Ram Ran Bijai Singh And Others vs Behari Singh Alias Bagandha Singh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 195 of 1961

Decision Date: 25 April 1963

Coram: N. Rajagopala Ayyangar, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta

In the matter of Ram Ran Bijai Singh and others versus Behari Singh alias Bagandha Singh, the Supreme Court of India delivered its judgment on 25 April 1963. The opinion was authored by Justice N. Rajagopala Ayyangar, with Justices P. B. Gajendragadkar, K. N. Wanchoo, K. C. Das Gupta and K. C. Das forming the bench. The petitioners were Ram Ran Bijai Singh and several others, while the respondent was Behari Singh, also known as Bagandha Singh. The case is reported in 1965 AIR 524 and 1954 SCR (3) 363, and it appears in subsequent citations such as RF 1971 SC 2251 (6), F 1977 SC 5 (5, 10, 22), F 1978 SC 30 (2) and R 1979 SC 1769 (27, 28). The matters involved the provisions of the Bihar Land Reforms Act, 1950 (XXX of 1950), specifically sections 2(k), 3(1), 4 and 6, as well as the Indian Limitation Act, 1908, article 144. The factual background recorded that the ancestors of the appellants had executed a registered rehan bond covering the suit land together with other lands. In 1941 the appellants discharged the amount due under the rehan bond and obtained a satisfaction of the bond. After the bond was redeemed, the appellants sought to take possession of the suit land, which at that time was occupied by Respondent I and Respondent II. Those respondents refused to surrender possession, contending that they held occupancy rights over the land. Consequently, the appellants instituted a suit asserting that the suit lands were zeraiti lands in respect of which they were the malik, that the respondents were trespassers without any occupancy right, and they prayed for a declaration of title, recovery of possession and mesne profits. In addition to their claim of being raiyati tenants entitled to occupancy, the respondents argued that the suit was barred by limitation on the ground of adverse possession. The Trial Court examined all substantial issues, rejected the respondents’ plea of adverse possession and limitation, and granted a decree in favour of the appellants for the reliefs pleaded. The respondents appealed the decree to the High Court. While the appeal was pending, the Bihar Land Reforms Act, 1950 came into force. Section 3 of that Act provided for vesting of the estates or tenures of proprietors in the State, whereas section 6 contained certain savings. During the hearing, the respondents contended that, by reason of a Government Notification issued in 1955, the suit lands had vested in the State under section 3, and since the suit was essentially an ejectment proceeding based on the appellants’ title which they had lost due to vesting, the appeal should be dismissed. The High Court, however, held that the appellants were entitled to a declaration of title and to mesne profits up to the end of December 1954, but because the suit lands had vested in the State, it set aside the trial court’s decree granting possession. The present appeal before the Supreme Court challenged the High Court’s order that had annulled the decree for possession granted by the trial court.

The trial court had awarded mesne profits up to the end of December 1954. However, because the suit lands had vested in the State, the decree for possession that had been granted in favour of the appellants by the trial court was set aside. The present appeal challenges the decree of the High Court which set aside the trial‑court decree for possession, and the appeal is filed on the basis of a certificate of fitness granted by the High Court. On behalf of the appellants it was argued before this Court that, since the lower courts had concurrently found that the lands were the zeraiti land of the appellants, the lands would not vest in the State because of the saving provision contained in section 6 of the Act. The appellants contended that they should be deemed to have been in “khas possession” of the lands under section 6(1)(c). Relying on the Full Bench decision of the Patna High Court in Mahanth Sukhdeo Das v. Kashi Prasad Tiwari, A.I.R. 1958 Pat. 630, they submitted that the expression “khas possession” must be understood to include not only actual physical possession as defined in section 2(k) of the Act but also situations of constructive possession, where the physical holder possesses the property derivatively, in trust, on behalf of, or with the express or implied permission of the person claiming possession. They further relied on a decision of the Allahabad High Court reported in I.L.R. 1933 All. 97, arguing that where a mortgagee continued in possession of mortgaged property after the mortgage had been paid and discharged, the property remained in the “khas possession” of the mortgagor. The respondents, however, contended that the present case was not analogous to a mortgagee remaining in possession after payment of a debt, but involved tenants who claimed the right to remain in possession by asserting a title that was adverse both to the mortgage and to the mortgagor. The Court held that the possession of respondents I and II in the present appeal was in their own right and was adverse to the appellants, even when considered within the facts presented by the appellants. Because their possession was wrongful, a claim for mesne profits was made against them. In these circumstances it was impossible for the appellants to maintain that the tenants were possessing the property on behalf of the mortgagor or that their rights derived from the mortgagor. Accordingly, section 6(1)(c) could not apply, since the mortgagor‑mortgagee relationship did not exist on 1 January 1955. The judgment was delivered in civil appellate jurisdiction for Civil Appeal No. 195 of 1961, arising from the judgment and decree dated 3 September 1957 of the Patna High Court in appeal from original decree No. 42 of 1948. Counsel for the appellant were Sarjoo Prasad and Mohan Behari Lai, while counsel for the respondents were A. V. Viswanatha Sastri and D. Goburdhun.

