgagor had any reason to suppose a possession hostile to him and commenced. In Ammu v. Ramakrishna Sastri which was a case in which the mortgagor's rights had been held to have been assailed and where the mortgagor had sued the trespasser fourteen years after the trespass had been brought to his notice, it was held that the dispossession did not affect the mortgagee alone, but was avowedly intended to deprive the mortgagor of all control, so that his rights would have been equally infringed thereby if there had been no mortgagee in the case at all and, therefore, amounted to possession adverse to the mortgagor. This was followed by a long discussion of Chinto v. Janki and with reference to Markby J.'s definition of adverse possession it was pointed out that in that case the question arose whether the plaintiff was entitled to immediate possession. In the words of Batty J. (p. 57);
“……the answer to this question, arrived at after considering the analogous case of the effect of dispossession upon a landlord during the currency of a tenant's lease was, that the mortgagor would be entitled to claim immediate possession if the ouster of the mortgagee were such as to operate as a ‘virtual dispossession’ of the mortgagor. This it could not be, unless it operated in some way to affect the mortgagor immediately by invading some right then necessarily exercisable by him.”
The effect of the examination of several cases including Chinto v. Janki and other English cases was thus stated (p. 65):
“Thus the adverse possession of a right may be entirely distinct from the adverse possession of tangible immoveable property; a right to sue in respect of the former arising possibly on open and avowed assertion or manifest adverse exercise of such right, while, on the other hand, the right to sue in respect of the possession and the consequent running of time under art. 144 of the Indian Limitation Act in respect thereof can commence only when the possession itself (and not a mere claim to some minor right) becomes adverse to the rights of the person alleging title, which it cannot be as long as that person is not entitled to claim possession. And Chinto v. Janki shows that for a mortgagor to be entitled to claim immediate possession on the ouster of the mortgagee, there must be ‘virtual dispossession’ of the mortgagor as well as of the mortgagee. In other words, there must be something done or declared, excluding his power to resume possession at will, as unmistakeably as physical ouster would.”
Then at page 68 the conclusion reached in that case was thus stated by Batty J.:
“No doubt, as long as the mortgagee is in possession, he and all claiming under him represent the mortgagor's possession. If the mortgagee in possession is dispossessed on grounds affecting only his right, as for instance, his right as heir to represent the original mortgagee, or his right, as in Parmanandas v. Jamnaban, to possession in spite of a third party's lien on the property, then the dispossession of the mortgagee obviously does not imperil or call in question any right of the mortgagor, and the mortgagor is not concerned or entitled to insist on being immediately restored to possession: and the possession taken is not adverse to him and cannot cause time to run against him. To give the mortgagor a right to insist on immediate possession, there must be an unequivocal ouster preventing the possession of the mortgagor from continuing altogether by leaving do room for doubt that the person taking possession does not profess to represent the mortgagor, but to hold in spite of him. In such a case, the mortgagor is as effectually and unmistakely displaced as if there had been no mortgage at all. When an ouster takes place in that manner the mortgagor knows that no one is in possession who can represent or continue his possession, or who is entitled preferentially to possession, and, therefore, he becomes entitled (and it is necessary and his duty, if he does not want his right to be barred) to claim possession immediately.”
The lower appellate Court has relied particularly on this passage in support of the conclusion that it has reached.
4. We next come to the case of Gitabai v. Krishna. There the defendant had entered into possession as the mortgagee's tenant and the suit was filed by the purchaser of the equity of redemption. The plaintiff having also acquired the rights of the mortgagee, the suit was for possession and arrears of rent. The defence was that the defendant had acquired miras rights in the land by adverse possession; but his possession was not held to be adverse to the mortgagor. I have already quoted the passage in this case occurring in the judgment of Macleod C.J, on which Mr. Joshi on behalf of the plaintiff-appellants has relied. It is clear that the claiming of miras rights by the defendant was not an invasion of the mortgagor's rights and that, therefore, on the principle of Tarubai v. Venkatrao this case was correctly decided; but the dictum of Macleod C.J appears to us to be too broadly stated. Fawcett J., the other Judge, also held that the mortgagor, whose rights had vested in the plaintiff, could not have obtained immediate possession until the mortgage had actually been extinguished. In this case, the case of Tarubai v. Venkatrao was not cited or considered and the only question was whether the defendant had acquired the miras rights by adverse possession; and, therefore, there could be no invasion of the mortgagor's rights as long as the latter was not in actual physical possession. That being so, it seems to us that this case, apart from the passage relied upon by the appellants, does not go against the decision in Tarubai v. Venkatrao. In Tarabai v. Dattaram, Macleod C.J observed:
“In the case of a possessory mortgage where possession has been delivered to the mortgagee, a trespasser obtaining possession may hold adversely to the mortgagee but not to the mortgagor”,
a passage which I have already once quoted. It is, however, to be noticed that the sentence immediately preceding this sentence is as follows:
“Though a trespasser by holding possession against the mortgagor can bar the mortgagor's light to redeem, it cannot be said that an equity of redemption can be acquired by adverse possession unless the person claiming is in physical possession of the mortgaged property.”
