JUDGMENT
N.K. Kapoor, J.
1. This order shall dispose of Regular Second Appeal 1580 and 1581 of 1981.
2. This is defendant’s regular second appeal. Brief facts leading to the filing of the present appeal are as under :-
Mehma Singh son of Hira Singh was the original owner of the land. He mortgaged the suit land with possession with Jot Ram and Milkhi Ram. Shiv Ram purchased the mortgaged rights in this land from Jot Ram and Milkhi Ram and so became mortgagee of the land. His rights were inherited by Kishan Chand and Om Parkash. On Mehma Singh’s death his rights in the land were inherited by Mukhtiar Singh (hereinafter called the mortgagor). Mukhtiar Singh sold 111 bighas of land out of the suit land to Mukand Singh, Gurcharan Singh, Jangir Kaur and Anr. (vendees from the mortgagor). One Harnam Singh, predecessor in interest of Gurdial Singh, Mewa Singh, Inder Singh, Moden Singh and Smt. Bachni stated to have entered into forcible possession of the land in dispute while it was in possession of the mortgagees and after his death his heirs have continued to remain in occupation of the same. Mutation in respect of land sold to the vendees was entered and sanctioned in their favour in the year 1975. Similarly, mutation with regard to the redemption of land was sanctioned in favour of the mortgagor on 28.4.1975. It is thereafter, that the mortgagor and vendees filed suit against the trespassers (heirs of Harnam Singh) and mortgagees for possession of land. Sarvshri Inder Singh, Gurdial Singh and other heirs of Harnam Singh filed separate suit claiming themselves to have became owners of the suit land on account of the fact that their adverse possession has ripened into ownership. It was alleged by them that original mortgagors had lost their right to redeem and in any case redemption of the suit land without impleading the heirs of Harnam Singh who had then perfected their title by building adversely against the mortgagees is in consequential and in-operative.
3. Both these suits were consolidated by the trial Court and the evidence was ordered to be recorded in civil suit No. 246 of 1975. On the pleadings of the parties the following issues were frained.:-
(1) Whether the disputed land was originally owned by Mehma Singh son of Hira Singh and Ors.? OPP.
(2) Whether Harnam Singh deceased had became owner of the disputed land by adverse possession during the life time of Mehma Singh? OPP.
(3) Whether the plaintiffs are the legal heirs of deceased Harnam Singh? OPP.
(4) Whether the deceased Harnam Singh got possession of the disputed land after consolidation of holdings, as full owner ? OPP.
(5) Whether the defendant No. 5 had mortgaged the disputed land to Shiv Ram, father of defendant No. 6 and 7 ? If so, to what effect ? O.P.D.
(6) Whether the suit of 111 bighas of land out of the land in suit by defendant No. 5 Mukhtiar Singh in favour of defendants Nos. 1, 2 and 3 and Raj Singh deceased was not competent? If so, to what effect? O.P.D.
(7) Whether the judgment of the Hon’ble High Court, Punjab and Haryana, dated 15th April, 1972, operates res-judicata between the plaintiffs and defendant No. 6 and 7? If so, to what effect as against other defendant? O.P.D.
(8) Whether the order of the Revenue Officer sanctioning mutation No. 3336 and 3337 are wrong? O.P.P.
(9) Whether Mukand Singh, Gurcharan Singh, Jangir Kaur and Sher Singh defendants are owners of the land in suit? O.P.D.
(10) Whether Mukhtiar Singh is the owner of the land measuring 53 bighas 6 biswas out of the land in suit? O.P.D.
(11) Whether the plaintiffs have become owners of the land in suit by adverse possession O.P.P.
(12) Whether the judgment and decree dated 30.4.1964, 21.1.1965 and 15.4.1972 are res-judicata between the parties ? O.P.D.
(13) Whether the suit is within limitation? O.P.D.
(14) Whether the defendants No. 6 and 7 have become owners of the land in suit? O.P.D.
(15) Relief.
4. Issue No. 1 was decided in favour of the plaintiffs. Issue No. 3 was deciding in favour of the defendants. Issue Nos. 2, 4, 8 and 11 were decided against the defendant the trespassers. Issue No. 5 was decided against the mortgagor-the plaintiffs. Issue No. 7 and 12 were decided in favour of the Harnam Singh (now his legal heirs-the appellants) holding that the same operates as res-judicata against the mortgagees. Under issues No. 6, 9 and 10 it was held that the mortgagor was owner of 53 bighas of land and vendees from the mortgagor were owners of 111 bighas of land. Issue No. 13 was decided in favour of the mortgagor and vendees. Issue No. 14 was decided against the defendants. Accordingly, suit filed by mortgagor and the vendees was decreed whereas suit filed by defendant-the heirs of Harnam Singh/trespasser was dismissed.
