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TMI Blog1960 (5) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... the present action (Title suit No. 49 of 1951) was two strips of land forming part of plot No. 309 situate in village Pakhtiarpur. The first strip measures 11 kathas 16 dhurs and 16 dhurkis constituting the northern half of the eastern half and the second strip measuring 91/2 decimals, equivalent to 3 kathas 1 dhur, forms the south-eastern portion of the eastern half, of the aforesaid plot. The plaintiffs have attached to their plaint a map showing the configuration and the subdivisions of the plot. In that map the entire plot No. 309 is divided into two halves western and eastern, the eastern half is indicated by letters ABCD. The first strip of land in dispute k indicated by letters ABEF and the second by letters DFGH. At the time of hearing the defendant appellant laid no claim to the first strip measuring 11 kathas and odd. This appeal is restricted to the second strip measuring 3 kathas 1 dhur, which is shown by letters DFGH. 4. The suit was first filed in the Court of Munsifat Barh on 8th January, 1949. The learned Munsif held that the proper valuation of the subject-mutter of the suit was ₹ 8000 and not ₹ 1500 as stated by the plaintiffs, and, therefore the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ites that there was a partition between the sons of Darshanand Hira, and according to this partition the western half of plot No. 309 was allotted to defendants Nos. 9 and 10, which they purported to convey under the aforesaid sale-deed and the eastern half to defendants Nos. 3 and 4 and his sons. 9. I may state here that the judgment-debtor filed title suit No. 19 of 1934 for setting aside the ex parte decree passed in favour of the plaintiff in Money suit No. 340 of 1930 aforesaid on the ground of fraud. This suit was dismissed on 15-5-1935, and an appeal from that decree also failed on 31-1-1936. 10. On 13-7-1936, that is, after the auction sale in favour o the plaintiff, defendants Nos. 3 and 4 executed a mortgage bond in favour of Brijnandan (defendant No. 15) for a sum of ₹ 400 in respect of the entire eastern half of plot No. 309. 11. When the judgment-debtors failed to get the decree set aside, the plaintiffs applied for and obtained delivery of possession through Court over the entire plot No. 309 on 5-4-1938. After the delivery of possession, Brijnandan and Ajodhya presented an application under Order 21, Rule 100 of the Code of Civil Procedure on 21-11-19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... favour of Satyanarain and Raghunandan, The third and the last sale deed relates to J?CE in favour of a third person, not appellant here. 14. The dues under the ijara deed dated 4-6-1943 which had been executed for redemption of the prior mortgage bond of the year 1927 were paid off by the aforesaid purchasers on 9-6-1946. 15. On 6-6-1946 defendants Nos. 3 and 4 executed a mortgage bond in favour of Ajodhya and his son for a sum of ₹ 2000 in respect of the self-same area of 11 kathas 16 dhurs which had already been made the subject-matter of mortgage under the mortgage deed dated 3-11-1945 in favour of the principal defendants first party. This ijara had to be made because it was alleged that Ajodhya did not quit possession over 11 kathas 16 dhurs. 16. Now it is the admitted case of the parties that plot No. 409 had been partitioned half and half between the heirs of Darshanand Hira, and according to this partition the western half was allotted to defendants Nos. 9 and 10 (pro forma defendants first party) and the eastern half to defendants 3 to 8 principal defendants second party). It will further appear that prior to the auction purchase by the plaintiffs, defendan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat, therefore, the plaintiff's were entitled to recover possession of the disputed land from them. 18. Three sets of written statements have been filed, one on behalf of the principal defendants first party, the other on behalf of the principal defendants second party and the third on behalf of the proforma defendants second party. Their defence is more or less common. They pleaded limitation and urged that the plaintiffs' title, if any, was extinguished by adverse possession of the appellants and the principal defendants second party, They denied that the plaintiffs had obtained delivery of possession through court on 5-4-1938 and alleged that the plaintiffs were never in possession of the disputed land and that the mortgagees and after them the principal defendants remained in continuous possession of the same. They also pleaded estoppel and waiver. The appellants further alleged that, subsequent to the redemption of ijara in 1927, they raised pucca structures on a portion of the land purchased by them at ₹ 15,000, and that the plaintiffs were aware of this construction and never objected to the same, and consequently they were estopped from denying the title ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaintiffs got delivery of possession through Court on 5-4-1938 and that they remained in possession of the disputed land continuously until 6-11-1945 when they were dispossessed by the appellants. 