JUDGMENT
Das, J.
1. This was a suit by the appellants for recovery of possession of their 10-annas 6-pies 8 karants share in the properties specified in the plaint. The facts found by the lower Appellate Court are as follows:
1. That the plaintiffs and the defendants executed a usufructuary mortgage in respect of certain properties, including the plaintiffs’ share in them, in favour of one Tirath Pande.
2. That the defendants paid off Tirath Pande and redeemed the mortgage on the 20th October 1894 and obtained possession of the properties.
3. That the plaintiffs did not contribute their proportion of the expenses properly incurred in redeeming the mortgage, nor did they relinquish their title to the properties in favour of the defendants.
2. On the facts so found, the only question that arises for consideration’s one of limitation. The Courts below have concurrently come to the conclusion that Article 144, and not Article 148, applies, and that the plaintiff’ suit is accordingly out of time.
3. Now it will be noticed that, under Section 95, Transfer of Property Act, “where one of several mortgagors redeems the mortgaged property and obtains possession thereof, he has a charge on the there of each of the other co-mortgagors in the property for his proportion of the expense properly incurred in so redeeming and obtaining possession.” Under Section 100 of the same Act, where immoveable property of one person is by act of parties or operation of law made security for payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property. In other words, there is a clear distinction in the Transfer of Property Act between a charge and a mort gage. This is at the bottom of the rule formulated in the decisions to which the learned Subordinate Judge refers that Article 148 does not govern a suit brought by a mortgagor against a co-mortgagor for possession of his share of the properties redeemed by the co-mortgagor.
4. Speaking with great respect, the consideration whether the Transfer of Property Act has drawn a distinction between a charge and a mortgage does not seem to me to be material. The question is one of limitation, and it is necessary to see whether the Limitation Act his recognised a distinction between a charge and a mortgage. As to this, there cannot be any possible room for controversy that no such distinction has been recognised in the Limitation Act, A suit against a charge-holder would be a suit against a mortgagee within the meaning of the term as used in Article 148.
5. But notwithstanding this view of the matter, I am of opinion that Article 148 does not apply to a suit such as this. Article 148 provides for a suit against a mortgagee to redeem or to recover possession of immoveable property mortgaged. Now a suit by a mortgagor against a ac-mortgagor to recover possession of his share of the mortgaged property is not a suit for redemption nor a suit for possession of immoveable property mortgaged, The redemption has already taken place, and it cannot be said that because, by operation of law, the defendants have a charge on the property for the plaintiffs’ proportion of the expenses properly incurred in redeeming the property, that there was a mortgage of the property in favour of the defendants, The plaintiffs have a right to recover their share on recouping to the defendants their proportion of the mortgage-money paid by the defendants, and the suit in which such a right is asserted is a emit for possession, not suit for redemption. I agree with the Courts below that this suit must be governed by Article 144 and not by Article 148 of the Limitation Act.
6. But this conclusion does not decide the case. Under Article 144, the time begins to run when the possession of the defendant becomes adverse. The Courts below have taken the view that the possession of the defendants became adverse to the plaintiffs in 1894 when they recovered possession of the property on redemption. This is incorrect. As was pointed out by West, J., in Ramchandra Yashvant v. Sadashiv Abaji Sirpotdar 11 B. 422 : 6 Ind. Dec. (N.S.) 276, the possession of the defendants as lienors did not, in any way, contradict the ulterior proprietary right of the plaintiffs. On the contrary, it implied and preserved that right, since it would be impossible for a man to hold a lien on his own property. To quote the words of West, J., “as long as a possession can be referred to a right consistent with the subsistence of an ownership in being at its commencement, so long must the possession be referred to that right, rather than to a right which contradicts the ownership. As the right to possession exists, the owner is not at lied on to take any step towards putting an end to it, and hence no presumption arises against him from his quiescence, nor does the possession become adverse to him. This principle is the one on which the decision in Dadoba v. Krishna 7 B. 34 : 4 Ind. Dec. (N.S.) 22 proceeds, and it is implied in Doe d. Caclough v. Hulse (1825) 3 B. & C. 757 : 5 Dowl. & Ry 650 : 27 R.R. 470 : 107 E.R. 914 and other cases.” This principle has been accepted in numerous cases; see Moidin v. Oothumanganni 11 M. 416 : 4 Ind. Dec. (N.S.) 291, Bhaudin v. Shekh Ismail 11 B. 425 : 6 Ind. Dec. (N.S.) 278, Faki Abas v. Faki Nurudin 16 B. 191 : 8 Ind. Dec. (N.S.) 605. In my opinion the mere fact that the defendants took possession of the property on redemption does not decide the suit between the parties. It must be established that the defendants have been in possession for twelve years on an assertion of a hostile title to the knowledge of the plaintiffs; otherwise the plaintiffs are entitled to succeed. The Record of Rights may be valuable evidence, if it has recorded the exclusive title of the defendants and if there in evidence from which the Court below is able to come to the conclusion that the plaintiffs were aware of the entry twelve years before suit. But if it has merely recorded the possession of the defendants, it twill have no effect whatever, for such possession referable to a right consistent with the sub-assistance of the plaintiffs’ title in the property. Nor would the entry operate to the prejudice of the plaintiffs even if it has recorded the exclusive title of the defendants, unless it has been established that the Plaintiffs had knowledge of the entry more than twelve years before suit.
7. I would remand the case to the Court below for a finding on the following issue: did the possession of the defendants become adverse to the plaintiffs, and, if so, when?
8. Let the record be sent down to the Court below forthwith and let the lower Appellate Court return its finding to this Court within a month from the date he receives the record from this Court. Costs will abide the result.
Jwala Prasad, A.C.J.
9. I agree.