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1904 DIGILAW 169 (ALL)

Muhammad Hasan v. Mool Chand

1904-12-06

AIKMAN, TURNER

body1904
JUDGMENT : BURKITT, J. In our opinion the decision of the learned Judge is right. It is unnecessary for us to enquire whether the possession of Gulshan had or had not become adverse to the mortgagees, the representatives of Raja Ali Hatim. That is immaterial in this case. What the court of first instance found was that the possession of Gulshan Ali was adverse to the mortgagor. The learned District Judge says that he has been unable to discover anything to show that the, possession of Gulshan Ali was adverse to the mortgagor, and it has been more than once laid down by the High Courts of this country that possession which may be adverse to the mortgagee, is not necessarily adverse to the mortgagor, the reason being that the possession adverse to the mortgagor can only arise after the mortgagor has become entitled to immediate possession. 2. Here the mortgagor was not entitled to such possession, nor would he be entitled to it until he redeemed the mortgage. We cannot say that any steps taken apparently without any statutory authority by the Assistant Collector or Tahsildar to remove the name of the original vendor from the record and substitute that of Gulshan Ali as owner could in any way affect the title of Husain Bakhsh or constitute adverse possession against him (Husain Bakhsh) in Gulshan Ali. As authority for the proposition we have just laid down, we refer to the case of Chinto v. Janki, [1894] I.L.R., 18 Bom., 51 and the observations of Mr. Justice MARKBY in Bejoy Chunder Banerjee v. Kally Prosonno Mukerjee,[1879] I.L.R., 4 Cal., 327 at p. 339. For these reasons we affirm the decree of the Court below, and dismiss this appeal with costs.