The judgment was delivered on 25 April 1963 by Justice Ayyangar. The main issue before the Court was how to correctly interpret the vesting provisions of the Bihar Land Reforms Act, 1950, and especially the extent of section 6 of that Act. The appeal was taken on a certificate of fitness granted under article 133(1) by the High Court of Patna. The plaintiffs in the original suit were the appellants in the present appeal. The suit concerned a parcel of land measuring approximately fourteen bighas and five kathas, identified as khata number 741 in the village of Chaugain. The plaintiffs sought a declaration that the land in question was zeraiti land belonging to them and that the two persons who had been impleaded as the first and second defendants had no right or title to the land. They also asked that the Court order the defendants, who were then in actual possession, to be dispossessed and the land to be handed over to the plaintiffs. In addition, the plaintiffs demanded a decree for mesne profits for the three years preceding the suit and requested an inquiry into future profits pursuant to Order 12 of the Code of Civil Procedure.

To understand the parties’ arguments, the Court set out several material facts recorded in the plaint. The ancestors of the plaintiffs had executed a registered rehan bond on 28 October 1897 covering lands that included the present suit property, in favour of the ancestors of the persons later impleaded as the third defendants. While that mortgage was still subsisting, the plaintiffs’ ancestors executed a second registered rehan bond in June 1907 in favour of the ancestors of the persons later impleaded as the fourth defendants. A portion of the money loaned under the second bond was retained by the second mortgagees to enable them to redeem the earlier mortgage. The redemption of the earlier mortgage was later effected, and the fourth defendants obtained possession of the entire property that had been mortgaged to them. On 8 June 1941 the plaintiffs paid the sum due on the 1907 rehan bond, entered a satisfaction on the bond and endorsed it. By that redemption the plaintiffs recovered possession of part of the mortgaged lands, but they could not obtain possession of the lands that were the subject of the present suit. Those particular lands remained in the possession of the first and second defendants, who claimed a right to remain in occupation based on alleged tenancy rights. The defendants refused to surrender actual possession to the plaintiffs and contended that the suit lands were not zeraiti land to which the plaintiffs, as malik, would be entitled to khas possession. Instead, the defendants asserted that the lands were raiyat lands, from which tenants in cultivation could not be evicted. Because of this claim and the resistance offered to the plaintiffs’ effort to take khas possession, the suit was filed for the reliefs already described. The plaint also mentioned the third and fourth defendants, who were representatives of the mortgages under the 1897 and 1907 rehan bonds, but their claims had been satisfied and they played only a minimal role in the dispute.

