Walmsley, J.:— The plaintiffs are the appellants. Their suit was for establishment of their title as against defendants Nos. 6 to 11, and for recovery of khas possession as against the tenant defendants Nos. 1 to 5. They lost in the first Court, and on appeal they succeeded in part: they now prefer this appeal in regard to the part of their claim that has been disallowed.
The property in suit is two-thirds of a plot measuring 10 bighas 16 cottas. This portion was bought by one Syama Charan Mukerjee in 1273 B.S He died leaving two sons, Akhoy and Abhoy. They together mortgaged it to Jiban Krishna Roy, father of plaintiffs Nos. 1, 2 and 3, and of defendant No. 12, and grandfather of plaintiffs Nos. 4 and 5. The mortgage was dated 1297. Jiban got a decree on the mortgage in 1896 and bought the mortgaged property in execution on. January 12, 1897.
Meanwhile Abinash, the predecessor of defendants Nos. 8 to 11, had obtained a decree against Abhoy alone, and bought the interest of Abhoy in an execution sale on June 9, 1894. At that time the tenants under Akhoy and Abhoy, namely, Chaitanya, defendant No. 1, Sridhar, defendant No. 5, and Krishna, the father of defendants Nos. 2, 3 and 4, were in occupation of the land. Abinash took a kabuliat from Krishna and Sridhar. Although Abinash had bought Abhoy's interest before Jiban brought his suit, he was not made a party to that suit.
Akhoy also dealt with his share, but after the institution of the suit by Jiban: he sold it on Falgoon 2 and 3, 1304, by separate kobalas to Ishan, predecessor of defendant No. 6, and Hem Chandra, defendant No. 7. On Aghrayan 28, 1306, Chaitanya and Sridhar executed a kabuliat in favour of Ishan and Hem Chandra.
The case for the plaintiffs is that Jiban obtained possession of the property after his purchase at the auction sale, and that he received rent from the tenants amicably and by suit, but when he brought a suit in 1913 (No. 885 of 1913) for recovery of the rents of 1317 to 1320 the tenants denied that he was their landlord, and in consequence the plaintiffs assert that the tenant defendants have forfeited their right to remain as tenants of the land.
The claim of the plaintiffs is, therefore, twofold; for a declaration of their title as against defendants Nos. 6 to 111 and for khas possession as against the tenant defendants Nos. 1 to 5.
The decree which they have obtained is in respect of Akhoy's half, but it does not give them khas possession. The objects of the appeal, therefore, are firstly a declaration of title in regard to Abhoy's shares against the successors of Abinash, and, secondly, recovery of khas possession as against the tenant defendants in regard to the whole area.
I will deal first with the claim to title as regards Abhoy's share. The first argument on this subject is that, granting that Abinash was not bound by Jiban's mortgage decree, the right which he held was no more than it would have been if he had been made a party, that is to say, he had a right to redeem and he and his successors cannot retain possession without redeeming the plaintiffs mortgage. Reliance is placed on two Bombay decisions. Mohan Manor v. Togu Uka and Dadoba Arjunji v. Damodar Raghunath. In the first case the lower Court held that as the plaintiff would not satisfy the defendant's mortgage, the suit must be dismissed. The High Court held that it was not for the plaintiff to satisfy the defendant, but for the defendant to have an opportunity of satisfying the plaintiff, and so plaintiff was given a conditional decree. In the second case a conditional decree was granted by the lower Court, and when the plaintiff appealed, the High Court said that the defendant was clearly entitled to an opportunity of redemption, and then proceeded to examine the terms. The question under consideration, therefore, was different from the one before us, and it is not necessary to examine the decisions further, or to refer to the comments upon it in the case of Entholi Kizhakkikandy Kanaran v. Vallath Koylil Unnooli.