The earlier sentence appears to indicate that the principle of the dictum relied upon was not intended by Macleod C.J to be of universal application. This dictum of Macleod C.J has been followed by other High Courts, in Zinda v. Mt. Roshnai and Dubraj Mhto v. Lalji Shai and the same principle has been enunciated in Binanand Sawase v. Thuroo Mahto, Saling Ram v. Bobu Gauri Shankar Tandan and Narattam Dey v. Debendra Lal Khan. In this case, again, Tarubai's case does not appear to have been considered. The facts of the case were regarded by Broomfield J. in Gurunath Balwant Deshpande v. Suryakant Dhunderao, as “extremely complicated” and Broomfield J. remarked (p. 412):
“If the learned Chief Justice meant to say that the equity of redemption can never be acquired by adverse possession, it would seem that he went too far, and it must be borne in mind in connection with this case that the persons claiming adverse possession there (the Agashes) had never had any possession at all except for a period of two years, and apart from that temporary possession of the property they had done nothing else as far as the report goes to assert or evidence an adverse title.”
These remarks appear altogether justified in view of the peculiar facts of that case, which may broadly be stated as follows. One Hanmantrao had mortgaged certain lands to two persons Govindbhai Gujar and Antaji Parchure. The equity of redemption became vested (after diverse mesne assignments) in one Agashe and Parchure in equal moieties. Agashe's son sued Parchure and Govindbhai's son for redemption of the mortgage. After the decree, the money due on Agashe's moiety was paid off and Parchure had possession of his half share till 1913, that is, for many years after the decree. Hanmantrao's son sued Parchure for a declaration that after Hanmantrao's death the equity of redemption had reverted to him and for possession. On Hanmantrao's son's death, his wife Tarabai obtained a decree against Parchure and in execution she obtained possession of both the moieties. After the death of Agashe's son Agashe's grand-daughter sued Tarabai for possession. It was contended that the Agashes had acquired title to one moiety by adverse possession. As regards that moiety Agashe's heirs no doubt held the rights of both the mortgagor and mortgagee but the actual possession remained with Parchure till 1913. Parchure's possession as mortgagee was further adverse to Hanmantrao's heirs and also since 1907 to Agashe's heirs. Crump J., the other Judge, observed (p. 548):—
“As regards the suggestion that there was adverse possession of the equity of redemption it is clear that Aghashe's heirs could not hold that equity, adversely when they were never in physical possession of the property.”
It was, therefore, not necessary to rely for the decision of this case on the general principle enunciated by Macleod C.J in his judgment. The sentence that I have quoted out of Crump J.'s judgment suggests that in his opinion the person in physical possession of the mortgaged property could hold it adversely against the owner of the equity of redemption, that is, the mortgagor. Clearly, therefore, he did not agree with Macleod C.J in the principle stated by him which is relied on by the appellants. In Gurunath Balwant Deshpande v. Suryakant Dhunderao one Venkatrao mortgaged a certain land to one Tipanna who was to pay a sum of Rs. 82-2-0 annually to the mortgagor for rent. This sum the mortgagee went on paying till 1918 when Tipanna's heirs passed a lease to defendant No. 4 agreeing to pay enhanced rent for the land. Their Lordships decided this case on the principle of Puttappa v. Timmaji the facts being similar to those of that case, in spite of the observations of Macleod C.J in Tarabai v. Dattaram.
5. The above are the principle cases of our High Court in which the question under consideration has been dealt with. It will be seen that apart from Vithoba bin Chabu v. Gangaram bin Biramji and the remarks of Telang J. and Macleod C.J in three of the cases, the principle of the decision in Tatubdi v. Venkatrao has generally been acted upon and that in the latest of the cases, the observations relied on by Mr. Joshi have not been acted upon. The Madras High Court in a Full Bench case, in Periya Aiya Ambalam v. Shunmuga Sundaram has declared itself in agreement with the decision in Puttappa v. Timmaji Chinto v. Janki and Tarubai v. Venkatrao Other cases considered in the said case, which are in conformity with the conclusion of their Lordships, are Ammu v. Ramakishna Sastri Chathu v. Aku, Thopara Mussad and The Collector of Malabar, and Ismdar Khan v. Ahmad Husain, The effect of the Madras decisions has been thus stated at p. 912.
