ORDER OF REFERENCE TO A FULL BENCH

Sadasiva Ayyar, J.:— The defendants Nos. 2 and 3 (appellants) trespassed into the house mentioned in the plaint in 1898 and dispossessed the usufructuary mortgagee of the house, the equity of redemption vesting in the plaintiff and the mortgage term expiring only in 1917. This suit for declaration of the plaintiff's title to the house was brought in 1909 on the allegation that defendants Nos. 2 and 3 denied, the plaintiff's title to the equity of redemption, when the plaintiff remonstrated with, them for constructing additional buildings upon the lands in 1908. One of the questions for decision is whether this declaratory suit is burred by limitation.

The plaintiff bases his cause of action in 1908 when the defendants Nos. 2 and 3 denied his title and when he remonstrated with them, and he contends that he has six years from 1908 to bring his suit for declaration.

The defendants Nos. 2 and 3 contend that they have been in adverse possession of the house from 1898 to the plaintiff's knowledge, that they have been denying the plaintiff's title from 1898 and setting up title in themselves, and hence this declaratory suit, brought more than six years after 1898 and more than three years after the plaintiff attained majority, is barred.

That the period of limitation for a declaratory suit is six years under article 120 of the Limitation Act the period being calculated from the date when the right to sue accrues is now settled, unless the case comes under the classes of suits praying for the special declarations provided for in articles 92, 93, 118, 119, 325 and 129 (that is, suits for declarations in respect of forgeries of documents, adoptions, alienations by Hindu widows and maintenance, etc.).