5. Before the lower appellate Court the matter was once again examined on facts as well as law. Counsel for the appellants once again urged that since the appellants have become owners of the land on account of their adverse possession against the mortgagees they could not be ordered to be dispossessed even if mortgagees did not contest the right of the mortgagors to redeem the land. The Court examined this aspect in entirety and came to the conclusion that the appellants adverse possession against the mortgagees no way affect the rights of the mortgagor. It is only when the mortgagor gets a right to redeem the land that such a plea could be considered. Since in the instant case mortgagor redeemed the mortgage property vide mutation sanctioned on 28.4.1975, exhibit PX-5, it is from this date right if any of the defendants-trespassers could be considered qua the mortgagors. Court thus held that since the suit has been filed within 12 years from 28.4.1975 the same was within limitation. Court also found no substance in the plea of the appellants that there was no cogent or reliable evidence on record that the suit land was infact redeemed by the mortgagor and the vendees from the mortgagees. It was next argued by the learned counsel for the appellants that there is no proof on record that mortgagees have not come forward and depose to this effect and so the trial Court ought to have held that the mutation was false and fictitious. This plea was also rejected by the lower appellate Court. The lower appellate Court on the basis of evidence came to the conclusion that since there is no denial by the mortgagee that property has not been redeemed nor the appellants (trespassers) have led any evidence in rebuttal to prove that the land was not redeemed, it is safe to infer that the property had been redeemed. It was next argued by the learned counsel for the appellants that land has not been redeemed within the statutory period and so the appellants could legitimately resist the suit of the plaintiffs for possession. The Court also found no substance in this contention of the appellants as well. Curt was of the view that since the property had been redeemed there being no objection with regard to the limitation by the mortgagees plea now raised by the trespassers is wholly mis-conceived. Resultantly, the appeal was dismissed.
6. With a view to seek the reversel of the judgment and decree of the Additional District Judge, the learned counsel for the appellants once again briefly highlighted the salient facts of the case leading to the present controversy and then submitted that the Courts below have indeed erred in law in decreeing the suit of the plaintiff despite there being overwhelming unrebuttable documentary evidence on record, a perusal of which leads to the only conclusion that the mortgagors had lost their right to redeem by efflux of time and this being so mere sanctioning of mutation of redemption of land and that to without impleading the appellants could neither cure the inherent infirmity nor debar the appellants from resisting the claim of the plaintiffs as set up. Elaborating, the counsel argued that appellants perfected their title by holding adversely to the mortgagees and so had came into the foot steps of the mortgagees/their successors-in-interest and so any order of redemption in favour of the mortgagor could only be valid and effective if passed against the mortgagees as well as the appellants (the trespassers)i.e. to say it was incumbent upon the mortgagor to pay or tender the mortgage amount to the appellants the trespasser and that too within the period of limitation. The counsel for the appellants in support of his contention that the appellants have acquired all the rights of mortgagees on account of their adverse possession placed reliance upon the decisions in Khyaliram Gopal Porwad v. Onkarlal ChuniLal and Ors., A.I.R.1950 Madhya Bharat 41 and Parvathi Amma and Anr. v. Raman Nair, A.I.R. 1955 NOC (Travancore-Cochin) 5088.
7. On the other hand the learned counsel for the respondents argued that the courts below on perusal of the evidence-oral as well as documentary-have come to the conclusion that order of redemption as reflected in the mutation, exhibit PX-8 dated 28.4.1975 restores back the rights of the mortgagor to take possession of the land mortgaged. Since mortgagees did not care to file a written statement nor appeared in person to controvert the case set up by the plaintiffs the courts rightly came to the conclusion that property validly stood redeemed vide mutation sanctioned on 28.4.1975. In addition thereto since it is the case of the appellants that they have been holding adversely to the mortgagees any such adverse title does not in any manner affect the valuable rights of the mortgagor to take possession of the property having redeemed the same. Counsel further argued that even the plea of adverse possession set up by the appellants is wholly misconceived as Harnam Singh, predecessor-in-interest of the appellants was co-sharer with Mehma Singh and so being a co-sharer cannot in law set up an adverse title qua another co-sharer. In any case, there is no specific plea to the effect that Harnam Singh is holding adversely to Mehma Singh even before mortgaging of land by Mehma Singh.