The Court observed that the parties identified as the third and fourth respondents were merely representatives of the mortgages created under the rehan bonds of 1897 and 1907, and that their claims under those mortgages had long been satisfied; consequently, their presence in the proceedings was of no substantive consequence. Accordingly, the dispute was confined to the tenant‑defendants, namely the first and second respondents, and for purposes of adjudication the Court found it sufficient to focus on the second respondents, who were in actual possession of the suit lands at the date the suit was instituted. By reference to the written statements filed by those defendants, the Court noted that they contested the nature of the tenancy, denying the plaintiffs’ characterization of the lands and asserting a continued right to remain in possession notwithstanding the discharge of the 1907 rehan. Several questions were raised in the pleadings, but the Court limited its consideration to three principal issues. First, the Court needed to determine whether the suit‑land was “zeraiti” land as alleged by the plaintiffs or “raiyat” land, as averred by the contesting defendants. Second, the Court had to ascertain the date on which the first and second respondents first entered into possession and began cultivation of the land. The defendants claimed that they had been tenants occupying the land long before the 1897 rehan, asserting a period of occupancy extending back some thirty years, whereas the plaintiffs contended that they were first introduced to the land as tenants of the mortgagees under the 1897 rehan for a term of seven years, a term that expired around 1912‑13. Third, the question arose as to whether the plaintiffs had lost title to the land and whether their suit for recovery was barred by limitation on the ground that the defendants had acquired a perfected title through adverse possession. The defendants relied upon a claim that they had established title by adverse possession for a period exceeding the statutory twelve years prescribed in Article 144 of the Limitation Act, and the dispute centered on the precise moment from which that period was to be measured and whether, on that basis, the suit was time‑ barred. The trial judge examined an extensive body of documentary and oral evidence presented by the parties and, after detailed consideration, recorded several findings. He held that the land in question was the plaintiffs’ zeraiti land and had been in their actual possession at the time of the first rehan in 1897, thereby rejecting the defendants’ contention that their predecessors were in occupation before that date. He further found that the defendants had taken possession of the land under a lease deed executed about 1906 for a term of years, that the lease expired in 1912‑13, and that thereafter they continued as tenants of zeraiti land, which precluded any claim to a right of occupancy. Finally, the judge observed that the second respondents, who were in actual

The second party defendants were undeniably in possession of the suit lands, asserting a claim to hold them for themselves; however, their possession could not be considered adverse to the plaintiffs until the plaintiffs regained the right to resume possession, which occurred only in June 1941 when the plaintiffs paid and discharged the amount due under the mortgage, thereby obtaining lawful possession. Because the suit was filed within twelve years of that June 1941 date, the court found the suit to be timely. Based on these findings, the learned trial judge delivered a judgment on 10 October 1947, granting the decree sought by the plaintiffs. Dissatisfied with this outcome, the second party defendants filed an appeal before the High Court, challenging the trial judge’s conclusions. While the appeal was pending, the defendants applied for and secured a stay of delivery of possession, and by virtue of that order they continued to occupy the land. During the pendency of the appeal, the Bihar Land Reforms Act (Act XXX of 1950) was enacted and came into force on 25 September 1950. Section 3(1) of that Act provides that the State Government may, by notification, declare that the estates or tenures of a proprietor or tenure‑holder specified in the notification have passed to and become vested in the State. It was undisputed that the plaintiffs qualified as “proprietors” under the Act. Consequently, a notification issued under Section 3(1) vested the plaintiffs’ estate in the State effective 1 January 1955. The effect of such a notification was detailed in Section 4, which states that notwithstanding any other law or contract, upon publication of the notification the estate or tenure, together with the proprietor’s interests in any building, part of a building, and all sub‑soil, shall, from the vesting date, vest absolutely in the State free from all encumbrances, and the proprietor shall cease to have any interest in the estate except those expressly saved by the Act. The remainder of Section 4 was not material, although Section 6 of the Act contains a saving provision concerning certain lands, which would be considered later. The appeal was heard before the High Court in September 1957. At that stage, counsel for the tenant‑defendants, who were the appellants, raised the contention that the suit—essentially an ejectment action based on the plaintiffs’ title—should be dismissed because the plaintiffs had lost their title when the estate vested in the State by virtue of the notification under Section 3 of the Act.