“According to these Madras cases, therefore, where a stranger dispossesses a mortgagee in possession, whether adverse possession will run against the mortgagor or not depends upon the fact whether there was dispossession of the mortgagor also. Mere dispossession of the mortgagee will not amount to such adverse possession; there must be at least notice to the mortgagor that possession is held against him also”.
The effect of the Bombay cases and of Ismdar Khan v. Ahmad Husain has been thus summarised at p. 914:
“These eases establish that an equity of redemption may be lost by adverse possession; but for that purpose it is not sufficient for a trespasser, who has ousted a mortgagee, to prove that possession is held on an exclusive title, without also showing that it was acquired and retained with an assertion of an adverse title ta the knowledge of the mortgagor.”
Their Lordships also came to the conclusion that all the decisions mentioned were in accordance with the English, law and were also consistent with principle:
“When the owner of the property in possession is dispossessed, the trespasser's possession is clearly adverse to him from its inception, as, to his knowledge, the property is held against his will, and he must assert his right within twelve years of his dispossession. But if his mortgagee, who has been placed in possession by him, is followed by another person there is no presumption in law that such possession was taken without any right. He may be an assignee of the mortgagee, or one who purchases the mortgage as a mortgage; or he may be an adverse claimant to the mortgage right; where more than one inference may be drawn, that inference should not be drawn which imputes a wrongful act to a person. The defendant has therefore to show that he took possession of his property as absolute property in contradiction to mortgage property”.
With, respect I do not think that the principles applicable to cases such as the present could have been stated more clearly or in better language; and this examination of the Madras cases shows, in my opinion, that no distinction can be drawn between conclusions reached by our High Court in Tarubai v. Venkatrao and that reached by the full bench of the Madras High Court in Periya Aiya Ambalam Shunmuga Sundaram.
6. The decisions in both these cases receive support from a Privy Council decision in Khiarajmal v. Daim although that case was not referred to in any of the Bombay cases cited above prior to Gurunath Balwant Deshpande v. Suryakant Dhunderao. The important issue in that case was whether a suit for redemption was barred by adverse possession for more than twelve years by the purchaser at execution sales of the equity of redemption. The evidence showed that the purchasers were nominees of the mortgagees and not independent third parties. Lord Devey who delivered the judgment observed (p. 32):
“If the purchasers had been independent third parties, and accounts had been rendered and payments made by the mortgagees to them instead of to the mortgagors, the circumstances relied on would have been cogent evidence of adverse possession of the equity of redemption in favour of such third parties.”
This passage clearly shows that in their Lordships' opinion the equity of redemption was capable of being lost by adverse possession. The two contentions urged on behalf of the auction purchasers as to the point of limitation are given at the same page, one of them being that there had been adverse possession for more than twelve years of the equity of redemption. This argument was not negatived by Their Lordships on the ground that the equity of redemption could not be lost by adverse possession, but the evidence on this point was considered.
7. Mr. Joshi, however, has relied on Parthasarathy Naicken v. Lakshmana Naicken as laying down the true principle applicable to the facts of this case. There their Lordships were concerned with the question whether possession adverse to the mortgagor was not adverse to and affected the right of a simple mortgagee not entitled to possession when the adverse possession commenced, the mortgage being prior to the commencement of such possession. It seems to us that in that case their Lordships were concerned with the question which is converse to that with which we are concerned and that, therefore, their Lordships' decision that possession adverse to the mortgagor was not adverse to the mortgagee in such a case has hardly any relevancy in the present case. Besides, that was a case of a simple mortgage and not a possessory mortgage as in our case. Mr. Joshi has also relied on Aimdar Mandal v. Makhan Lal Day but that case followed the decision in Parthasarathy's case.