Now declaratory suits might be of very various kinds and the question when the right to sue accrues to respect of a particular class of declaratory suits seems to be a question of great difficulty in many cases. Section 42 of the Specific Relief Act provides in general terms that any person entitled to any legal character or to any right to property may institute a suit against any person denying or interested to deny his title to such character or right and the Court may, in its discretion, make the needed declaration that he is so entitled. Now, if a suit can be instituted not only against the person denying, but even against the merely interested to deny, when does the right to sue accrue for a suit brought against a person who is merely interested to deny? Is it as soon as the defendant becomes interested to deny or the plaintiff apprehends that he may actually deny? And if the cause of action arises only when the denial occurs, should that denial be by a formal act or can an oral denial made to a third person or a denial made in writing and not communicated to anybody give rise to a cause of action and will the plaintiff be barred after six years from such denial? Can the defendant be allowed to say that he wrote a denial in his closet and put it in a box without communicating it to anybody and that six years from that date is the period for bringing the declaratory suit? Further, does each separate denial give rise to a separate cause of action? On these questions, the case law has not been very consistent. In Chukkun Lal Roy v. Lolit Mohan Roy(1), it was held that a suit for declaration of title to immoveable property is not barred so long as plaintiff's right to such property is a subsisting right and that the right to tiring a declaratory suit is a continuing right so long as the right to the property itself is subsisting. But this dictum of the Calcutta High Court has been dissented from in Rajah of Venkatagiri v. Isakapalli Subbiah(2). Even in the latter case, there is no definite indication as to when the right to sue accrues in such cases. In that case, there was an attachment of property by a Magistrate under section 146 of the Criminal Procedure Code in consequence of the disputes raised by the defendant. The learned Judges say “right to sue certainly accrued on the date of the attachment, which is rightly given as the date of the cause of action.” At least some days before the Magistrate attached the property, the defendant must have begun his denial of the plaintiff's title, and how could the date of the attachment and not the date of the original denial be rightly given as the date of the cause of action? In Ottappurakkal Thazhate Soopi v. Cherichil Pallikkal Uppathumma(3), it was held that “the right of junior members of a tarwad to sue for a declaration that an alienation by the karnavan is not binding on the tarwad, accrues the moment the document is completed and not when the plaintiff obtains knowledge of the alienation.” Now the alienation was evidently made by a registered deed. In that case, the learned Judges held that “the knowledge or ignorance of the plaintiffs of the fact of the alienation having been made does not seem to be material on the question of the accrual of the cause of action for the declaratory suit.” In Dattatraya v. Ramchandra(4) it was held that though the defendants had denied the plaintiffs' title in 1888 before the Survey Officer in a proceeding to which the plaintiffs were no parties, the cause of action for plaintiffs' suit for declaration, filed in 1896, did not; accrue in 1888, but to the year 1892 when the defendants opposed the petition put in by the plaintiffs to the Survey Officer to review his order of 1888 passed ex parte. At pages 537 and 538, the learned Judges make some observations which lead one to think that they were of opinion that time must be counted only from the date when the plaintiffs had notice of the entries in the Survey Officer's register of 1888 and that the conduct and denial of the plaintiffs' title must somehow affect the plaintiffs before the right to sue accrues. In Akbar Khan v. Turaban, the defendant, in derogation of the plaintiffs' title, had the defendant's own name entered in the revenue papers in respect of the property in suit in 1895. In 1903, the plaintiff attempted to have the entry corrected and the defendant resisted the plaintiff. The learned Judges held that there was only one cause of action which arose in 1895, and that the suit, brought within two years of 1903, was barred. They refer to a previous unreported decision of the Allahabad High Court which seems to have taken a different view and try to distinguish it. That unreported decision is set out at page 10 in the notes at the bottom of that page. With the greatest respect, I think that case so reported in the foot-note cannot be distinguished as was distinguished in the principal case. The learned Judges who decided the case reported in the footnote say “the Courts below reckoned as the starting point the order of the Settlement Officer referred to above. No doubt, the plaintiffs might, upon this order being made, have instituted a suit for a declaratory decree, but in our opinion they were not bound to do so. The defendant might have taken no steps to enforce any right under the order of the 5th May 1899, but when he did so, plaintiffs, in our opinion, got a fresh cause of action for asking for a declaratory decree.” Thus, the learned Judges in the footnote case seem to have held that one cause of action accrued when the denial of title took place and a fresh cause of action when the defendant tried to enforce any order made in consequence of such denial of title. In Mamabai v. Acharath Parakat where article 120 was applied to a suit for pre-emption by an ottidar under the customary law of Malabar, it was held that the right to sue to enforce the plaintiff's right to pre-emption accrued only when he had knowledge of the sale of the land by the mortgagor to a third person. I am inclined to think that, where the right to sue for the declaration of title to immoveable property accrues by reason of a mere denial of title behind the plaintiff's back by the defendant, whether the denial is made orally or by writing or by an act before a public officer, plaintiff's right to sue could not be held to accrue till he gets knowledge of such denial. Of course, it might be argued that the denial might have taken place several years ago and the plaintiff cannot be allowed to bring a declaratory suit several years afterwards simply because his knowledge of such denial dated only within six years before suit. But this danger is very easily avoided by the Court using its very wide discretion to refuse declaration in such circumstances, as the granting of declaratory relief is always in the discretion of the Courts (see Section 42 of the Specific Relief Act).