In the appeal, the tenant‑defendants argued that the suit, which was essentially an ejectment proceeding based on the plaintiffs’ title, should fail because the plaintiffs’ title had been extinguished by the notification made under section 3 of the Act, with the effect prescribed in section 4. The plaintiffs’ counsel countered that a court could not consider legislation that came into force after the suit was filed, and that the dispute should be decided according to the law as it stood on the date the suit was instituted. The learned judges rejected that submission, holding that the appropriate point of reference was the law in force on the date of the judges’ own decision. Consequently, the impact of the Act on the plaintiffs’ title had to be examined before affirming the relief that the trial judge had granted. Beyond this general issue, the plaintiffs’ counsel did not attempt to argue before the High Court that, even if the Act were taken into account, the plaintiffs’ rights to the reliefs granted by the trial judge would remain intact. That argument was later advanced before this Court.

The plaintiffs had also sought a declaration that the land possessed a “zeraiti” character, had obtained mesne profits for three years preceding the suit, and had been awarded an inquiry into mesne profits for the period after the suit up to 31 December 1954, despite the estate vesting in the State from 1 January 1955. Their entitlement to retain these reliefs depended on the correctness of the trial court’s determination of the land’s tenure. The tenant‑defendants contested the trial judge’s findings regarding the zeraiti nature of the land, the date from which they had possessed and cultivated it, and the character of their possession. The appellate judges therefore examined the oral and documentary evidence concerning these matters and arrived at the same conclusion as the trial judge. Section 4(e e) of the Act provides that the State Government may, within three months of service of notice, apply to be added as a party to the suit and may conduct or defend the proceedings. Notice was served on the State Government, but the State did not appear in response. Counsel for the State was therefore absent from the hearing.

Counsel for the State appeared at the hearing of the appeal and requested that a decree be issued in favour of the State granting possession of the suit lands, relying on the proposition that ownership of those lands had vested in the State under section 4(a) of the Act. The learned judges rejected this request, observing that the State had failed to act diligently on the notice that had been served upon it, as required by the Act, and that it had not entered an appearance within the prescribed time limit. Consequently, a decree for possession in favour of the State was not granted. Instead, the learned judges altered the decree originally made by the trial judge. The modified decree provided that the plaintiffs would receive a declaration of title confirming that the lands in dispute were the private lands of the proprietors, that the plaintiffs were entitled to mesne profits for the years claimed and also up to 31 December 1954, and that the plaintiffs’ estate had vested in the State of Bihar on 1 January 1955. The decree for possession was therefore set aside, and the amount of mesne profits was to be determined in subsequent proceedings. This altered decree, which denied the State possession, is the order that the plaintiffs have challenged in the present appeal.

Counsel for the appellant, who appeared on behalf of the plaintiffs, did not dispute the legality or propriety of the High Court judges’ method of examining the plaintiffs’ title and their claim to the reliefs sought in the suit with reference to the provisions of the Act. His principal contention was that, according to the very terms of the Act, the plaintiffs were entitled to retain the decree for possession that had been granted by the trial court. He argued briefly that, because the concurrent findings established that the lands were zeraiti lands belonging to the plaintiffs, those lands could not vest in the State Government due to the saving clause contained in section 6 of the Act, which excludes from the operation of section 4 lands of that character. He further acknowledged that if the exception in section 6 did not apply for any reason, then the vesting of the lands in the State under section 4 could not be resisted, and consequently the plaintiffs could not obtain a decree for possession. Accordingly, he pressed that it was necessary to interpret section 6 to determine its proper scope. The relevant portion of section 6(1) reads as follows: “On and from the date of vesting, all lands used for agricultural or horticultural purposes, which were in khas possession of a proprietor or tenure‑holder on the date of such vesting, including— (a) (i) proprietors’ private lands let out under a lease for a term of years or under a lease from year to year, referred to in section 116 of the Bihar Tenancy Act, 1885, (ii) landlords’ privileged lands let out under a registered lease for…”

