JUDGMENT
S.C. Prasad, J.
1. The simple point involved in this appeal is whether a third person who has dispossessed the mortgagee and has remained in possession of the mortgaged land for more than 12 years has acquired full title against the mortgagee alone or against the mortgagor also.
2. This question arises in the following circumstances : One Tilakhdhari Rai the predecessor-in-interest of the plaintiffs had executed a zerpeshgi deed for Rs. 100 dated 24-3-1893 in respect of the disputed lands in favour of one Parau Singh and the latter had come in possession of those lands. The plaintiffs filed a suit for redemption of the zerpeshgi alleging that defendants 1 to 9 were Parau’s heirs. When he died, it is alleged, his property was inherited by Rambriksh, Rama-shray and Jairam, and these three persons were alleged to have divided the property in four equal shares giving one fourth share to Nathuni Singh, though the latter was not entitled to it.
In the survey record of rights three persons, Rambriksh, Ramashray and Rarncharitar were recorded as raiyats of the zerpeshgi lands although the plaintiffs it was alleged were in possession as mortgagees.
3. Defendants 1 to 4 who contested the suit denied these allegations of the plaintiffs. They said that they had no connection at all with Parau Singh and that the lands in dispute had been always their raiyati lands of which they had been in possession for more than sixty years.
4. It was held by the learned Munsif that the zerpeshgi deed in question was valid and for consideration, that the defendants were not the heirs of Parau Singh, but that they had acquired the status of mortgagees by virtue of having remained in possession of the lands in dispute for more than 12 years as mortgagees adversely against the real mortgagee but without in any way affecting the
right of the mortgagors, namely, the plaintiffs who were, therefore, entitled to redeem the bond. The learned Subordinate Judge agreed with the learned Munsif on the point that the zerpeshgi deed was a valid transaction and that the defendants were not the heirs of Parau, but held that they had remained in possession of the lands for more than 12 years adversely not only against the mortgagees but also against the mortgagors, and that they had acquired full rights as owners, the plaintiffs, having, therefore, no right of redemption as against them. He set aside the judgment of the learned Munsif and dismissed the suit.
5. In the appeal it has been urged by learned counsel for the appellants that the view taken by the court of appeal below is erroneous, because when there was a mortgage and the mortgagees had come in possession as such, their dispossession by a third person did not affect in law the right of the mortgagor, and therefore, the findings of the court below that the defendants had remained in possession of the lands for a very long period adversely to the interest of the mortgagees, Parau and his heirs, did not affect the right of the plain-tiffs as mortgagors’ heirs and suceessors-in-interest to redeem the bond.
Mr. B. C. De, counsel for the appellants, has cited several cases. They are the cases of Dubraj Mahto v. Lalji Sahai, AIR 1929 Pat 639, Binanand Sawase v. Thuroo Mahto, 4 Pat LT 659 : (AIR 1923 Pat 592), Kunwar Sen v. Darbari Lal, AIR 1916 All 79, Mir Wajid Ali v. Alidad Khan, AIR 1940 Pat 45, and an unreported decision of a Single Judge of this Court in Naipal Nonia v. Mt, Raj Kuari, Second Appeal 384 of 1955, D/- 10-2-1959. Learned counsel for the respondents has contended that the view taken by the learned Subordinate Judge is correct, and he distinguished the cases cited by mr. De and submitted that there was no finding in any of those cases that the mortgagor’s right, title and interest in the property in mortgage had been denied to the knowledge of the mortgagor or his heirs by the trespasser who had dispossessed the mortgagee and who thereafter had remained in possession of the mortgaged property for more than 12 years.
Only then it was said he could have claimed to have acquired full rights as owners even against the mortgagor and his heir and successor-in-interest. It is said that this is the most distinguishing feature which makes these cases altogether inapplicable to the facts of the present case. The learned counsel for the respondents has cited two cases, Digamber Shridhar v. Ramratan Raghunath, AIR 1947 Bom 471 and Tarubai v. Venkatrao, ILR 27 Bom 43, in support of his contention, and has particularly relied upon the observations of Batty J. in the latter case at p. 68 of the report.
6. I think that the contentions of the learned counsel for the respondents are well founded, and I am not impressed with the arguments of the learned counsel for the appellants. In this case, the learned Subordinate Judge referred to the fact that as early as 1918 the defendants had filed a petition before the Survey Officer during the revi-sional survey operation alleging that these lands belonged to them as raiyats, but in the revisional survey record of rights the names of other persons had by mistake been recorded as raiyats describing these respondents, as zerpeshgidars.
They, therefore, wanted that correction should be made and their names should be recorded as raiyats and their status as zerpeshgidars should be
cancelled. This prayer was allowed, and the plaintiffs were asked to go to the civil courts for redress of their grievances. That was, therefore, clearly a case of assertion of hostile independent title to the lands in dispute not only against the mortgagee but also against the mortgagors to the latter’s knowledge and the possession of the defendants after that assertion of hostile title to the knowledge of the plaintiffs cannot be taken to have been on their behalf as mortgagees, though that also had the effect of denying the right of the real mortgagees to the possession of the property.
Consequently the adverse possession of the defendants must be deemed to have been adverse not only against the mortgagees but also against the mortgagors, namely, the plaintiffs, and since they had remained as such continuously in possession for more than 12 years from the time when they had asserted their hostile independent title to the lands in 1918 in the face of the plaintiffs whatever right the latter had in the property had been lost, and they could not claim redemption.
7. I do not think it is necessary to examine in detail the cases relied upon respectively by the parties in this case. I think it proper to quote the following observation from the judgment of Batty J. in ILR 27 Bom 43, which in my opinion, clearly lays down the law on this point and if I may say so with respect correctly.
“No doubt, as long as the mortgagee is in possession he and all claiming under him represent the mortgagor’s possession. If the mortgagee in possession is dispossessed on grounds affecting only his right, as for instance, his right, as heir to represent the original mortgagee or his right, as in Purmanand Das v. Jamnabai, ILR 10 Bom 49, to possession in spite of a third party’s Men on the property then the dispossession of the mortgagee obviously does not imperil or call in question any right of the mortgagor and the mortgagor is not concerned or entitled to insist on being immediately restored to possession and the possession taken is not adverse to him and cannot cause time to run against him. To give the mortgagor a right to insist on immediate possession, there must be an unequivocal ouster preventing the possession of the mortgagor from continuing altogether by leaving no room for doubt that the person taking possession does not profess to represent the mortgagor, but to hold in spite of him. In such a case, the mortgagor is as effectually and unmistakably displaced as if there had been no mortgage at all. When an ouster takes place in that manner the mortgagor knows that no one is in possession who can represent or continue his possession, or who is entitled preferentially to possession and, therefore, he becomes entitled (and it is necessary and his duty, if he does not want his right to be barred) to claim possession immediately.”
8. There is no merit in this appeal, it is accordingly dismissed with costs.