Coming to the facts of the present case, taking the denial of the plaintiff's title by the defendants Nos. 2 and 3 as the date of the cause of action or as the date of a cause of action, the finding of the lower Courts is that the definite denial by the defendants took place in 1908 when the defendants made additions to the building and, when remonstrated with by the plaintiffs, denied the plaintiff's title. But the contesting defendants argued that, when they got into possession in 1898, they must be presumed to have got into such possession adversely to the plaintiffs. Possession is, no doubt, primâ facie notice to all the world of the right under which possession is taken. But is possession taken by a trespasser of a house adverse not only against the usufructuary mortgagee of the house but also against the mortgagor, though the mortgagor might not be entitled to claim possession at once? In other words, the question is whether a trespasser's dispossession of the usufructuary mortgagee of a house is adverse possession against the mortgagor barring also the latter's title to the equity of redemption. On this question, there seems to be a conflict of opinion between two recent decisions of two different Benches of this Court, both cases being reported in the 21st volume of the Madras Law Journal. In Ramasami Chetti v. Ponna Padayachi Abdur Rahim and Ayling, JJ., held that the existence of a mortgage at the time of the commencement of the adverse possession of the mortgaged property cannot prevent the person in possession from acquiring ownership of the mortgaged land both as against the mortgagor and mortgagee unless it be the case that the adverse possession was intended to be limited to the mortgagor's interest only.” In that case the mortgage was a simple mortgage and the mortgagor continued in possession till the trespasser evicted him. In the case reported in page 468 it was held that the interest in the immoveable property which was affected by adverse possession was “that interest and that interest only, which the person who was entitled to immediate possession at the time the adverse possession began had at that time” and that possession adverse to the mortgagor was not adverse to a simple mortgagee. In this case, Parthasarathi Naickan v. Lakshmana Naickan, the learned Judges considered the earlier case Ramasami Chetti v. Ponna Padayachi, but declined to follow the said earlier case. [Ramasami Chetti v. Ponna Padayachi, has been reported in Indian Law Reports, Madras Series, volume 36, page 97.] If, in the present case, the principle of the ruling in Ramasami Chetti v. Ponna Padayachi be followed, the denial of the plaintiff's title must be held to date from 1898 and the present suit for declaration is barred. If, however, the later case is followed, the possession of 1898 will be adverse only to the mortgagee and such possession will not necessarily constitute the denial of the mortgagor's (plaintiff's) title and the suit will not be barred. Ramasami Chetti v. Ponna Padayachi and Parthasdrathi Naickan v. Lakshmina Naickan were cases in which it was contended that the simple mortgagee's rights were’ barred by the fact that the mortgagor who had been in possession until he was dispossessed by the trespasser) had lost his rights by adverse possession. The present is the converse case; here, the usufructuary mortgagee has been dispossessed by the trespasser and the mortgagor who had given up possession to the mortgagee is sought to be barred. But I think the principles to be applied are the same. Is a mortgagor who has transferred possession to a usufructuary mortgagee for 20 years entitled to bring a suit for possession against the trespasser who has ejected the mortgagee within those 20 years? It he is not, it seems to me to be hard on the mortgagor to treat the trespasser's possession as adverse against himself also. Having regard to the conflict of views between Ramasami Chetti v. Ponna Padayachi and Parthasarathi Naickan v. Lakshmana Naickan we deem it advisable to refer the following question for the decision of a Full Bench:—

Where a trespasser dispossesses a mortgagor in possession (the mortgage being simple) or a mortgage in possession (where the mortgage is usufructuary), is such possession of the trespasser adverse against the simple mortgagee in the one case or against the mortgagor who is not entitled to possession in the other case?

My learned brother, notwithstanding Rajah of Venkatagiri v. Isakapalli Subbiah feels some doubt on the question, whether the cause of action for a declaration of title does not arise afresh on each denial of title (so long as the title of the plaintiff subsists), as was held in Chukkun Lal Roy v. Lolit Mohan Roy, bearing in this respect some analogy to a suit for the restitution of conjugal rights which used to be governed by article 35, Limitation Act XV of 1877 (this article has been omitted from the Limitation Act of 1908). We, therefore, refer this other question also to the Full Bench, namely,—

Whether a fresh cause of action for a suit for declaration of title arises from each distinct denial of the plaintiff's title so long as the title itself is not lost, or whether there cannot arise any new causes of action based on new denials of title after the first denial?

Tyabji, J.:— I agree.

C.V Anantakrishna Ayyar for the appellants.

S. Muthia Mudaliyar for the respondent.

This Reference coming on for hearing before the Full Bench, the Court expressed the following

OPINION

Sankaran Nair, J.:— The first question that is referred to us is “where a trespasser dispossesses a mortgagor in possession (the mortgage being simple) or a mortgagee in possession (where the mortgage is usufructuary), is such possession of the trespasser adverse against the simple mortgagee in the one case or against the mortgagor who is not entitled to possession in the other case?”

The facts which gave rise to this reference are these: the plaintiff mortgaged his house with possession for a term which would expire in 1917. The mortgagee was dispossessed by the defendants in 1898. In 1908 they made certain additions to the building, and when the plaintiff remonstrated with them they denied the plaintiff's title to the equity of redemption. The plaintiff brings this suit for a declaration of his title within six years from 1908. The defendants' plea is that limitation for the suit must be calculated from 1898, when they took possession of the property from the mortgagee.

