Bapna, J. - (1.) THIS is a second appeal by the plaintiff in a suit for recovery of possession.
(2.) THE allegations in the plaint, as amended, were that the plaintiff Mst. Mariyam was the daughter of Allarakh. This Allarakh had a shop at Malpura", more fully described in the plaint, which he had mortgaged with possession to Hira Nand. Hira Nand in turn mortgaged or sub-mortgaged it with Rasoola. It was alleged that one Abdul Karim, who was the sister's son of Allarakh redeemed that shop from Rasoola, and thereafter mortgaged the same with Shri Baksh. Later Abdul Karim on second Jeth Sudi, 13, Svt. 1999 (26th June, 1952) sold the equity of redemption also to Shri Baksh. It was alleged that the plain tiff got into possession of the shop some time in 1945, but Shri Baksh instituted a suit for possession under sec. 9 of the Specific Relief Act, and got a decree on 31st August, 1947, in execution whereof the plaintiff again got dispossessed. She claimed that she was the owner of the property and entitled to possession of the same, and, therefore, instituted the suit. Abdul Karim was also made a defendant, but he did not file any reply Shri Baksh denied the plaintiff's allegations that she was the daughter of Allarakh, or that Allarakh was the owner of the shop. It was pleaded that Abdul Karim was the owner of the shop, and he had a right to mortgage it and thereafter to sell it to Shri Baksh. A plea of limitation was also raised. The trial court, after evidence, held that Mariyam was the daughter of Allarakh, but it had not been proved that the shop was the property of Allarakh, or that Allarakh or the plaintiff were at any time in possession of it It was found that the shop in dispute stated to be the property of Allarakh was in the possession of Abdul Karim as owner, and he had a right to sell the same to Shri Baksh. On the question of limitation it was held that according to the plaintiff's case the suit was covered by Art. 144 of the Limitation Act and adverse possession of Abdul Karim would start only from the day when he got the property from Rasoola, and as that date had not been disclosed either by the plaintiff or by the defendant, the suit would be deemed to be within time On the findings on other issues, however, the suit was dismissed on the 27th of October, 1950. On appeal the learned Additional District Judge maintained the decision of the lower court by judgment of 29th March, 1952. The plaintiff has come in second appeal. Learned counsel for the plaintiff-appellant contended that in coming to the conclusion that the plaintiff had failed to prove that the shop in dispute belonged to Allarakh, the trial court had omitted to take into consideration an important price of evidence on record. The two courts in their judgments have said that the plaintiff's evidence was scanty, and that all the defendant's witnesses had said that the property belonged to Abdul Karim. Learned counsel pointed out that Isar Das, D. W. 2, had admitted in cross-examination that the property was of Allarakh, and this important portion of his statement was overlooked by the two courts. Learned counsel for the respondent urged that that portion of the statement must have come to be recorded by some mistake, as in examination-in-chief the witness clearly said that the shop was of Abdul Karim. It was urged that Isar Das had stated in respect of certain other questions put to him that he had only heard about it, and it may be that this portion of his statement was in the same strain. I am unable to agree with learned counsel for the respondent, for the admission by the witness is clear cross-examination that this shop in dispute was of Allarakh His two state-ments are reconcilable, for the witness further stated that the had heard that Abdul Karim was adopted son of Allarakh having been so adopted 26 years ago. This clear admission was not taken into consideration by the two courts, and if taken together with the other evidence of the plaintiff, which is indeed scanty, the plaintiff's case takes a strong turn, and the evidence of the three witnesses of the plaintiff viz. , Rahim Baksh, P. W. 1, Ashraf Ali, P. W. 2, and Anwar Ali, P. W. 2, and Anwar Ali, P. W. 3, and of Mariyam herself, on commission, is sufficient for a finding that the shop at one time belonged to Allarakh. This, however, does not dispose of the case. It may be stated at once that the plaint as framed by the plaintiff does not disclose her right to possession. According to the allegations made in the plaint the shop was mortgaged by Allarakh to Hiranand, and Hiranand mortgaged or sub-mortgaged it to Rasoola and it was got redeemed by Abdul Karim, and Abdul Karim sold it to Shri Baksh. Rasoola, Abdul Karim and Shri Baksh thus derived their title from the mortgagee Hiranand. The plaintiff at best inherited the equity of redemption, and she had no right to immediate possession unless there was an allegation that the mortgage had been redeemed. Rosoola, Abdul Karim and Shri Baksh had only derivative title claiming through the mortgagee, and therefore, if the plaintiff's case was as stated in her plaint, she should have come forward with a suit for redemption of mortgage. It does not disclose any right of possession, and the suit should have been thrown out on that view alone. It may be poured out that the plaintiff considered Abdul Karim to be a trespasser. Even assuming that he was so, adverse possession against a mortgagee does not become adverse against; the mortgagor for the simple reason that possession cannot be adverse to any one who has no immediate right to possession If the fact of the mortgage with Hiranand and subsequent transactions