G.L. Chopra, J. - (1.) THIS second appeal arises out of a suit brought by Chetu respondent on 18 -1 -1947 for possession of agricultural land measuring 24 bighas and 6 biswas on the basis of his title and alleging the defendants as mere trespassers. In the plaint it was further stated that Chetu plaintiff and one Telu owned one -half and one -fourth shares respectively in a joint Khata which lay in mortgage with Rajaram. On the death of Telu, Chetu acquired his rights as well and became owner of three fourth share in the land. On 4 -1 -1977, Daulat Ram and Narain Das sons of Raja Ram transferred their mortgagee -rights by a registered deed to Chhajju of Ambala. Since Chhajju was not a resident of the State, mutation in his favour was not sanctioned and in the revenue records, therefore, he and after his death his son Ram Chand (defendant 2) continued to be mentioned as tenant of the original mortgagee. On 7 -12 -1982. Chetu further mortgaged the land to Benarsi Das and others (defendants 3) giving them the right to redeem the prior mortgage. Thereafter Chetu himself paid off the first and second mortgagees and got the land redeemed from them. The land in the meantime was taken possession of by Ha mama father of Ramlal and others (defendants 1) who after the death of their father refused to deliver possession of it to the plaintiff. This gave rise to the present suit. The mortgagees (defendants 2 and 3) accepted the plaintiff's claim but the suit was resisted by Ramlal and others (defendants 1) on the ground that they were in fact the owners of the land and were in possession of it as such for more than 25 years. On these pleadings, the following two issues were framed: 1. Whether the defendants are in possession of the land in dispute as owners for over a period of 25 years? O. D.
(2.) WHETHER the suit is within limitation? O.P. 2. The trial Sub Judge was of the view that the possession of the defendants was adverse, that it was adverse only to the mortgagees and not against the mortgagor who was out of possession of the property, that by possessing, it adversely for the prescribed period against the mortgagees the trespassers had acquired the mortgagee -rights and that in consequence thereof the plaintiff could not oust the defendants without getting the property redeemed from them. On issue No. 2 it was found that since the plaintiff had failed to prove the date of the original mortgage or that it was still subsisting the suit was barred by time and it was consequently dismissed. On defendants' appeal, the learned Sub Judge I Class, Patiala. while agreeing with the trial Judge that the defendants' possession was adverse to the mortgagees did not approve of the finding that the defendants thereby had substituted themselves in place of the original mortgagees so as to create the same contractual relationship that existed between the plaintiff and the mortgagees. He, therefore, held the view that the plaintiff could still get the mortgage redeemed by payment of the mortgage amount to his mortgagees and was entitled to get possession of the land from the trespasser. On issue No. 2. it was found that the plaintiffs' suit was based on title and since possession of the defendants could not. be adverse against him till he got the property redeemed, the suit was within time. This is defendants' second appeal. It is admitted by the parties that the mortgage in question was with possession and the mortgagor was not entitled to any share in the actual enjoyment of the property. In such a case if a person dispossesses the mortgagee and enters into possession of the mortgaged property such possession cannot be adverse to the mortgagor, for the simple reason that the possession cannot be adverse to anyone who has no immediate right to possession. Where a trespasser ousts a usufructuary mortgagee and enters into possession of the mortgaged property the possession of the trespasser is adverse to the mortgagee and if it continues for the prescribed period of 12 years the trespasser can only acquire the rights of the usufructuary mortgager. He, however, cannot ordinarily be heard to say that he had by his adverse possession for 12 years deprived the mortgagor of his rights of ownership in the property, so long as the mortgagor was not entitled to any kind of possession or enjoyment of the mortgaged property during the continuance of the mortgage. The mortgagor is not entitled to sue a trespasser for possession because during that period it is the mortgagee alone who can do so and if the mortgagee, does not care to bring such a suit for more than 12 years the only effect of it would be to. deprive the mortgagee of the right to take; possession from the trespasser. The mortgagor s right to sue for possession accrues only when alter redemption of the property he is unable to take possession of the mortgaged property because a trespasser who denies his title is found in possession of it. This proposition of law has been frankly conceded by the learned; counsel for the appellants. He however, urges that the plaintiff in the present case could only get the property redeemed from defendant 1 and not from the original mortgagees and should have filed a suit for