Another case quoted to us was that of Protap Chandra Mandal v. Ishan Chandra Chowdhry but that was a case in which the plaintiff was the purchaser of the equity of redemption, and the decision is of no assistance in the present case. Another case—that of Murugaser Marimuttu v. De Soysa is complicated by some of the facts, and it is also a case in which the parties stand in the reverse position.
On the other hand there are two Full Bench decisions of the Allahabad High Court, in which the facts appear to be exactly similar to those of the present case they are Hargu Lal Singh v. Gobind Rai and Madan Lal v. Bhagwan Das. In the former case the learned Judges said “The plaintiff can only succeed in this suit for possession on proof of title to a present possession at the date of his suit. His simple mortgage did not entitle him to possession as against any one. His decree for sale, being in a suit to which these defendants were not parties, had no effect as against them, and his purchase at the sale held under the decree conferred on him no title as against these defendants. The result is that the plaintiff had no title to possession at the commencement of the suit against the defendants, and his suit was properly dismissed.” These remarks were amplified in the later case. In the present case too the mortgage was a simple one, and the plaintiffs asked for an absolute decree and not a conditional one. My learned brother has dealt with the decisions in this Court, and it is not necessary for me to add to what he has said. I admit that the earlier of the Bombay cases appears to be in favour of the plaintiff's contention, but I think we should accept the principle laid down in the Allahabad cases, more especially because in the present case twenty years were allowed to pass between Jiban's purchase and the institution of the suit.
As against the successors of Abinash it is also said that plaintiffs have acquired title by adverse possession. The learned Judge's remarks on this subject are rather confused, but as I understand them he ends by accepting the finding of the Munsiff at least to the extent that the plaintiffs had not proved possession for the statutory period.
Another argument put forward was that the lower Appellate Court was wrong in treating possession as coming to an end when rent ceased to be paid: it is said that he should have held that the possession ceased when, in the suit for the rent that was not paid, the tenants denied the plaintiff's title. This argument, however, was not set out in the grounds of appeal: so we did not allow it to be pressed.
The one question that remains is whether in regard to Abhoy's share the plaintiffs should be given khas possession. The learned Judge refused the prayer because Sridhar was not a party to the rent suit in which the tenants denied the plaintiff's right. He clearly should have been made a party to that suit, for he is and was one of the tenants on the land. It is argued that the disclaimer by one of the joint tenants is operative as against all if the making of it was within the scope of his authority. Such an argument involves an investigation into the scope of the authority, and no investigation has been made because the argument was not put forward in either of the lower Courts. I think it is too late for the plaintiffs to ask us now to order such an enquiry to be made.
The result is that the plaintiff's appeal fails, and it must be dismissed with costs.
Suhrawardy, J.:— The only substantial question raised in this appeal is “whether a mortgagee who has purchased the mortgaged property in execution of his mortgage decree is emitted to recover possession of it from a transferee of the equity of redemption subsequent to the mortgage who was not a party to the mortgage suit, subject to the right of the latter to redeem the mortgage.”
The High Courts in India are not in agreement on this point. The Bombay and Allahabad High Courts have taken diametrically opposite views, and the Madras High Court has sided with Allahabad: see Dadoba Arjunji v. Damodar Raghunath, Madan Lal v. Bhagwan Das, Entholi Kizhakkikandy Kanaran v. Vallabh Koylil Unnooli.
On an examination of the cases it appears that the divergence of opinion is due to the question whether the purchaser, in the above circumstances, purchases the equity of redemption as it stood at the date of the mortgage, which is the ratio decidendi of the Bombay cases, or whether, in view of section 85 of the Transfer of Property Act and the general law regarding a decree of no value against one not a party to it, he purchases only the right, title, and interest of the judgment-debtor mortgagor at the date of the auction sale by Court, which seems to be the point of view of the Allahabad cases.
In this Court also there is a conflict of opinion and some of the cases cannot be reconciled. I will not attempt to notice all the cases bearing on the point, but refer to only some of recent date that lay down opposite views.
