MODI, J. - (1.) THIS first appeal by the defendant is directed against the judgment and decree of the Civil Judge, Ajmer in a suit for possession and mesne profits.
(2.) THE dispute relates to a part of the house bearing old No. A M. G. 7/261 and now No. 14/249 situated in Gujar Gawadi in Ajmer fully described in paras 6 and 13 of the plaint as also in the site plan attached to the plaint-portion marked in red colour. The suit out of which this appeal has arisen was instituted on 20 3-1969 by plaintiff Rameshwar Lal against eleven defendants. Plaintiffs and defendants 7 to 11 are related to one another. Similarly defendants Nos 1 to 6 are related to one another. In order to decide the points arising for decision in this appeal it is necessary to set out in brief the facts of this case. Badri Prasad owned two houses adjoining to each other including the suit house. Both these houses were mortgaged on 13. 8. 44 for Rs 25,000/- by Badri Prasad's grandsons Trijugi Naram and Suraj Narain with Seth Basanti Ram. The latter filed a suit for sale of the mortgaged property and obtained preliminary decree on 10 3-54 and final decree on 11 3 55 from the court of Sub Judge, Ajmer. Sometime in 1956 Badri Prasad's widow Mst. Kesarbai instituted a suit claiming half share in the mortgaged property. On 31-7-61 the suit was decided and it was held that though Mst. Kesarbai was entitled to half share in the mortgaged property she was bound by the mortgage and would get her share only after the mortgage decree was satisfied and if something was left thereafter. It was also ordered that the mortgage amount be realised by first selling half share in the mortgaged property and if the decretal amount still remained due, the other half be sold. Accordingly half share in both the mortgaged houses was auctioned by the court of the Senior Civil Judge, Ajmer and the mortgagee Seth Basanti Ram himself purchased it on 15-7-61 for Rs. 10,500/- at the auction sale and obtained a sale certificate in respect thereof on 19-3-62. The other half was put to auction on 15. 1. 63 after the death of Seth Basanti Ram. This half portion was purchased by Seth Basanti Ram's son Norat Mal for Rs. 11,000/- and sale certificate thereof was granted in his favour on 23-5-63. Auction purchasers viz the plaintiffs thereafter applied for possession of the two houses purchased by them and they were put in symbolical possession thereof on 5-4-63 and 28-7-63 as the tenants were reported to be in possession of the two houses One of the occupants was Dinanath D 1 who possessed the disputed premises. The plaintiffs filed a suit against him fur eviction treating him as a tenant. That suit was dismissed. The plaintiffs went in appeal but that too was dismissed. Ultimately, the plaintiffs brought the present suit on the basis of their title and claimed possession and mesne profits for the last three years preceding the date of the suit at the rate of Rs. 40/- p. m. Defendants 7 to 11 allowed the suit to proceed ex parte against them. Defendants 1 to 6 resisted the suit and traversed all material allegations made in the plaint. They pleaded ownership by adverse possession on the ground that they had been in exclusive continuous and peaceful possession for the last 25 to 28 years It was pleaded that they were never the tenants of the plaintiffs and that since no application under O. 21, r. 95 C. P. C was filed within time the suit was not maintainable under the provisions of the C. P. C. The plea of limitation was also raised on the ground that the plaintiffs or their predecessors in title had not been in possession within 12 years preceding the date of the institution of the suit. They denied that the plaintiffs were entitled to recover any mesne profits from them as also that the property could fetch a profit of Rs. 40/- p. m. by way of rent or otherwise. Some more pleas were raised which would appear from the following issues struck by the lower court - (i) Whether the suit property is capable of fetching rent or mesne profits at Rs. 40/-per month? (ii) Whether the defendant No. 2 has a share in the suit property and whether her possession and that of the defendants Nos. 1, 3 and 4 is adverse to the plaintiffs and their predecessors-in-title? (iii) Whether the suit is barred by time for the reasons stated in paras 20 and 21 of the written statement? All the issues except issue No. 2 which related to binding nature of preli-minery and final decrees in the mortgage suit were decided in favour of the plaintiffs. The learned counsel for the appellants has not challenged the findings on issues Nos. 1 and 6. He confined his arguments to issues Nos. 3, 4 and 5 only.
(3.) IT may be stated at the very outset that the plaintiffs have succeeded in proving their title. They were mortgagees of the premises in dispute which were subsequently purchased by them at the court sale held in execution of the mortgage decree obtained by them. The sale certificates Ex. 3 and Ex. 4 standing in the names of Basantiram and Noratmal respectively leave no doubt about the title of the plaintiffs. IT is further clear that the defendants have no title to the suit premises and their whole case was that they had perfected their title by adverse possession. The learned Civil Judge dealing with the question of adverse possession relied upon the statements of the defendants, Triveni Bai D. W. 1 and Laxminarain D. W. 2, both of whom admitted that they were permitted to live in the suit premises by Badridas, the grandfather of Mst. Triveni Bai Keeping in mind the close relationship between Badridas and Triveni Bai the learned Civil Judge held that the possession of the defendants was not adverse but permissive in nature. Learned advocate for the appellants has taken me through the evidence on record but he was unable to point out anything which may be said to throw any doubt on the above finding of the learned Civil Judge. Where possession is proved to be in its origin to be of permissive character it will be presumed that it continued to be of the same character until and unless something occurred to make it adverse. The burden, therefore, lay on the defendants to show how and when their possession became adverse. There is no evidence to show that the defendants asserted any hostile title to the suit premises to the knowledge of the true owners at any time before the present suit or in any case before the symbolical possession was delivered to the plaintiffs. The defendants have thus failed to establish by clear and affirmative evidence the change in the character of their possession for a period of 12 years or more. The symbolical possession was delivered to the plaintiffs within 12 years of the filing of the suit. The suit is therefore within time under Art. 65 of the Limitation Act, 1963. Learned advocate for the appellants has contended that the plaintiffs had nowhere asserted that the defendants were in permissive possession. To hold the suit within limitation on the basis of permissive possession would mean to give effect to a case which the plaintiffs had not put forward. He has further contended that on the case set up by the plaintiffs and on the facts appearing on the record, it is Art. 64 of the Limitation Act, 1963, which is applicable and since the plaintiffs have failed to prove their possession within 12 years of the date of the suit, the suit is barred by time. The learned advocate relied upon the decisions in Siddik Mahomed Shah vs. Mt. Saran (l) and Daryasingh Harisingh vs. Kalma Nihala (2 ). ;