The Court explained that Section 6(1) of the statute lists three categories of lands that are saved from vesting in the State. The first category includes lands let out for a term exceeding one year, or under a lease of one year or less, whether the lease is written or oral, and whether it is referred to in section 43 of the Chota Nagpur Tenancy Act, 1908. The second category covers lands used for agricultural or horticultural purposes that are held in the direct possession of a proprietor or tenant, and that are cultivated by the holder himself, by his own servants, or by hired labour, or by hired stock. The third category comprises lands used for agricultural or horticultural purposes that form the subject‑matter of a subsisting mortgage, and upon redemption of that mortgage the intermediary is entitled to recover khas possession of those lands. The provision further states that, subject to sections 7A and 7B, such lands shall be deemed to be settled by the State with the proprietor or tenant, who shall be entitled to retain possession and hold them as a raiyat under the State, subject to payment of a fair and equitable rent determined by the Collector in the prescribed manner.

The Court noted that the saving in Section 6 applies only to lands that are in “khas possession” of the proprietor. Section 2(k) defines “khas possession” as the possession of a proprietor or tenant of any agricultural or horticultural land when the proprietor or tenant cultivates the land himself, or carries on horticultural operations himself, using his own stock, his own servants, hired labour, or hired stock. The plaintiffs argued that they should be deemed to have been in khas possession of the suit land on the date of vesting, that is, 1 January 1955, because the land fell within the third category of Section 6(1)(c), namely land forming the subject‑matter of a subsisting mortgage whose redemption entitled the intermediary to recover khas possession. The plaintiffs further submitted that the term “khas possession” should be interpreted not only as literal physical possession under Section 2(k) but also to include constructive possession, where physical possession rests with another person who holds the property derivatively, in trust, or with the plaintiff’s permission, either express or implied. To support this view, counsel relied on the Full Bench decision of the Patna High Court in Mahanth Sukhdeo Das v. Kashi Prasad Tiwari, where lands physically possessed by one co‑sharer were held to be in the khas possession of all co‑sharers under Section 2(k). Counsel also argued that where a mortgagee continues in possession of property that is usufructuarily mortgaged, the mortgagee’s possession is permissive and therefore the mortgagor remains in khas possession despite the mortgagee’s physical control.

After the mortgage had been paid and the debt discharged, the Court observed that the property continued to be in “the khas possession” of the mortgagor. The Court explained that the mortgagee did not hold the property in a hostile manner toward the mortgagor; rather, the mortgagee’s possession had arisen by permission. Consequently, the law deemed the mortgagee to continue holding the property as a mortgagee even after payment. The Court based this view on the principle that, in a usufructuary mortgage, the discharge of the mortgage debt does not automatically terminate the mortgagor‑mortgagee relationship. The relationship would only end when the mortgagee fulfilled his obligation of returning possession of the property, which he held as part of the mortgage security. On this reasoning, the Court accepted the contention that a suit filed by the mortgandor to recover possession from the mortgagee of property held under a usufructuary mortgage could properly be described as “a suit for redemption,” even though the mortgage debt had already been satisfied. For this last proposition, counsel relied on several authorities, including the decision reported in A. I. R. 1938 Patna 638 and the construction of section 10 of Bengal Regulation XV of 1793, as well as the judgment in I. L. R. 1933 Allahabad 97. The Court also noted the finding of the lower courts that the first and second defendants had entered into possession of the land as tenants for a term during the existence of the 1897 rehan. The Court held that those defendants could not claim any superior rights beyond those of the mortgagee and that they were bound by the same equities and estoppel that applied to the mortgagee who had let them into possession. Accordingly, counsel submitted that section 6(1)(c) of the Act applied because the redemption, understood as the return of possession to the mortgandor, had not occurred on 1 January 1955—the date on which the land vested in the State Government. Before proceeding further, the Court turned to an argument raised by counsel for the respondent. The respondent’s counsel submitted that, based on the material on record, the High Court’s finding that the land was zeraiti land belonging to the plaintiffs could be successfully challenged. He argued that the evidence produced by the contesting defendants demonstrated that they had been in possession and were cultivating the suit lands even before the rehan bond of 1897, and that this misappreciation of evidence was so serious that it fell within the narrow exception to the rule that this Court does not permit questioning of concurrent factual findings. However, the Court declined to allow counsel to address these points for two reasons. First, the contesting defendants had not filed any appeal against the High Court’s judgment, which granted the plaintiffs a declaration that the land was zeraiti and a decree for mesne profits up to 31 December 1954.