In the case of Aghore Nath Banerjee v. Deb Narain Guin Rampini and Woodroffe, JJ. following the Allahabad cases above noticed, held that a purchaser in execution of a mortgage decree cannot recover possession, from a transferee of the equity of redemption who was not a party to the mortgage decree. In the same Volume at page 403, Mookerjee and Holmwood, JJ. held in the case of Gangadas Bhattar v. Jogendra Nath Mitter, that such a purchaser is entitled to recover such possession subject to the defendant's right to redeem (see also Protap Chandra Mandal v. Ishan Chandra Chowdhry and Grish Chunder Mondal v. Isivar Chunder Rai.
In the case of Habibullah v. Jugdeo, Rampini and Brett, JJ. held that a purchaser in execution of a mortgage decree has no right to retain possession of the property obtained through Civil Court against a purchaser of the equity of redemption who was not a party in the suit on the mortgage in the same volume at page 612 in the case of Jugdeo v. Habibullah the dispute between the same parties again came for consideration, and Brett and Mookerjee, JJ. held that a purchaser at the mortgage sale is entitled to recover possession of the property subject to the exercise of the right of redemption by the purchaser of the equity of redemption. It is to be noted that Brett, J. was a party to both these decisions which apparently do not appear to be in unison on principle, and similarly O'Kinealy, J. was one of the Judges who decided the two cases reported in the 4th volume of the Calcutta Weekly Notes above referred to. It seems logically fallacious to attempt to reconcile cases which lay down that such a transferee is entitled to recover possession from a purchaser under a mortgage decree dispossessing the former from the mortgaged property and the cases which allow the purchaser to recover possession of such property from the transferee subject to the latter's right to reddens. The views consistently expressed by Rampini, J. find support in an earlier case, Radha Pershad Misser v. Monohur Das, where Garth, C.J expressly laid down that the purchaser at a mortgage sale has no right to sue for the khas possession of the property as against a transferee of the equity of redemption who was not a party to the suit on the mortgage, but his only remedy is to bring a suit against such trausferee to have his right declared to sell the property to satisfy his mortgage debt.
In this unsettled state of the law, if it were incumbent upon us to come to a decision on this question it would have been necessary to refer the matter to a Full Bench, but we are relieved of this necessity by the special facts of this case. The equity of redemption of one of the mortgagors Abhoy was purchased by one Abinash, the predecessor-in-interest of defendants 8 to 11 in this case, in 1894 in a Court sale, and Abinash was in possession of Abhoy's share in 1897 when the plaintiff purchased the property in execution of the mortgage decree. Abinashr and his successors continued in possession through defendants Nos. 1 to 5, until the date of the present suit, and the plaintiffs did not take any steps for twenty years to recover possession from him. In this state of things it may be safe to presume, and it is deducible from the findings of the lower Appellate Court, that Jiban Krishna, the predecessor of the plaintiff, was aware when he brought the suit on his mortgage, that Abinash was in possession of a part of the property, and still, he did not make him a party in the suit. That being so, the case of Aghore Nath Banerjee v. Deb Narain Guin, is an authority for the proposition that in such circumstances the plaintiff cannot sue for recovery of possession. The case of Gangadas Bhattar v. Jogendra Nath Mitter, which holds the contrary view has for its special feature the fact that the mortgagee at the time of the suit had no notice of the interest of the transferee of the equity of redemption. The present case, therefore, seems to be covered by the former decision and the plaintiff's claim must fail. It was found by the First Court that the plaintiff's claim was barred by limitation, inasmuch as he was never in possession of this half share of Abhoy since his purchases in 1897. The lower Appellate Court has not reversed that finding, but assuming the plaintiff's case to be true has held that the plaintiff is not entitled to khas possession. In this view also, the plaintiff's suit is liable to be dismissed.
As regards the other points urged in this appeal I concur with my learned brother in the conclusions he has arrived at. In the result I agree in dismissing this appeal with costs.
E.H.M
Appeal dismissed.