Bireshwar Samanta v. Priya Sakhi Debi

1. This is an appeal from a decision of the learned Subordinate Judge of Burdwan dated the 3rd October, 1912, reversing the decision of the Munsif. The suit was brought to enforce a mortgage security and the only question that arises in the present appeal is the question of limitation, and that question is whether when a mortgagor has been ousted from possession of the property, the possession of a third party becomes adverse also as against the mortgagee. The view that has been taken by a Division Bench of this Court in the case of Aimadar Mondul v. Makhan Lal Dey . 1906 33 Cal. 1015. is that the possession in such a case would not be adverse against the mortgagee. The decision has been commented upon by Mr. Justice Mukerjee in his judgment in the case of Nandkumar Dobey v. Ajodhya Sahu . 1911 11 I.C 465.. The comments of the learned Judge will be found at pages 298 and 299. The case has been further observed upon and dissented from in the judgment of the Madras High Court in the case of Ramasawmi Chetti v. Ponna Padayachi . 1913 36 Mad. 97. Of course, if the case in Aimadar Mondul v. Makhan Lal Dey stands by itself I am bound by it and I must follow it here. But the learned Judge in that case seems to have overlooked several authorities that establish a contrary proposition. Those cases are the case of Prannath Roy Chowdry v. Rookea Begum . 1857-59 7 M.I.A 323 (at page 355 are the observations of their Lordships of the Judicial Committee where a different view was taken), the case of Sheoumber Sahoo v. Bhowaneedeen Kulwar . 1870 2 N.W.P.H.C.R 223.. The other decisions are cited in the course of the judgment of Mr. Justice Abdur Rahim in the case of Ramasami Chetti v. Ponna Padayachi. Then we have also got the decision of the Privy Council in the case of Karan Singh v. Bakar Ali Khan . 1883 5 All. 1. That case seems to me, when carefully looked at, to be inconsistent with the case of Aimadar Mondul v. Makhan Lal Dey. It was assumed by the Privy Council in the case of Karan Singh v. Bakar Ali Khan that in a case of dispossession by a third party there is no distinction between the positions of the mortgagor and the mortgagee. That seems to me clear upon reading the judgment. I think, having regard to the decisions of the Privy Council, I am bound to follow the views taken in those cases.

2. The clear finding of fact made by the Court of first instance is that the mortgagors of the plaintiff were ousted some time in the year 1892. This suit was not brought till the 23rd August, 1905. In that view, the present appellants must have been in possession, adverse to the mortgagors of the plaintiff for more than twelve years prior to the institution of the suit, and, in my opinion on a consideration of the decision of the Privy Council, that possession was also adverse to the plaintiff, the mortgagee of the defendants Nos. 1 and 2. That finding of fact by the Court of first instance has not been overruled or dissented from by the lower Appellate Court. I think, therefore, that the judgment and decree passed by the lower Appellate Court ought to be set aside and the decree of the Munsif restored. The respondents will pay to the appellants their costs in all Courts.

V.B/R.K

3. Appeal allowed.