Case: Ram Ran Bijai Singh And Others Vs. Behari Singh Alias Bagandha Singh

even on the case with which the appellants themselves came into Court. The plaintiffs stated in their plaint that the mortgagees had, so far as they were concerned, fulfilled their obligations and had put the mortgagors in possession of such property as they could and that it was the contesting defendants who putting forward claims to occupancy rights resisted their entry into possession. This is, therefore, not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed the right to retain possession of the property by asserting a title which was as much against the mortgagee as against the mortgagors. In this context, the plea made by the plaintiffs relevant to the character of the possession of the contesting defendants assumes crucial importance, for if they were admitted trespassers then they could not be said to hold the property on behalf of the mortgagors and the entire basis of the argument as to the property being in the khas possession of the plaintiffs would disappear. Paragraph 10 of the plaint reads :"..... It is quite clear that the defendants 1st party or 2nd party have no kasht right in the disputed lands as against the plaintiffs, and after redemption of the rehan, their possession and occupation are quite wrongful".20. They expanded the idea here contained in the next paragraph which we shall set out in full:"On 8-6-41, in the year 1941 - the plaintiffs, on payment of the entire rehan money, and redeemed the rehan property under the rehan bond dated 10-6-1907 and entered into possession and occupation of the rehan property covered by the said bond, but when the plaintiffs wanted to enter into possession and occupation of the disputed land entered in schedule No. 3, the defendants 2nd party in collusion and concert with the defendants 1st party did not allow the plaintiffs to enter into possession and occupation and there was fresh invasion against the title of the plaintiffs."21. It is hardly necessary to add that the defendants lst and 2nd parties besides asserting their right to be in possession lawfully as tenants cultivating raiyati land, also asserted that they had acquired that right on account of adverse possession for more than 12 years and "on account of being settled raiyats which the maliks had all along been admitting etc. ........." The relevant issue framed in regard to this point was Issue No. 9 which read :"Have defendant 2nd party or lst party acquired any right in the suit land by adverse possession?"and it was for the consideration of this issue that it was necessary for the Court to ascertain the date when their possession became adverse. The finding recorded by the learned trial Judge was in these terms :"......The rehandars (lst and 2nd) ......... had no right to create tenancies in the zerait land in suit and whatever tenancies might have been created by them during their possession, ipso facto came to an end when the mortgage was redeemed by the plaintiffs in 1941. The possession of defendants 1st party or defendants 2nd party became that of a trespasser as against the plaintiffs on the redemption of the rehan in 1941; and the suit having been instituted within 12 years from the date of redemption, the suit is not barred by limitation and the plaintiffs are entitled to recover khas possession ......... The plaintiffs are entitled to treat both of them as trespassers and their possession would become adverse as against the plaintiffs from the date of redemption i.e., from 1941. The suit having been instituted within 12 years from 1941, the plaintiffs right to recover khas possession of the suit land will therefore not be barred by limitation",and the same idea is repeated in a later passage of the judgment. This aspect of the case has not been dealt with in the judgment of the High Court apparently because the title of the contesting defendants based on adverse possession for over 12 years was not pressed before the High Court in view of its finding on the other parts of the case.21. The authorities relied on by Mr. Sarjoo Prasad only go to this extent that where nothing else is known except that a mortgagee continues in possession of the property after redemption, the right of the mortgagor to sue for recovery of the property is governed by the 60 years rule based on the continuing relationship of mortgagor and mortgagee between them. These very authorities however show that if the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the knowledge of the mortgagor, his possession would not thereafter continue as mortgagee but as a trespasser and the suit for recovery of the property from him would be governed by Art.144 the starting point of limitation being the date at which by the overt manifestation of intention the possession became adverse. It is a fortiori so in cases where what the Court is concerned with is not possession of the mortgagee but of someone else, such as in this case, the tenants claiming occupancy rights. When the mortgage was redeemed they resisted the mortgagors claim to possession and asserted their right to remain in possession as kasht tenants. It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were sped and possession sought to be recovered from them. In these circumstances we consider that it is not possible for the appellants to contend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor. Section 6(1) (c) cannot, in terms, therefore, apply since the mortgagor-mortgagee relationship did not subsist on January 1, 1955 even if the construction which learned Counsel for the appellant pressed upon us was accepted.22.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The possession of the contesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came into Court. The plaintiffs stated in their plaint that the mortgagees had, so far as they were concerned, fulfilled their obligations and had put the mortgagors in possession of such property as they could and that it was the contesting defendants who putting forward claims to occupancy rights resisted their entry into possession. This is, therefore, not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed the right to retain possession of the property by asserting a title which was as much against the mortgagee as against the mortgagors.The authorities relied on by Mr. Sarjoo Prasad only go to this extent that where nothing else is known except that a mortgagee continues in possession of the property after redemption, the right of the mortgagor to sue for recovery of the property is governed by the 60 years rule based on the continuing relationship of mortgagor and mortgagee between them. These very authorities however show that if the mortgagee by some overt act renounces his character as mortgagee and sets up title in himself, to the knowledge of the mortgagor, his possession would not thereafter continue as mortgagee but as a trespasser and the suit for recovery of the property from him would be governed by Art.144 the starting point of limitation being the date at which by the overt manifestation of intention the possession became adverse. It is a fortiori so in cases where what the Court is concerned with is not possession of the mortgagee but of someone else, such as in this case, the tenants claiming occupancy rights. When the mortgage was redeemed they resisted the mortgagors claim to possession and asserted their right to remain in possession as kasht tenants. It was on the basis of their possession being wrongful that a claim was made against them for mesne profits and it was on the footing of their being trespassers that they were sped and possession sought to be recovered from them. In these circumstances we consider that it is not possible for the appellants to contend that these tenants were in possession of the property on behalf of the mortgagor and in the character of their rights being derived from the mortgagor. Section 6(1) (c) cannot, in terms, therefore, apply since the mortgagor-mortgagee relationship did not subsist on January 1, 1955 even if the construction which learned Counsel for the appellant pressed upon us was accepted.