The Court observed that even if the respondents were able to prove that the land in dispute was raiyat land rather than zeraiti land, such a finding would not alter the decree that had already been issued. The only practical effect of that determination would be that the respondents could continue to oppose the plaintiffs’ request for relief of possession. The Court further explained that it had declined to allow the parties to argue about the findings concerning the tenure of the land for two principal reasons. First, the Court was not persuaded by the legal arguments presented by the appellant, and, when those arguments were examined in the context of the factual record, the Court concluded that the appeal must therefore be dismissed. Second, the Court clarified that it should not be interpreted as having either affirmed or rejected the observations made by the trial judge and the High Court regarding the zeraiti nature of the property or the claims of the first and second defendants to occupy the land. The Court then recalled the statutory provision contained in section 6(1)(c), which provides that the zeraiti land of a proprietor is deemed to be in the proprietor’s “khas possession” when the land is the subject of a usufructuary mortgage that was still subsisting on 1 January 1955 and the mortgagor retains a right to recover possession of that land.

According to the appellant’s argument, the conditions specified in the statutory provision were satisfied because the appellants contended that, as long as the mortgagors had not obtained redelivery of possession, the re‑han of 1907 remained “alive” and “subsisting” even though the mortgage debt had been fully paid and discharged in 1941. Counsel referred the Court to section 62 of the Transfer of Property Act and to article 148 of the First Schedule of the Indian Limitation Act, which characterise a suit for possession by the mortgagor as a suit against the mortgagee and thereby imply that the mortgagor‑mortgagee relationship continued for the entire sixty‑year period prescribed in column 3 of the schedule. Counsel also cited several decisions of various High Courts that support the view that a mortgagee who remains in possession of mortgaged property after the mortgage money has been repaid holds that property for the mortgagor, essentially in trust. The Court stated that it was unnecessary to engage further with those submissions or to record any opinion on them, because, on the facts of the present case, the legal principles raised were not materially relevant. It was undisputed that even a mortgagee, and a‑fortiori any other person who acquired possession through the mortgagee, could, by overt acts and open claims, hold the property in his own right and in a manner adverse to the mortgagor. Nonetheless, counsel Mr Sarjoo Prasad relied on observations made in the full bench judgment of the Patna High Court in Sukdeo Das v. Kashi Prasad, where the learned judges appeared to treat the possession of a trespasser—who had not perfected title by adverse possession under the Indian Limitation Act—as equivalent to “khas possession”.

The Court observed that equating the mere right to possession with the concept of “khas possession” was unsupported by any legal principle or authority. It noted that the Full Bench of the Patna High Court had treated constructive possession as falling within the meaning of khas possession, and therefore the suggestion that a person who had not perfected a title by adverse possession for the period prescribed under the Indian Limitation Act could nevertheless be said to enjoy khas possession of the true owner’s land was untenable. The Court therefore rejected the proposition that any possession, however informal, could automatically be regarded as khas possession simply because it was possessed. This view was expressed in contrast to the earlier observation of the Patna High Court Full Bench, which had linked constructive possession with khas possession, showing an inconsistency that the Court could not accept.