22. A question was mooted at the bar whether the plaint of this suit should be deemed to have been presented on 8-1-1949 or 10-4-1951. The suit was filed first in the Court of the Munsif at Barh on 8-1-1948 (1949?). The learned Munsif held that the Suit was beyond his pecuniary jurisdiction. He accordingly returned the plaint on 30-3-1951. The plaint was refiled in the Court of the Subordinate Judge at Patna on 10-4-1951. The plaintiffs alleged that they were bona fide prosecuting the suit with due diligence in the court of the Munsif at Barh, and accordingly they were entitled to the benefit of the time between the institution of the suit in the wrong Court and return of the plaint for the purpose of limitation. On the other hand, learned counsel for the appellants contended that the plaintiffs wilfully and intentionally put grossly low value on the suit land with the deliberate object of pleading the bar of res judicata. He pointed out that the Munsif at Barh had no pecuniary jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in Court as hereinafter provided. Under Clause (a) there is no question of tender or payment, since the mortgage-money has been paid off from the receipts and profits of the property. Under Clause (b), however, the remedy, of the mortgager is by way of suit for redemption or by summary process of deposit and notice under Section 83. This case, it is said, falls under Clause (b), and the contention of learned counsel is that without payment of the mortgage money the plaintiffs had no right to recover possession of the disputed land. In this case, the plaintiffs admittedly have not paid the mortgage money. It is further the admitted case that the appellants paid the mortgagees, the pro forma defendants second party, the mortgage money due under the mortgage of 1927 and obtained possession of the suit land, It is common ground that the appellants are in possession of the disputed land. The pro forma defendants second party do not assert possession through the appellants; rather, they concede that they accepted the money from them and put them in possession. Now, what is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the same; (b) any surety for the payment of the mortgage-debt or any part thereof; or (c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property. The appellants rave absolutely no interest in the property mortgaged, nor in or upon the right to redeem the same. Accordingly in law, they have no right to subrogation. In Pichaiyappa Chatti v. Govindaraju Mudaly, 130 Ind Cas 506: (AIR 1931 Mad 110), Sundaram Chetty J. held that if the purchase is invalid, the purchaser is a volunteer, and there is no right of subrogation. The facts of that case which are on all fours with the instant case have been set out and commented upon by Mulla in his Commentaries on the Transfer of Property Act, 4th Edition, at page 538 as follows: ''A mortgages property to B in 1912 and then sells the equity of redemption to C in 1918. After A's death his widow in 1920 purports to sell the property to D who retains part of the consideration and pays off B's mortgage. D had acquired no interest in the property by his professed purchase from A's widow. His payment was that of a volunteer and he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession without paying off the mortgage. 24. Apart from the above, in a case of this nature the only appropriate remedy for the mortgagor is to bring at once a suit for possession, and if he fails to do so, the equity of redemption that he possesses may be lost by prescription. It is true that the mortgagor having once put the mortgagee in possession ordinarily has no right to the possession until the mortgage is paid off. At the same time, it is well settled that where a trespasser dispossesses a mortgagee in possession and continues in possession asserting a title adverse to the mortgagor also, such dispossession will be adverse to the mortgagor from the time the mortgagor has knowledge of the assertion, though he may not then be entitled, according to the terms of the mortgage, to recover possession from the mortgagee, (see Periar Aiya Ambalam v. Shunmuga-sundaram ILR 38 Mad 903: (AIR 1914 Mad 334 ). Therefore, equity of redemption may be lost by adverse possession. It is true that the possession of the mortgaged property by a stranger, though adverse to the mortgagee may not necessarily be adverse to the mortgagor also. It is all a question of fact. Therefore, where a st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not adverse to him and cannot cause time to run against him. To give the mortgagor a right to insist on immediate 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 mortgagee 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. This statement of law was approved by a Full Bench of the Madras High Court in the case or Peria Aiya Ambalam ILR 38 Mad 903: (AIR 1914 Mad 334) referred to above. The principles of law laid down by Batty J. have been recently approved by another Bench of the Bombay High Court in Digamber v. Ramratan AIR 1947 Bant 471. I take it, therefore, well established that where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch case appears to have been made out either in the written statement or in the evidence, nor was any issue framed. Further, on the facts stated, there can be no doubt that the suit land was not covered by the decision in the aforesaid claim case. 27. Lastly, it was argued that the plaintiffs' suit was barred by the principles acquiescence. It is urged that the plaintiffs were aware of the costly structures and mill, being erected upon the suit land, and they stood by and allowed the appellants to spend money thereon. Therefore, it is argued, they cannot now turn round and claim to recover possession. I do not think how the appellants can plead estoppel by acquiescence. I do not see how a man can be said to have acquiesced in what the other side knew to be a true fact. There is no case of money being expended by the appellants in any mistaken belief as to their legal rights, or of the plaintiff's knowing of the existence of any such mistaken belief or encouraging the appellants by abstaining from asserting a right inconsistent with the acts of the appellants. The structures were erected not in any mistaken belief by the appellants of their rights in regard to the land ..... X X X X Extracts X X X X X X X X Extracts X X X X
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