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1904 DIGILAW 179 (ALL)

Musafir Rai v. Musammat Lagan Barta Kuar

1904-12-20

BANERJI, STANLEY

body1904
JUDGMENT : BANERJI, J. This appeal under the Letters Patent arises out of a suit brought by the plaintiffs-respondents for recovery of possession of an occupancy holding and for mesne profits. They applied to the Court of Revenue for ejectment of the defendants upon the allegation that the defendants were their sub-tenants. The defendants denied that they were sub-tenants and asserted that they were mortgagees of the land. The Revenue Court found in their favour and rejected the application for ejectment. Thereupon the present suit was brought. The plaintiffs stated in the plaint that the defendants were not and never had been the mort-gagees of the land in suit and that their possession was that of trespassers and was unlawful. The court of first instance found that the defendants were the sub-tenants of the plaintiffs and decreed the claim. The lower appellate court was of opinion that the defendants were mortgagees, but that they had failed to prove the amount of the mortgage money and the terms of the mortgage, and that therefore the plaintiffs were entitled to possession. That Court accordingly affirmed the decree of the first court. A second appeal preferred to this Court having been dismissed, this appeal under the Letters Patent was brought. 2. In our judgment the appeal must prevail. As the defendants are admittedly in possession and have been found to be in possession at least since the year 1884, and as they deny the plaintiffs' title to possession and plead limitation, it was for the plaintiffs to prove not only that they have a title to the property in question but also that the title subsisted at the date of the suit. If as alleged in the plaint, the possession of the defendants is that of trespassers, since the defendants have been in possession for more than twelve years, any rights which the plaintiffs had to the property have become extinct by reason of the adverse possession of the defendants, If, as the lower appellate court has found, the defendants were mortgagees of the property, the plaintiffs are not entitled to present possession unless they can establish that the mortgage has determined and that their right to possession accrued within twelve years prior to the date of the institution of the suit. 3. 3. The plaint, it is true, contains a prayer in the alternative to the effect that in the event of the defendants being found to be in possession as mortgagees, a decree may be passed for redemption of the mortgage. If the suit be deemed to be one for redemption, the plaintiffs would have to prove the existence of a subsisting mortgage which they are entitled to redeem. This they have not done. On the contrary they deny that the defendants are mortgagees. Under these circumstances the plaintiffs' suit ought to have been dismissed. This case is very similar to that of Lal Mukand Singh v. Jageshar Singh, [1894] A.W.N., 167. We allow the appeal and, setting aside the decree of this Court and those of the courts below, dismiss the plaintiffs' suit with costs in all Courts.