JUDGMENT
Iqbal Ahmad, J.
1. This is a plaintiff’s appeal and arises out of a suit for redemption of a mortgage, dated the 29th of July 1862, executed by Mt. Ulfat Bibi, predecessor-in-title of the plaintiff in favour of Sabut Kunwar and Ram Phal Kunwar, predecessors-in-interest of the defendants, first party.
2. By the said mortgage Houses Nos. 80 and 148, situate in the town of Saidpur were mortgaged for a sum of Rs. 340. The plaintiff’s case was that the principal mortgage-money, together with interest thereon at the stipulated rate, had been satisfied from the rent of the houses mortgaged, and as such the plaintiff was entitled to a decree for redemption of the said mortgage without payment of any amount, and was over and above that entitled to a decree for the surplus amount that may have been realised by the persons in possession of the mortgaged property after liquidation of the mortgage-debt.
3. It is common ground that Defendant No. 4 was in possession of House No. 80 and Defendants Nos. 5, 6 and 7 were in possession of House No, 148 from a time long before the institution of the suit, and the plaintiff’s case was that the said defendants were in possession as sub-mortgagees, and the original mortgage-debt having been satisfied, they were not entitled to resist the suit for redemption. The suit was contested by Defendants Nos. 1 to 3, the successors-in-interest of the mortgagees, and by Defendants Nos. 5. and 6 and Defendant No. 4. I am not concerned with the defence of Defendants Nos. 1 to 3 in the present appeal.
4. The defence of Defendants Nos. 5 and 6 was that they were in possession of House No. 148 as sub-mortgagees, under an unregistered deed of sub-mortgage executed by the defendants, first party, for a sum of Rs. 150 and had further spent Rs. 160 in making necessary repairs of the house, and as such the plaintiff was in no case entitled to a decree for redemption of House No. 148 unless and until he paid to the said defendants the sum of Rs. 310. The defence of Defendant No. 4 was that he was in possession of House No. 80 as mortgagee under a deed dated the 25th of December 1902, executed by two persons named Ganesh Ram and Suraj Prasad, who were in adverse proprietary possession of House No. 80 for a period of more than 12 years prior to the date of the execution of the mortgage by them, and as such the plaintiff’s suit was barred by 12 years rule of limitation. It was further urged by Defendant No. 4 that he had spent a sum of Rs. 1,500 in re-constructing the house now in existence and that having regard to the terms of the mortgage-deed executed by Ganesh Ram and Suraj Prasad he was in any case entitled to a sum of Rs. 7,480-1-6 as a condition precedent to the redemption of the mortgage.
5. The trial Court overruled the pleas taken in defence by all the defendants, and passed a decree for redemption of the mortgage, in the plaintiff’s favour, conditional on the payment of Rs. 340, the original mortgage-money, to the defendants, first party, by the plaintiffs. Only Defendant No. 4 filed an appeal against the decree of the trial Court and in that appeal he arrayed, as respondents, not only the plaintiff but the remaining defendants to the suit. The lower appellate Court held that the suit was barred by Article 134 of the Limitation Act and as such allowed the appeal filed by Defendant No. 4. The decree of the lower appellate Court directs the dismissal of the claim not only in respect of House No. 80, but in respect of House No. 148 as well.
6. It is clear that the decree of the lower appellate Court, so far as it relates to House No. 148, cannot be sustained. The defence of Defendants Nos. 5 and 6, with respect to House No. 148, was not that the plaintiff-appellant had lost his right to that house by lapse of time, but was only to the effect that the plaintiff could not ignore the sub-mortgage executed in favour of those defendants, and was bound to pay a sum of Rs. 310 as a condition precedent to the redemption of the mortgage. In short, the defence of Defendants Nos. 5 and 6 was not identical with the defence of Defendant No. 4. Nor did the judgment of the trial Court proceed on any ground common to Defendants Nos. 5, 6 and 7 and to Defendant No. 4, and as such the lower appellate Court could in no case on appeal by Defendant No. 4 alone, reverse the decree of the trial Court in favour of all the defendants, in accordance with the provisions of Order 41, Rule 4 of the Civil P. C. As a matter of fact, a perusal of the judgment of the lower appellate Court leaves no room for doubt that the Court only confined its attention to House No. 80 and did not adjudicate about the rights of the plaintiff-appellant with respect to House No. 148. For these reasons the decree of the lower appellate Court, with respect to House No. 148, will have to be restored,
7. Now I proceed to consider the defence raised by Defendant No. 4 with respect to House No. 80. It is admitted that Doolam Singh and Bechan Singh, heirs of the original mortgagees, executed a sub-mortgage of House No. 80 in favour of Sahodra Kunwar, wife of Bishnath halwai on the 12th of May 1886. Thereafter, on the 3rd of August 1888, the aforesaid sub-mortgagees executed a mortgage by conditional sale in favour of Musai Ram and Gaya Prasad, and for the purposes of this appeal I will assume in favour of Defendant No. 4 that the sub-mortgagees professed to be absolute owners of the house when mortgaging the same to Musai Ram and Gaya Prasad. Musai Ram and Gaya Prasad put their mortgage into suit and obtained a decree for foreclosure on the 4th of August 1893, and I agree with the learned Counsel for the respondents that the decree, as drawn up, provides for foreclosure not of sub-mortgagee rights, but of full proprietary rights in the house. On the 26th of March 1896 Musai Ram and Gaya Prasad sold their rights under the decree to one Suraj Prasad, son of Ganesh Ram, who entered into possession of the house. Then, on the 25th of December 1903, Suraj Prasad and his father Ganesh Ram executed a mortgage-deed in respect of the said house in favour of Ram Prasad, father of Defendant No. 4, representing themselves to be the full owners of the house.