On behalf of the plaintiff it may be argued that, as a mortgagor is not entitled to the possession of his property until he redeems his mortgage, the possession of a trespasser who dipossesses a mortgagee cannot be adverse to him; and, in any event, as the mortgage in the case before us is for a term which has not expired, he could not redeem and recover possession from the trespasser; and limitation cannot run against him when there is no remedy open to him to recover possession of his property. Mr. Anantakrishna Ayyar contends that a mortgagor may sue to recover possession to be delivered to the mortgagee and therefore limitation runs against the mortgagor when a trespasser takes possession of the property from the mortgagee claiming the property himself.

The question when limitation begins to run against the mortgagor when the usufructuary mortgagee is deprived of the possession of the property mortgaged has come often before this Court. The earliest decision is Ammu v. Ramakrishna Sastri. In that case, while the representatives of the mortgagees were in possession of the property, there was an enquiry by an officer of the Government, who held that the mortgaged property belonged to the Government, and it was thereupon granted to them by the Government under separate pattas. The mortgagor was a party to that enquiry. The District Judge following a Bombay decision [Vithoba bin Chabu v. Gangaram bin Biramji], held that there could be no trespass on the title of the mortgagor so long as he had only an equitable interest. This decision was reversed in appeal, the learned Judges holding that, though there might the cases in which the estate of the mortgagee alone was the subject of trespass and the title by prescription might therefore be acquired to the estate of the mortgagee leaving the estate of the mortgagor unaffected, yet there were other cases in which the rights and interests of both the mortgagor and the mortgagee might be invaded and possession held adversely to them both. And in such cases, where the mortgagor may have made over possession to the mortgagee, if the interest of the mortgagor is invaded, although he has not actual possession of the land, his remedy is to bring a suit for the recovery of the interest from which he has been ousted, and be cannot bring a suit for redemption against the wrong-doer within the time allotted for suits for redemption. It will be noticed that in this case a representative of the mortgagee himself was allowed to claim title by prescription. A fortiori, therefore, a stranger in adverse possession of the equity of redemption would be entitled to claim such a title.

In Chathu v. Aku, it was pointed out that the right to redeem was only a right of action and therefore, though a person received the rents and profits from the mortgagee, claiming to be the owner of the equity of redemption, the right of the true owner was not barred unless the claimant had actual possession of the property itself for twelve years.

In Mussad v. The Collector of Malabar, the Court held that the action of the Government in merely declaring the lands to be Government property and conferring a title upon the representative of the mortgagee could not affect the mortgagor's title unless the latter was shown to have been aware of the proceedings, and the decision in Ammu v. Ramakrishna Sastri was distinguished on the ground that in that case there was a formal enquiry to which the mortgagor was a party. In Ittappan v. Manavikrama, Mr. Justice Subrahmanya Ayyar was apparently prepared to go further and to hold that, as the mortgagor having once put the mortgagee in possession had no right to the possession of the property himself until the mortgage was paid off, limitation would not commence to run against him in favour of a trespasser till redemption; but he stated that in the case before him, even if the view adopted in Ammu v. Ramakrishna Sastri be correct, the possession of the person taking the property from the mortgagee would not be adverse until the mortgagor bad notice of it. That was also the opinion of Shephard, J.