In the present case, the Court found that the possession exercised by the contesting defendants was clearly in their own right and was adverse to the plaintiffs. The plaint stated that the mortgagees had, after fulfilling their obligations, restored the mortgagors to possession of the property they could lawfully occupy, and that it was the contesting defendants who, by asserting occupancy rights, had prevented the plaintiffs from taking possession. Accordingly, the situation was not one of a mortgagee continuing in possession after the debt had been discharged, but rather one of occupants who claimed a right to retain possession by asserting a title that was hostile both to the mortgagee and to the mortgagors. The Court emphasized that the plaintiffs’ plea regarding the nature of the defendants’ possession was therefore crucial; if the defendants were indeed admitted trespassers, they could not be said to hold the property on behalf of the mortgagors, and the argument that the land remained in the plaintiffs’ khas possession would collapse. Paragraph 10 of the plaint expressly declared, “it is quite clear that the defendants 1st party or 2nd party have no kasht right in the disputed lands as against the plaintiffs, and after redemption of the rehan, their possession and occupation are quite wrongful.” The subsequent paragraph, reproduced in full, explained that on 8 June 1941 the plaintiffs, having paid the entire rehan money and redeemed the rehan property under the bond dated 10 June 1907, entered into possession and occupation of the rehan property covered by the bond. When the plaintiffs attempted to take possession of the disputed land listed in Schedule No 3, the defendants, acting in concert, refused to allow entry and committed what the plaint described as a “fresh invasion” against the plaintiffs’ title. The defendants further asserted that they were lawfully in possession as tenants cultivating raiyati land and claimed that they had acquired that right through adverse possession for more than twelve years and as settled raiyats, a status allegedly accepted by the maliks. The Court therefore needed to determine whether the defendants had acquired any right in the suit land by adverse possession, a question that hinged on ascertaining the precise date when their possession became adverse.

In this case the Court identified Issue No 9, which asked whether the second defendant or the first defendant had acquired any right in the suit land by adverse possession. To answer that issue the Court needed to determine the exact date when the defendants’ possession became adverse. The trial judge had recorded his finding in the following terms: the tenancies in the raiyati land that formed the subject of the suit, and any tenancies that might have been created by the defendants during their occupancy, automatically terminated when the plaintiffs redeemed the mortgage in 1941. Consequently, from the moment of redemption the possession of both the first defendant and the second defendant became that of a trespasser as against the plaintiffs. Because the suit was instituted within twelve years of the 1941 redemption, the limitation period had not expired, and the plaintiffs were therefore entitled to recover khas possession of the suit land. The trial judge further held that the plaintiffs could treat both defendants as trespassers, and that their possession became adverse to the plaintiffs from the date of redemption, that is, from 1941. Since the suit was filed within the twelve‑year period prescribed, the plaintiffs’ right to recover khas possession was not barred by limitation. The same conclusion was reiterated later in the judgment. The High Court had not addressed this aspect of the case, apparently because the claim that the contesting defendants had obtained title by adverse possession for more than twelve years was never raised before it, given its findings on other matters.

The authorities cited by counsel for the petitioner only extended to the proposition that where a mortgagee continues to occupy the property after redemption, the mortgagor’s right to sue for recovery is governed by the sixty‑year rule, which is based on the continuing mortgagor‑mortgagee relationship. However, those authorities also demonstrate that if a mortgagee, by some overt act, renounces his status as mortgagee and asserts title in his own name, with the mortgagor’s knowledge, his possession thereafter ceases to be that of a mortgagee and instead becomes that of a trespasser. In such a situation, a suit for recovery of the property is governed by Article 144, and the limitation period begins on the date when the possession became adverse by an overt manifestation of intention. This principle applies even more strongly when the court deals not with the mortgagee’s possession but with that of another party, such as the tenants in the present case. After the mortgage was redeemed, the tenants resisted the mortgagor’s claim to possession and asserted that they were entitled to remain as kasht tenants. Their refusal rendered their possession wrongful, which gave rise to a claim for mesne profits and formed the basis for treating them as trespassers in the suit for recovery of possession.

Because the tenants were held to be trespassers, a suit was instituted against them and an order for recovery of possession was sought. In the circumstances the Court examined the contentions advanced by the appellants and concluded that it was not tenable for them to maintain that the tenants occupied the land in the name of the mortgagor or that the tenants’ title derived in any way from the mortgor’s rights. The Court observed that the statutory provision identified as Section 6 (1) (c) could not be invoked, since the relationship between mortgagor and mortgagee had ceased to exist on 1 January 1955, even if the construction of law advocated by counsel for the appellant were accepted. Accordingly, the appeal could not succeed. The Court therefore dismissed the appeal, ordered that it be dismissed with costs, and recorded that the appeal was dismissed.