8. The case of Defendant No. 4 was that time began to run against the plaintiff-appellant from the 3rd of August 1888, when Bishnath and Sahodra Kunwar, the sub-mortgagees, professing to be the absolute owners, mortgaged the house to Musai Ram and Gaya Prasad for a valuable consideration, and that in any case a cause of action for recovery of possession of the house accrued to the plaintiff on the 4th of August 1893, when the foreclosure decree referred to above was passed, and the suit not having been instituted within 12 years of either of those dates was time-barred.
9. The trial Court held that it was conclusively proved that Ram Prasad, and, after him, Defendant No. 4 had been in possession of House No. 80 since 1903., and that the effect of the foreclosure decree was simply to convey to Gaya Prasad and Musai Ram the rights and interest of Mt. Sahodra Kunwar and Bishnath halwai as sub-mortgagees, and that there was no substance in the plea of adverse possession raised by Defendant No. 4. The lower appellate Court was of opinion, that a perusal of the record of the foreclosure suit of 1913 left no room for doubt, that the decree in that case in favour of the mortgagees was
for recovery of proprietary possession of a house by extinction of the defendant’s right to redeem,
and that the proprietary rights, which were rightly or wrongly given to the mortgagees by the decree of 1893, were the rights transferred to Suraj Prasad in 1896, and thereafter he had full proprietary right in House No. 80 that was mortgaged by Suraj Prasad; and Ganesh Ram to Ram Prasad, father of Defendant No. 4. Holding this view, that Court came to the conclusion that the plaintiff’s suit was barred by Article 134 of the Limitation Act.
10. I am unable to agree with the lower appellate Court as to the applicability of Article 134 to the present case. Article 134 is limited to cases where the property mortgaged has been transferred by the mortgagee for a valuable consideration. That article applies only to cases where a transferee for value from a mortgagee takes that which is de facto mortgage upon a representation made to him and in the full belief that it is not a mortgage but an absolute title. That article, in my opinion, cannot protect persons who are not transferees from the mortgagee but are transferees from persons other than the mortgagees or their heirs. The mortgagor is ordinarily allowed a period of 60 years to redeem a mortgage by Article 148 of the First Schedule to the Limitation Act, and any person who seeks the protection of Art 134 must strictly bring his case within that Article. If one were to extend the operation of Article 134 to cases of transfers by sub-mortgagees one would have to read into the article, words to the effect; “property transferred by the mortgagee or by a transferee from the mortgagee” words which are not to be found in Article 134. To me there appears to be no warrant for so extending the scope of Article 134 of the Limitation Act. This view is in accord with the observations of the learned Judicial Commissioner of Oudh to be found in the case of Chhoti Begam v. Ram Prasad [1917] 20 O. C. 164. In the present case it is admitted on all hands, that by the sub-mortgage executed by Doolam Singh and Bechan Singh in 1886, all that was mortgaged to Sahodra Kunwar was the mortgagee right and not absolute right in the house; and as such, so far as the transfer of 1886 is concerned, it cannot attract the provisions of Article 134 of the Limitation Act. In the view that I take of the true construction of Article 134, the subsequent transfers made by the sub-mortgagees, or the decrees obtained on the basis of the mortgage by conditional sale, executed by the sub-mortgagees, or the transfers made by the successors-in-title of decree-holders, cannot curtail the ordinary period of limitation of 60 years provided for by Article 148, and those transfers and decrees were, in my opinion, absolutely ineffectual to determine the plaintiff’s right to redeem the mortgage within the period allowed by law.
11. For the reasons given above I am of opinion that the lower appellate Court was wrong in holding that the suit of the plaintiff-appellant with respect to House No. 80 was barred by Article 134 of the First Schedule to the Limitation Act.
12. But the decree of the lower appellate Court is supported yet on another ground by the learned Counsel for the respondents. He argues that even if Article 134 be not applicable to the facts of the present case the plaintiff’s suit was barred by Article 144 of the Limitation Act. The learned Counsel for the appellant maintains in the first place that this plea not having been definitely raised in either of the Courts below, I ought not to entertain it in second appeal, and, secondly, that Article 144 has no application.