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 decisions of the other High Courts also are substantially to the same effect. The decision in Vithoba bin Chabu v. Gangaram bin Biramji, which holds that there can be no adverse possession of an equity of redemption, has been already referred to. It is dissented from by the learned Judges in Ammu v. Ramakrishna Sastri. In a later case, Puttappa v. Timmaji, Sargent, C.J and Candy, J., following the English case of Cholmondeley v. Clinton, held that the possession of a trespasser may be adverse to the mortgagor. In Chinto v. Janki(5), the same question was fully discussed, and Mr. Justice Fulton stated the law in the following terms: “I think 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. Primâ facie, by his act of possession he merely ousts the mortgagee who is entitled to hold the property.” Referring to the plea of the trespasser in that case that he had many years before got his name entered in the Government records as owner and bad since then purported to hold directly under the Government, he pointed out that there was no finding as to when the plaintiff's name was removed from the survey records and whether the plaintiff had any notice of it, and that it was for the defendant to show when he asserted that he was the owner of the property and not the mortgagee; and he referred to the lower Court the issue when the trespasser's possession became adverse to the plaintiff. Telang, J., was strongly inclined to hold that the mortgagor had no right to recover possession of the property so long as the mortgage money was not paid off; but he agreed with Mr. Justice Folton in remitting the issue of the lower Court for trial. The question was again discussed in a more recent case Tarubai v. Venkatrao, where Batty, J., laid down the law correctly in the following words: “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 Purmananddas Jiwandas v. Jamnabai, 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 immediata possession, there must be an unequivocal ouster preventing the possession of the mortgagor from continuing altogether by leaving no 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 unmistakably displaced as if there had been no mortgagor 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.”

There was only one Allahabad case cited—Ismdar Khan v. Ahmad Husain, where also the same principle is laid down that primâ facie the possession of the trespasser is not full proprietary possession but was possession of a limited nature which would have the effect ordinarily of extinguishing the limited interest of the mortgagee and vesting that in the defendant; but there may be cases where the adverse possession against; the mortgagee would also be adverse possession against the mortgagor, as, for example, where the mortgagor is entitled to immediate possession or where, the possession of the trespasser is coupled with a denial of the title of the mortgagor.

These cases 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 to the knowledge of the mortgagor. These decisions were apparently not cited before the learned Judges who made the reference. They are in accordance with the English law also. That an equity of redemption may be barred, has been finally decided in England. In the leading case of Cholmondeley v. Clinton, Lord Chancellor Eldon said: “I say, without entangling mysalf with the difficulties about seisin and intrusion, I am of opinion, that the adverse possession of an equity of redemption for twenty years is a bar to any other person claiming that equity of redemption;. and it is an adverse possession which produces the same effect as those things you call abatement, intrusion and disseisin which belong to legal estates. It is an adverse possession which has the same effect, and, for the peace of families, and for the peace of the world, I think, ought to have the same effect; and therefore, without, going through more of the cases, I submit it to your Lordships, as my humble opinion upon this grave and important question, that this bill cannot be maintained.” The owner of the equity of redemption had full notice of the claim of the trespasser.

These decisions also seem to be 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 contradistinction to mortgage property. Nor is this sufficient; as his possession may be consistent with the mortgagor's title, the mortgagor must obviously have notice that be is holding it as absolute property in denial of any right in him. Otherwise no laches can be imputed to him and the possession cannot be said to be adverse.

It is argued that, as the mortgagor is not entitled to sue the trespasser for possession, possession can never be adverse. A mortgagor, no doubt, must be entitled to protect himself against the loss of his property by adverse possession. In the judgment in Ammu v. Ramakrishna Sastri, it is stated that be may sue for the recovery of his interest. This apparently proceeds on the ground that by mortgage a person transfers only an interest and not the legal estate as in English law. In Tarubai v. Venkatrao, Mr. Justice Batty says he could sue for possession. This proceeds probably on the ground that the mortgagor is bound to secure possession to the mortgagee. Mr. Anantakrishna Ayyar contends that a mortgagor may by impleading the mortgagee obtain a decree for the surrender of the property to the latter. Suits by persons interested for delivery of properties to a trustee of an endowment, by junior members of tarwads for delivery of properties improperly alienated to karnavans, are analogous instances. The question what the proper remedy is, does not however arise on this reference.

The reply to the reference is that possession may be adverse tout whether it is so or not in any case will depend upon the facts of each case. On the facts stated in the order of reference, possession of the trespasser was not adverse from 1898 to 1908, but it became adverse in 1908. The question whether the possession of a trespasser who dispossesses a mortgagor in possession is adverse against a simple mortgagee does not arise in the case and we express no opinion with regard to it.

As the cause of action in this case arose only in 1908, the second question, whether a fresh cause of action arises from each distinct denial of the plaintiff's title, also does not; arise in the case and we express no opinion with regard to it.

White, C.J:— I agree.

Oldfield, J.:— I concur.

N.R