by Rasoola, Abdul Karim and Shri Baksh are not taken into consideration, the suit of the plaintiff, as she now purports to urge is that Abdul Karim was a trespasser, and, therefore, she had a right to possession of the land, and the plea of limitation is to be judged with reference to Art. 144 of the Limitation Act, It was further contended that since she got into possession in 1945, and. was only ousted therefrom under a decree of the court, the limitation against her would only start from the date of her dispossession under the decree of the court, and this dispossession was done after she had instituted the present suit. It was at first only a declaratory one, but after her dispossession the suit had to be amended. According to the allegations by the plaintiff she was married at Kishangarh, and only became entitled to the property on the death of Allarakh. In her statement, which was recorded on 20th October, 1919, she said that Allarakh died 20 years ago. It was not disclosed who got into possession on the death of Allarakh, for the plaintiff's case was that the shop had been mortgaged by Allarakh with Hiranand. One of her witnesses, Anwar Ali, was, however, confronted with his previous statement, which he made in the suit under sec. 9 of the Specific Relief Act, in which he admitted in cross-examination that after the death of Allarakh, Abdul Karim came to be in possession of the shop as the son of Allarakh. In the present case the version given by the plaintiff and his witnesses was that this Abdul Karim was not at all related to Allarakh, and had not been adopted by Allarakh, and as urged by learned counsel for the appellant, an adoption in Mohammedan Law is not valid unless sanctioned by custom, which had not at all been pleaded in the present case. Of the witnesses led by the defendants, the evidence of two is important. Ram Rai, D. W. 5, is a tenant of the shop adjoining the shop in dispute. He stated that he was in occupation of his own shop for about 25 years. The witness stated that Abdul Karim was in possession of the shop tor about 25 or 30 years before he sold the same to Shri Baksh in Svt. 1999. He added that his knowledge dates back not only to the period when he took the adjoining shop on rent, but also from before, because he used to see the shop in dispute in the possession of Abdul Karim. Ramgopal. D. W. 6, is a neighbour. He said that the shop in dispute is in the opposite line of his house and near to it. He said that he only saw Abdul Karim in possession of the shop until he sold it to Shri Baksh. Other witnesses have also said that Abdul Karim was the owner of the shop, and was in possession of it, but their evidence is not so clear and definite with respect to the period as of the aforesaid two witnesses. As stated above, the lower court had observed that the witnesses of the plaintiff were not reliable by themselves, Anwar Ali has already been dealt with above. Ashraf Ali, P. W. 2, said that; Allarakh died 13 or 14 years ago. The shop was never mortgaged at any time by any body. This statement was contrary to the allegations in the plaint itself. Rahim Baksh said that Allarakh died 10 or 15 years ago. Abdul Karim was not in possession of the shop at any time, and that Abdul Karim was not an heir of Allarakh. These witnesses of the plaintiff did not say who remained in possession of the shop since the death of Allarakh. Assuming that Allarakh died 20 years ago from the date when Mariyam gave her statement on 20th Oct. , 1949, the death of Allarakh would fall in 1929 A. D. The testimony of Ramgopal which has been held to be reliable, proves that Abdul Karim was in possession of the shop at least from 1929 onwards, for he said Abdul Karim to be in possession for 25 or 30 years before Svt, 1996. Abdul Karim thus without being related to Allarakh and being a stranger got into possession of the shop of Allarakh. and his possession was obviously adverse to the real heirs of Allarakh, who, according to the plaintiff, were none else but the plaintiff herself. The plaintiff, according to the allegations in the plaint, got into possession in 1945 after the lapse of 16 years and after Abdul Karim had sold the shop to Shri Baksh. It was not that the rightful owner came to be in possession before the statutory period had expired against her, and, therefore, regained the title so as to let the limitation start afresh from the date of her subsequent possession, She herself was a trespasser after the expiry of the statutory period of 12 years, and came to be dispossessed on suit under sec. 9 of the Specific Relief Act. If she had thus lost her title a few years before 1945, she could not assert the same now by the suit instituted by her on 13th October, 1947. The trial court in deciding the issue of limitation, only purported to say that the suit would be within limitation, if the allegations mentioned in the plaint were correct that it had been mortgaged by Allarakh to Hiranand and Hiranand passed on the title to Rasoola and Rasoola passed on the title to Abdul Karim, and Abdul Karim can only take advantage of the limitation from the date that he came to be in possession. The above facts were, however, found by the lower court not, to have been proved, and therefore, the court did not seem to bother with the alternative view as to whether the plaintiff could succeed without suing for redemption in case the allegations mentioned in the plaint had been proved. Judged from either way, the plaintiff is not entitled to succeed. The decree of the lower court is correct. This appeal fails and is dismissed with costs. Learned counsel wants leave to appeal. The prayer is rejected. .;