that purpose and not on the basis of his title describing defendants 1 as mere trespassers. In the alternative he contends that the plaintiff was not entitled to get possession of the property without payment of the mortgage -money, which was due to the original mortgagees, to defendants 1. In other words his contention is that since defendants 1 were subrogated to the position of the mortgagees by adverse possession, the plaintiff must get the property redeemed from them on payment of the mortgage -money. It is further urged that if the present suit were to be treated as one for redemption the plaintiff was required to prove a subsisting and valid mortgage which he had failed to prove and the suit must, there fore, be dismissed as barred by time. On looking at the pleadings and the issues framed what I feel is that none of these contentions need be discussed m this appeal, nor do I think the Courts below were justified in going into them. The defendants denied the plaintiff's title and the defence they took up was that they were in fact the owners of the land in dispute and had been in continued possession of it as such for a number of years. This, however, according to the decision arrived at by the Courts below, they had failed to prove. It was never their case that they had acquired the mortgagee -rights by possessing the land adversely to the mortgagees, nor did they resist the suit on the ground that the plaintiffs should have filed a suit for redemption on payment of the mortgage -money to them. The points urged by the counsel for the appellants were not specifically taken by him even in the memorandum of appeal to this Court.
(3.) SHRI Lachhman Das the learned counsel for the respondents, has taken me through the entire evidence on record and contends that the defendants had not succeeded in proving that their possession was adverse even to the mortgagee or that they, by their long possession, had acquired the mortgagee rights. A perusal of the relevant entries in the revenue records makes it clear that possession of the defendants initially started somewhere in the year 1987 as tenants -at -will of Ram Chand son of Chhajju (defendant 2). As already observed, mutation of the mortgage in favour of Chhajju could not be sanctioned because he was not a resident of the State. He and after his death his son Ram Chand were, therefore, shown as occupying the land as tenants of the original mortgagees, Daulat Ram and Narain Das. The Jamabandi of 1987 shows that Harnama, father of defendants 1 cultivated the land as a tenant -at -will of Ram Chand and was liable to pay him the Batai. In the next Jamabandi of 1991, Harnama was again described as a tenant -at -will of one Deepa who himself was a tenant of Ram Chand. The entries further make it clear that Harnama paid a share of the produce to Dipa while the latter in his turn paid Rs. 45/ - as fixed yearly rent to Ram Chand. Disputes regarding payment of rent appear to have arisen some time after 1992 and mention of this fact was made for the first time in the Jamabandi of 1995. A similar entry that the tenant disputed his liability to pay any 'lagan' to the landlord is found to have been made in the next Jamabandi of 1999. It was for the rent of this period that Ram Chand brought a suit against the present appellants in the year 1997. That suit was dismissed by Tehsildar Patiala on 30 -8 -2001 on the ground that entries in the revenue records of the said period did not disclose that the defendants were holding the land as tenants -at -will under the plaintiff. The only conclusion that can be drawn from the documentary evidence brought on record by the parties is that possession of Harnama, father of defendants 1. started as a tenant in the year 1987. He continued paying rent to the mortgagee upto the year 1992. It was some time thereafter that he stopped paying anything by way of rent to the mortgagee and for that the latter had to bring a suit in the revenue Court. Its dismissal in 2001 can only prove that the relationship of landlord and tenant did not subsist during those years, but it cannot be regarded as proof of the fact that the possession of the defendants from the very start was adverse to the mortgagee or that no rent was ever paid by the defendants. For that we have still to depend upon the entries in the revenue records of that period. The possession of a tenant is permissive and unless he can prove that he had disclaimed the title of his landlord openly and to his knowledge for more than 12 years he could not claim adverse possession against the landlord. The mere fact that he stopped paying rent at some subsequent time would not be enough to show that he had started possessing adversely to his landlord. Even if their possession be regarded as adverse from the time the defendants stopped paying rent that would be short of the prescribed period. As already observed, the defendants appear to have stopped payment in the year 1993 and the present suit was brought in 2003. My own view, therefore is that the defendants had not succeeded in proving their adverse possession even against the mortgagees for the prescribed period and cannot thus be said to have acquired mortgagee -rights.;