IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.193 of 1998. Date of decision: 09.05.2011 Dalip Singh & Others … …Appellants Versus Smt.Tulsan Devi & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellants: Mr.K.S. Kanwar, Advocate. For Respondents No.2 to 4: Mr.K.D. Sood, Advocate. 10, 12, 15, 25, 27 to 30. Dev Darshan Sud,J. This is the plaintiff’s appeal against the judgment and decree of the two courts below dismissing his suit for grant of decree for declaration that he has become the owner to the suit land comprised in Khatta Khatauni No.105 min/558 bearing Khasra No.2076/12/1, measuring 50-04 Bighas, situated in village Shaoga, Sub Tehsil Kamrau, Tehsil Paonta Sahib, District Sirmaur, as per Jamabandi for the year 1988-89 and a mandatory injunction directing respondents No.1 to 14 in the suit to incorporate the plaintiff as owner in possession of the land in the revenue record. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. The case pleaded by the plaintiff is that this land was mortgaged with possession by the defendants in March, 1968. Lateron in the month of June, 1970 it was redeemed by the predecessor-in- interest of defendants No.1 to 13 and 14 when the mortgaged amount is supposed to have been repaid. However, the plaintiff continued in possession of this land with the knowledge and consent of these defendants who did not protest and he performed all those acts on the land which were consistent with ownership only. He pleads that he is the owner in peaceful, open and continuous possession to the knowledge of the defendants and has thus become owner by asserting his hostile title. 3. In the written statement, the ground pleaded by the defendants is that the mortgage was never redeemed. The plaintiff is in permissive possession of the land and therefore no decree can be granted. 4. On the settled issues, the learned trial Court holds that redemption is not proved, mutation was rejected because of non-appearance of both the parties. The Court then proceeds:- ”Therefore, Ex.DW-2/A is still in existence. No doubt, mortgage was not effected by all the co-sharers. But one thing is clear that plaintiff was given the possession with the consent of the predecessor-in-interest of the defendants No.1 to 13 and Dhyan Singh.” 3 5. The Court thereafter holds that the possession is permissive. The appeal preferred by the plaintiff has been dismissed by the learned appellate court again holding that the redemption is not proved. Infact, the learned appellate Court holds:- “13. Coming to the redemption part, this, too, seems to me a cock and bull story. The reason is simple. If, we remember right, in para-1 of the plaint, the case of the plaintiff is that the suit land was redeemed in the month of June, 1970 by returning the mortgage amount. But when he (plaintiff) appears in the witness box, he has different story to tell. As noticed above, he says that the suit land was mortgaged with him for Rs.500/-, but the mortgage was cancelled on objection by the other owners and thereafter he paid back the mortgage money to the mortgagers. He next says that the mortgage was cancelled in the year 1969, in his statement, on oath, he no where says that the suit land was redeemed in the year 1970. Though, when cross-examined, he says that it was redeemed in 1969 and he made the payment of the mortgage money in his house, he admits that there was no receipt of the payment of the mortgage amount. This seems to be unbelievable and inconceivable for the reason that once he entered into the possession of the suit land as mortgagee by way of a registered mortgage deed, there is no reason why at the time of alleged redemption, he should not have obtained a receipt or a document of verifiable nature. In the absence of proof of redemption of 4 the mortgage, naturally, the plaintiff will be deemed to be continue in possession as a mortgagee, especially, when Jagat Ram (DW3) also admits, in his cross-examination, in so many words, that the suit land is still in possession of the plaintiff as a mortgagee.” 6. I have reproduced these findings in some detail since learned counsel has emphasized that the land was infact redeemed and once the mutation for registering the mortgage was rejected his possession became hostile to that of the true owner. I note that both the Courts below have held the possession not adverse possession to be that of the predecessor-in- interest of the appellants who was the plaintiff before the trial Court. 7. This appeal was admitted on 7.5.2004 on the following substantial questions of law:- “1. Whether a mortgage created by a registered document be redeemed orally or by execution of any unregistered document/receipt therefore? 2. Whether learned first appellate court has erred in returning the finding that appellant is a mortgagee on the suit land even though the learned trial court has not specifically believed the mortgage and no appeal was filed by defendants against the judgment, decree passed by learned trial Court? 5 3. Whether the possession of the mortgagee on mere redemption of mortgage would become adverse to the mortgagor?” QUESTION No.1: 8. On the first question, all I need say is that it is a finding of fact arrived at by both the Courts below and cannot now be urged in second appeal. Both the Courts below have held on the evidence that there has been no redemption and therefore, this question does not arise for determination. QUESTIONS No.2 and 3: 9. Both these questions may be taken up profitably for discussion together. These questions need not detain this Court any further. The appellate Court holds that the predecessor-in-interest of the appellants herein is in possession as a mortgagee. In these circumstances, the appellants cannot claim adverse possession. A reference in this behalf may be made to the decision of the Supreme Court in Ishwar Dass Jain (dead) through LRs. vs. Sohan Lal (dead) by LRs., AIR 2000 SC 426, holding:- “8. The following points arise for consideration: (1) … … … … … … … … … … … … … … (2) … … … … … … … … … … … … … … (3) … … … … … … … … … … … … … … (4) … … … … … … … … … … … … … … (5) … … … … … … … … … … … … … … (6) Whether the mortgagee who got possession of the entire 6 property under the deed of mortgage could be permitted to deny the title of the mortgagor either wholly or partly? POINT 6: 32. The appellate Court, in our view, went wrong in thinking that the plaintiff had only a half share in the property. The defendant's title was a derivating title as mortgagee. Having came into possession of the whole property as a mortgagee from the plaintiff, treating plaintiff as full owner it was not open to the defendant to question the title of the plaintiff. In Tasker v. Mall, (1836) 3 My 8 Cr 63 : 5 LJ Ch 321, Lord Cottenham said : "To him (mortgagee) it is immaterial, upon repayment of the money, whether the mortgagor's title was good or bad. He is not at liberty to dispute it any more than a tenant is at liberty to dispute his landlord's title." A usufructory mortgagee cannot deny the title of his mortgagor. Nor can he set up adverse possession unless he actually leaves the holding and re- enters under a different status (Jainandan v. Umrao) (AIR 1929 All 305) and (Shriram v. Dhan Bahadur Singh) AIR 1965 All 223.” (pp-428-429, 433) 10. Learned counsel appearing for the respondents also submits that a suit for declaration of title cannot be based on adverse possession. He relies upon the decision of the High Court of Punjab and Haryana in 7 Bhim Singh & Ors. vs. Zile Singh & Ors., AIR 2006 Punjab and Haryana 195. 11. I am not giving any findings on this aspect of the judgment which learned counsel appearing for the appellants submits is contrary to the decision of the Delhi High Court in Manmohan Service Station vs. Mohd.Haroon Japanwala, AIR 1994 Delhi 337. However, all that I need say is that the question already stands decided by the Supreme Court in Ishwar Dass Jain’s case. In this view of the matter, I do not find any force in this appeal which is dismissed. May 9, 2011 (Dev Darshan Sud) (aks) Judge.