8. To summarise as observed in Tarubai v. Venkatrao and with reference to the stand-point adopted in that case, there is nothing irreconcilable in the decisions of Ammu v. Ramakrishna Sastri, Puttappa v. Timmaji and Marquis Cholomondeley v. Lord Clinton on the one hand and those in Chinto v. Janki and Vithoba bin Chabu v. Gangaram bin Biramji(8) on the other. In Gitabai v. Krishan Malhari(9) there was no invasion of the mortgagor's rights and, therefore, the decision in that case cannot be said to affect in any way the principle of the other Bombay cases. In Tarabai v. Dattaram Macleod C.J as already pointed out was not supported is the dictum relied on by the other Judge, Crump J., and according to another Judge of this High Court in a subsequent case (Gurunath Balwant v. Suryakant Dhunderao), Macleod C.J in enunciating the principle on the question “went too far”. The decision in Tarubai v. Venkatrao supported by the full bench case of Periya Aiya Ambalam v. Shunmuga Sundaram, and it seems to us that the principles of Parthasarathy Naicken v. Lakshmana Naicar and Aimadar Mandal v. Makhan Lal Day cannot apply to the present case. There is, therefore, no difficulty in this case in holding that the principle of Tarubai v. Venkatrao should apply to the facts of this case. If so, the possession of Anandibai and the defendant must be held, in view of the facts already mentioned, to be adverse to the mortgagor from 1912 and the mortgagor's rights must be regarded as extinguished under s. 28 of the Indian Limitation Act some time in 1924.
9. I should mention that Mr. Joshi tried to distinguish the case of Tarubai v. Venkatrao on the facts from the present case. I have already given the material facts of that case and it seems to us that no distinction as to principle can be made between that case and the present one. The position of the parties who relied on adverse possession against the mortgagor's heirs was no doubt in that case not adverse to the mortgagees, but that seems to be besides the point. What was decided in that case was that such a party should show that the mortgagor had notice or knowledge of the possession or that there were circumstances that should have given him notice or knowledge before the possession could become such adverse possession as to displace the mortgagor's rights.
10. Mr. Jathar on behalf of the defendant-respondent has contended that even if this Court were to accept the principle for which Mr. Joshi has contended the result would be this. Khurjekar actually brought a redemption suit and got a decree in 1915 and that decree gave him the right to immediate possession. Still Anandibai remained in possession which was adverse to him up to the date of the suit. Therefore, by 1927 Anandibai's title had become perfected and the mortgagor's rights extinguished. There can be no doubt that as soon as the decree was passed, the rights of the parties under the mortgage became merged in the decree and were converted into those shown in the decree and that the possession of one who was not entitled under the decree to possession, therefore, necessarily became adverse to the party so entitled. In our opinion this line of argument must be regarded as correct. Mr. Jathar has also relied on the sanad under the city survey which Anandibai got regarding the two suit properties in 1916 and 1917. It is true, as pointed out in Narbheramji Gyaniramji Ramsnehi v. Vivekramji Bhagatramji Ramsnehi, that a sanad granted under s. 133 of the Bombay Land Revenue Code is not in the nature of a document of title, but is a document affecting rights only between the Crown and the person to whom it is granted. But Beaumont C.J also stated in that case that an order made under the Land Revenue Code is prima facie evidence of title, though not conclusive and liable to be over-ridden as other evidence may be over-ridden. The preamble to the sanads before us, exhibits 74 and 75, says that the sanads have been granted inter alia “with a view to assessing the land-revenue and maintaining the record of the rights with respect to the ownership of lands and other rights”. Thus it is apparent that some kind of inquiry into the question of ownership must have been made before the sanad was granted to Anandibai under ss. 133 and 131 of the Land Revenue Code; and in Anderson's City Survey Manual, para. 103, the procedure required to be observed at such an inquiry appears to include the giving of a notice to the interested parties. That being so, the presumption in this case would be that Khurjekar was given notice to the inquiry, and if so, it must be held that Anandibai's possession became known to Khurjekar and was adverse to him since 1917. Thus even taking 1917 as a starting point of limitation, the mortgagor's rights would be extinguished by 1929, that is, two years prior to the suit of 1931. Mr. Jathar has further contended, though his contention has been raised for the first time here, that the present suit was not competent, as before a suit for possession could be brought, it was necessary for the plaintiffs to sue for redemption in the case of the two properties in suit, his argument being that these properties had not been really redeemed by the dates of the present suits. There is no doubt that Anandibai's possession became adverse to the mortgagees since 1894. She may, therefore, be regarded as having perfected her title as to the two properties in suit as against the mortgagees in 1906. Thus in that year the Dangare's security in the two properties in suit came to an end, as Anandibai continued to hold the mortgagee's rights after 1906. Mr. Jathar has contended that it was necessary for Khurjekar to file proceedings against her in respect of these two properties for redemption and that as they have not been redeemed, no suit for their possession would lie, for Anandibai's mortgagee's rights cannot be said to be affected by Khurjekar's suit of 1912 or the sale held to enforce the decree in that suit. It seems to us that a possible answer to this line of argument is that Khurjekar's right to sue Anandibai would arise on his becoming aware that she had displaced the mortgagee by adverse possession. Khurjekar might know that she was in adverse possession to the Dangares but still he might not know that the Dangares had been displaced by Anandibai. The question whether Khurjekar in such a situation was bound to embark on an inquiry as to when Anandibai's adverse possession began against the mortgagee is not free from difficulty, in view of which we do not accept this contention of Mr. Jathar.
