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Allahabad High Court
Pokhpal Singh vs Bishan Singh on 11 November, 1897
Equivalent citations: (1898) ILR 20 All 115
Author: Aikman
Bench: Aikman


Aikman, J.

1. Bishan Singh, the plaintiff in the suit out of which this appeal arises, executed, in favour of the defendant Pokhpal Singh, a deed of usufructuary mortgage on the 4th of July 1873. The terms of the mortgage were that the mortgagee was to remain in possession of the property for four and a half years and surrender it at the expiry of that term, the usufruct for that period being held to discharge both the principal and the interest of the loan which was given. The period expired in 1378, but the mortgagee continued in possession of the property. On the 27th of February 1895, the mortgagor brought the present suit to recover possession of the mortgaged property. He gut a decree from the Subordinate Judge, which was confirmed on appeal by the District Judge. The defendant comes here in second appeal contending that plaintiff’s suit is barred by limitation. It is argued that as soon as the term of four and a half years expired the possession of the defendant became adverse, and that the suit is barred by the limitation provided in Article 144 of the second schedule of the Limitation Act, 1877. That article can only apply if a suit like the present is nowhere specially provided for in the schedule. Reliance is placed on the decision of this Court in Gobardhan v. Sujan Weekly Notes, 1894, p. 72.

2. In my opinion the appeal must fail. The lower Courts were, I hold, right in thinking that this suit is one under Article 148 of the schedule, namely, a suit against a mortgagee to recover possession of immovable property mortgaged, a suit for which a period of sixty years is allowed, reckoning from the time when the right to recover possession accrued. The circumstances of the case cited differ from those in the present case, inasmuch as there the suit was one between co-mortgagors and could not therefore fall under Article 148. In the case of Jugurnath Sahoo v. Syud Shah Mahomed Hossein 14 B.L.R. 386, their Lordships of the Privy Council observe, at page 391 of the report:–The law, wisely or unwisely, has given to mortgagors the long period of sixty years within which to bring their suit, and no Court of Justice would be justified in diminishing that period on the ground of the laches of a party in the prosecution of his rights.” The mere fact that the mortgagee held on in possession of the mortgaged property after he ought to have given it up, would not alter the character of the suit, which is clearly one between mortgagor and mortgagee and falling within the terms of Article 148. For the above reasons I am of opinion that this appeal must fail, and I dismiss it with costs.

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