13. As there is no controversy about the facts and the question raised by the learned Counsel for the respondents is purely one of law, I am of opinion that having regard to the provisions of Section 3 of the Limitation Act, I must entertain the ground now urged by the learned Counsel for the respondents, in support of the decree of the lower appellate Court, and as such I must proceed to consider as to whether or not the plaintiff’s suit was barred by Article 144 of the Limitation Act.
14. If the point was not covered by authority, and if I had to decide the point on a consideration of the relevant articles in the First Schedule to the Limitation Act, I would have considerable hesitation in holding that Article 144 constitutes a bar to the plaintiff’s claim. Article 144 is confined to suits “for possession of immovable property” and as such would apparently have no application to a suit for redemption of a mortgage. True it is that a decree for redemption of a mortgage does entitle the mortgagor to possession of the property mortgaged; but, even then, it cannot be said that a suit for redemption of a mortgage is a suit for possession of immovable property pure and simple. Moreover, Article 144 is restricted to those suits for possession of immovable property that have not been “otherwise specifically provided for in the First Schedule to the Limitation Act.” Even if a decree for redemption of a mortgage be regarded as a decree for possession of immovable property, Article 144 can have no application to a suit for redemption inasmuch as there is a distinct article, viz., Article 148 that makes provision with respect to such suits.
15. Further, a consideration of Article 148 and Article 134 leads me to a conclusion, that the only duty cast upon a mortgagor in order to keep intact his equity of redemption, is to jealously watch the activities of his mortgagee alone; in other words he has to keep an eye on the quantity of the interest conveyed by his mortgagee to third persons; and if the mortgagee has professed to transfer an absolute title he must bring his suit within 12 years of the data of the transfer by the mortgagee. If he fails to do so, his right of redemption will be gone after the lapse of 12 years from the date of the transfer by the mortgagee.
16. It is well settled that “possession of mortgaged property obtained by ouster of a mortgagee in possession is not necessarily adverse to the mortgagor also, for the reason that such possession, so far as the mortgagor is concerned, cannot become adverse until the mortgagor becomes entitled to immediate possession vide: Muhammad Husain v. Mulchand [1905] 27 All. 395 and Ismdar Khan v. Ahmad Hussain [1908] 30 All. 119. If a person holding adversely to the mortgagee cannot prescribe a title to the equity of redemption as against the mortgagor, I find it difficult to hold that a person holding possession of the mortgaged property not adversely to the mortgagee, but claiming title through at transfer made by some transferee from the mortgagee, can prescribe a title by adverse possession. So long as the mortgagor does not become entitled to immediate possession of the mortgaged property, it appears to me, it cannot be said that the person in possession of the mortgaged property is holding adversely to the mortgagor, for the simple reason that possession can be adverse only against the person, who is entitled to the possession of that property. True it is that if a trespasser dispossesses a mortgagee and enters into possession of the mortgaged property asserting a title adverse to the mortgagor also, his title will be adverse to the mortgagor from the time, the mortgagor has knowledge of the assertion. This was the view taken in the case of Saiduddin Khan v. Ratan Lal [1910] 32 All. 160 and Peria Auja Ambalam v. Shunmugasundaram [1914] 38 Mad. 903. But in the present case there is nothing to show that an assertion of an adverse title was made either by Defendant No. 4 or his predecessor-in-title to the knowledge of the plaintiff or his predecessor-in-title. If I was untrammelled by authority, I would be inclined to the view that the plea of adverse possession based on Article 144 of the Limitation Act must yield to the proposition of law enunciated in the cases of Muhammad Husain v. Mul Chand [1905] 27 All. 395 and Ismdar Khan v. Ahmad Hussain [1908] 30 All. 119.
17. But, notwithstanding all that I have said above, it seems to me that the case is covered by a Division Bench ruling of this Court reported as Ram Piari v. Budhsain [1920] 43 All. 164. That case is on all fours with the present case and it has been definitely laid down in that case that the claim for redemption, in circumstances like those of the present case, is barred by Article 144 of the Limitation Act. I am bound by the decision last quoted, and, as such, I must hold, that the ground raised by the learned Counsel for the respondents, in support of the decree of the lower appellate Court, is well founded and that the plaintiff’s claim with respect to House No. 80 was barred by limitation.
18. The result is that I modify the decree of the lower appellate Court by granting a decree to the plaintiff-appellant with respect to House No. 148 conditional on the payment of Rs. 340 to the defendants within six months from the date of the decree of this Court. The decree of the lower appellate Court dismissing the claim with respect to House No. 80 is upheld.
19. As the lower appellate Court has, because of the peculiar circumstances of the case, ordered the parties to bear their own costs, I think I ought not to depart from the course adopted by that Court in the matter of costs. Accordingly I direct that the parties should bear their own costs in all Courts.