11. Mr. Jathar has further contended that the sale in favour of the plaintiff in 1923 was affected by the rule of lis pendans because Khurjekar's suit filed in 1921 was still pending at that date. The plaint in that suit appears to have been returned on 8th July 1924 for being filed in a Court of proper jurisdiction and it seems to have been refiled in August 1924; but this interval does not make any difference to the argument for the sale in favour of the plaintiff was in September 1923. Mr. Jathar has argued that as by the dismissal of the suit in 1926, Khurjekar's rights as between himself and Anandibai were concluded, the plaintiff's rights under the sale of 1923 would be affected by this result, that is, his rights also would be concluded. We find, however, that the suit was dismissed for default and we feel some doubt as to whether it can be said that as between Khurjekar and Anandibai, the former's rights were concluded by the suit in such circumstances. Accordingly, we are unable to accept this contention also.
12. I shall now deal with an alternative contention urged by Mr. Joshi on behalf of the appellants, namely, that limitation could not have run against the plaintiff prior to the date of his purchase in September 1923 and that it commenced to run against him at that date. For this purpose he has relied on Aimadar Mandal v. Mahhan Lal Day and Priya Sakhi Debi v. Manbodh Bibi. The material facts of the first case were these. There was a simple mortgage of certain lands in 1880, the plaintiffs being the mortgagee. The plaintiff brought a suit and got a decree on the mortgage and the property was sold and purchased by the plaintiff himself in 1898 but he failed to get anything but symbolical possession thereof. Previously, however, defendant No. 1 had come into possession of the property as the lessee of a purchaser in an earlier Court sale under a decree on a rent note, that sale having taken place in 1886. The question arose whether defendant No. 1's possession was adverse to the plaintiff and his suit time-barred. It was held that the mortgagee had no title to possession under the decree in his suit, that the sale of 1898 entitled the plaintiff for the first time to possession, and that as defendant No. 1 was in possession, limitation began to run against the plaintiff only in 1898. In view of these facts we do not think that this case can be regarded as any guide in the decision of the present case. In the first place, the case was of a simple mortgage and the mortgagee was not in possession. Secondly, the principle underlying that case, as stated by Mookerjee J. in Priya Sakhi Debi v. Manbodh Bibi at p. 441, was that where a simple mortgage has been executed by a person in possession, the dispossession of the mortgagor, though it may operate by lapse of time, under s. 28, to extinguish the equity of redemption in favour of the adverse possessor, does not affect the interest of the mortgagee who is not entitled to possession of the mortgaged premises either under the statute or under the contract. This principle in no way conflict's with that of Tarubai v. Venkatrao Besides, as held in Soni Ram v. Kanhaiya Lal there is nothing in art. 148 of the Limitation Act to justify a finding that by reason of the fusion of the interests of the mortgagor and mortgagee, the period of limitation which has already begun to run is suspended or comes to an end. Their Lordships in the case observed (p. 237):—
“Their Lordships consider that if they were to hold that, by reason of the fusion of interests between 1883 and 1898, the period of limitation was suspended, they would—this not being a suit to which the proviso to s. 9 of act xv of 1877 applies—be deciding to the express enactment of that section that “when once time has begun to run no subsequent disability or inability to sue stops it.”
We think, therefore, that there is no substance in their argument of Mr. Joshi.
13. In view of the conclusions that we have already reached it is unnecessary for us to decide whether the plaintiff's second suit filed in 1939 for the recovery of the possession of city survey no. 318 was barred by O. II, r. 2. That is the conclusion of the lower appellate Court, and if it were necessary for us to decide the point we should hold that conclusion is right. The cause of action stated in the suit of 1939 was the plaintiff's dispossession in June 1937 after a period of possession beginning in 1924. The lower appellate Court however has found this allegation not proved. That being so, it cannot be said that there was any cause of action in the second suit different from that in the first suit. Mr. Joshi, however, relied on the fact that in 1927 the defendant prosecuted the plaintiff for trespass and his contention is that this act of the defendant should be regarded as an admission on his part that the plaintiff was in possession in 1927. In our opinion, however, the possibility of such an inference will not avail the plaintiff in view of the lower Court's findings that the plaintiff was in fact not in possession since 1924.
14. In the result, we hold that both the Courts below were right in holding that the plaintiff's suit is barred by limitation. Both the appeals, therefore, fail and are dismissed with costs.
Appeal dismissed.
P.A.D
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