Harasit Golder v. Jaladhar Biswas

The Judgment of the Court was as follows:—

Mitter, J.:— The relevant facts necessary for deciding the question of limitation which falls for determination in this appeal may be briefly stated thus:— Rati Kanta (the predecessor-in-interest of Defendants Nos. 1 to 5) and Shambhu (the predecessor-in-interest of Defendants Nos. 7 to 11) mortgaged the disputed lands to the father of Plaintiffs Nos. 1 and 2 in the year 1300 B.S Rati Kanta and Budhai executed another mortgage in favour of the Plaintiff No. 1 in the year 1304 B.S Plaintiff's father brought a suit on the first mortgage on the 12th April 1906, obtained a decree on the 24th June 1907 and purchased the mortgaged property on the 18th July 1907 in execution of the decree. The sale was confirmed on the 7th October 1909 and there was formal delivery of possession om the 19th July 1910. During the pendency of the suit on the mortgage Rati Kanta and Budhai executed a mortgage in favour of Defendants Nos. 12 to 14 and the mortgagees Defendants Nos. 12 to 14 entered into possession. This mortgage of 1313 was fully paid off. The plaint as originally filed was amended and the Plaintiff prayed for recovery of joint possession of the half share of 24 bighas of land with Budhai Defendant No. 6.

This suit was filed on the 25th May 1921. The Munsif who tried the suit in the first instance held on the 24th November 1922 that the valuation of the suit was beyond the pecuniary jurisdiction of the Court and returned the plaint for presentation to the proper Court. The plaint was refiled on the 17th January 1924. The lower Appellate Court has given a partial decree to the Plaintiffs and has directed that Plaintiffs are to recover joint possession with Defendant No. 6 of one-half of sixteen bighas.

In appeal to this Court by Defendants Nos. 1, 2, 12, 13 and 14 it is contended that there has not been a proper trial of the question of limitation as the possession of Defendants Nos. 12 to 14 on the basis of mortgage of 1313 became adverse to Rati Kanta the mortgagee from the date the said mortgage was paid off and if it is found that the payment was made more than twelve years prior to the institution of the suit under Art. 137 of the 1st Schedule to the Limitation Act, the suit would be barred by limitation and it is argued for the Appellant that the case should be sent back for a proper trial of the question of limitation.

It is conceded by the Appellant that for the purpose of determining the question of limitation the 25th May 1921, the date on which the plaint was originally filed might be taken to be the date of the institution of the suit and if the payment of the mortgage of 1313-1906 was made beyond twelve years of this date the suit is barred.

It is true the judgment-debtor under the decree in mortgage suit instituted on the 12th April 1906 was not in actual possession at the date of the sale but the mortgagee of the judgment-debtor was in possession. It is said that against such mortgagee symbolical possession of 19th July 1910 is not equivalent to actual possession, for the mortgagee would hold adversely to the mortgagor Rati Kanta after the payment of the mortgage-debt. It is said that symbolical possession cannot operate as actual possession against persons not parties to the suit in which the decree which resulted in the sale was made and reliance is placed on the two Full Bench decisions of this Court in Jaggabondhu Mukerjee v. Ram Chunder Bysack (1) and Juggobondhu Mitter v. Purnanand Gossami (2). In the last case the Defendants were the judgment-debtors and the ijaradar under him. The suit was held not barred as it was brought within 12 years from the date of symbolical possession.

In our opinion the true rule deducible from the authorities is that where in execution of a decree symbolical possession is delivered of immoveable property to the person entitled to possession thereof and such person brings a suit for recovery of actual possession the symbolical possession is deemed equivalent to actual possession as against the judgment-debtor or his representatives and the suit is brought in time if it is brought within twelve years from the date of the said symbolical possession. The mortgage in favour of Defendants Nos. 12 to 14 having been executed during the pendency of the suit on the mortgage of 1300 they are bound by the decree in execution of which symbolical possession was delivered. They are affected by the doctrine of lis pendens and symbolical possession as against them would be equivalent to actual possession and in this respect their position is not different from that of the judgment-debtor of the mortgage-decree in the suit of 1906. Further in the present case the Defendants Nos. 12 to 14 do not claim to be in possession of the disputed property adversely to the judgment-debtor, for they entered into possession, on the footing of mortgage by the judgment-debtor. For the possession by mortgagee of mortgaged property is not primâ facie adverse to the mortgagor. It is not said in this case that the Defendants Nos. 12 to 14 set up a hostile title to their mortgagor Rati Kanta but it is argued that if the mortgage-debt was paid of in respect of the mortgage in favour of Defendants Nos. 12 to 14 the possession of the latter became adverse to the mortgagor Rati Kanta from that date. We are unable to accept this contention; for the mere payment of the mortgage money without more does not amount to adverse possession by the mortgagee after the date of payment. Under Art. 148 of the first Schedule to the Limitation Act the mortgagor gets 60 years from the due date of the mortgage during which to redeem the mortgaged property and admittedly this time has not yet expired.

In this view we think the judgment of the lower Appellate Court is right and must be affirmed with costs.

Jack, J.:— I agree.

S.C.M