8. I have heard the learned counsel for the parties as well as perused the various documents referred to by the respective counsel. In Parvathi Amma’s case (supra) reliance has been placed upon head note ‘C’ which reads as :-
“If a person dispossesses the mortgagee and enters into possession of the mortgaged property, such possession will not be adverse to the mortgagor, the reason being that possession cannot be adverse to any one who has no immediate right to possession. Thus, what the trespasser prescribes for is a right against the mortgagee’s right in the property.
He could not, therefore, successfully contend against the redemption of the mortgage by the mortgagor.”
9. A perusal of the above paragraphs makes it abundantly clear that the possession of the trespassers against the mortgagee no way affect the rights of mortgagor to redeem the property. Such a person merely gets mortgagee’s rights in the property. Since it is not the case of the mortgagees that right of redemption has been lost by efflux of time the plea now sought to be raised by the present appellants is thus wholly misconceived. In Khyaliram Gopal Porwad’s case (supra) it has been held that possession cannot be adverse to a person who has no present right to possession and so possession of a third person cannot be adverse to a mortgagor who was not entitled to claim possession during the period of mortgage. It has been further held that when there is no express denial of title of the mortgaged property which was previously in occupation of the mortgagee in possession, does not even by implication constitute a denial, particularly if the mortgagees and such person are related to each other. It has been further held that even if occupation of the third person be considered to be adverse to the mortgagee the proper view would be that the third person acquires the rights of the mortgagees to possession and that the mortgagor has the right to redeem. This decision too hardly advance the case of the appellants in the context of the facts of the present case. The exact date of mortgage had not came on record. The plaintiffs perhaps thought of not stating the same in the plaint as the property stood redeemed vide exhibit PX-8 dated 24.4.1975 and the defendants-the present appellants did not state so perhaps on account of lack of knowledge. This fact could best he disclosed by mortgagees-the defendants, who somehow did not file written statement despite valid service nor cared to depose in favour of one or the other contesting parties. In the absence of the date when the mortgage of the land in dispute was executed the learned counsel for the appellants made an attempt to pin point the precise time when the land was mortgaged with the help of entries in the revenue record. According to the learned counsel for the appellants since the mortgagees were shown to be in possession in the year 2003 B.K. (1945) it could be inferred that mortgage was effected sometime earlier to the year 1945-46 and so the land could only be redeemed within 20 years from the date of mortgage as per Section 61(a) of Limitation Act. Argument though attractive is somewhat conjectural. Admittedly, the defendants have not come up with a specific plea in this regard. Mortgagees-defendants too have not filed any written statement on the basis of which it could be inferred as to when the mortgage came into existence. The precise plea with regard to the limitation could legitimately be raised by the mortgagees the defendants and if raised would have been examined by the concerned authorities. Even otherwise there appears to be some miscalculation of year by the Counsel 2051 B.K. corresponds to 1995 of Georgian Calender and so 2003 B.K. will be equivalent to 1947 and so the sanctioning of mutation (28.4.1975) was within the prescribed period of the tentative year of mortgagees-1945. Otherwise even if, the case is examined in the light of Section 61(a), period of 30 years is to be calculated ‘when the right to redeem or to recover possession accrues. Right to redeem accrue when mortgage money has become due. In the absence of material on record, it is difficult to pin point the date when the mortgage amount become ‘due’. Even if the argument of the counsel that mortgage date is the year 1945, amount of mortgage will become due the following year i.e. 1946 and so from that date too, land had been redeemed within the prescribed period. In any case, as observed earlier, the argument raised is hypothetical and hence discarded. On the other hand we have a document, exhibit PX-8 dated 28.4.1975 i.e. sanctioning of mutation in favour of the mortgagor. This mutation was sanctioned in the presence of the contesting parties who admitted the receipt of the mortgage amount and so agreed to the redemption of the property. Counsel for the appellants has not been able to cite any decision to the effect that the trespassers were either necessary or proper parties to the proceedings, for the redemption of the land. Both these judgments referred to by the learned counsel for the appellants merely state the rights of the trespassers who hold qua the mortgagees. Since, the mortgagor could not oust the trespassers during the period of the mortgage their possession even when adverse qua the mortgagees does not affect their right to redeem the land or to seek possession of the property after redemption in any manner. The appellants’ possession if taken from the 28th April, 1975 had certainly not ripened into ownership as the suit had been filed on 8.3.1975. The appellants cannot derive much benefit from Section 27 of the Limitation Act which only bars a remedy but does not extinguish the right itself. Had this specific plea had been taken by the mortgagees the concerned authorities would have examined and after satisfying would have sanctioned the mutation. Present is a suit for possession on the ground that the suit land having been redeemed by the plaintiffs are entitled to possess the same. No other point has been pressed or claimed. Resultantly, finding no merit in the appeal the same is dismissed.
10. Parties will bear their own costs.