Judgment 1. This second appeal is by the defendants second party against a judgment of affirmance in suit for redemption. 2. The plaintiffs brought a suit for redemption of the mortgage bond dt. 24-6-1921 alleged to have been executed by the ancestors of the plaintiffs in favour of defendants second party. According to the plaintiffs, Anant Lal and his brothers (ancestors of the plaintiffs) had executed a usufructuary mortgage bond for a consideration of Rs. 1350.00 on 24-6-1921 in favour of Rup Narain Pathak (defendant 1st party) who was put in possession over the mortgage property i.e. the lands covered by Schedule No. 1 of the plaint. According to the plaintiffs, there was some dispute between the families of the plaintiffs and defendants regarding the lands and the matter was referred to arbitration. The arbitrator gave an award on 16-3-1915 and, according to the plaintiffs, by virtue of that award an area of 13 acres 1 decimal as described in Schedule 1 of the plaint remained with the plaintiff family and the remaining lands, though recorded in the names of Anant Lal Singh and other (ancestors of the plaintiffs), were adjudged by the Punches to belong to the family of the defendants and the parties accordingly came and continued in possession. The case of the plaintiffs was that they tendered the sudbharna money to defendants first party on 30th Baisakh 1867 Fasli, but the sudbharnadars refused to accept the amount which necessitated the filing of the present suit. 3. The defendants first party, the alleged sudbharnadars did not enter appearance in this suit and the suit was contested only by the defendants second party (hereinafter referred to as the contesting defendants). 4. The case of the contesting defendants was that, in fact, 40 bighas of lands was owned and possessed by the ancestors of these defendants. But taking advantage of the infirmity of old age of Gopal Singh and another (ancestors of the plaintiffs), Anant Lal Singh, who was their near relation, got his name recorded in the survey records of right over the lands owned and possesed by the family of the contesting defendants. The contesting defendants denied the story of Panchayati and award. 5. But taking advantage of the infirmity of old age of Gopal Singh and another (ancestors of the plaintiffs), Anant Lal Singh, who was their near relation, got his name recorded in the survey records of right over the lands owned and possesed by the family of the contesting defendants. The contesting defendants denied the story of Panchayati and award. 5. The main defence was that Gopal, Brijlal Singh and Munshi Singh, who had executed a mortgage deed in favour of Anant Lal Singh on 22nd Baisakh, 1306 Fasli which was redeemed on 15th Baisakh 1333 Fasli. Then the defence put forth regarding the sudbharna deed in question was that Rupan Singh and Sitabi Singh (ancestors of the contesting defendants) were in need of money and they really executed sudbharna deed in question in favour of Rup Narain Pathak. But as the lands were recorded in the name of Anant Lal (ancestors of the plaintiffs) the mortgage deed in question was executed by Anant Lal Singh and his brothers at the instance of the mortgagees. Thus, in short, the main defence was that Anant Lal and his brothers (ancestors of the plaintiffs) who are said to have executed mortgage deed in question were only name lenders. The further defence was that the mortgage deed in question was redeemed in Baisakh 1334 Fasli and since then the defendants second party having been coning in possession exclusively and thus had also acquired title by adverse possession. Thus the contesting defendants pleaded that the plaintiffs had no right, title or interest in the suit properties and that they were entitled to no relief at all. 6. The trial Court decreed the suit. The trial Court held that the plaintiffs were entitled to a decree for redemption. It also held that sudbharna in question, in fact, was not redeemed as alleged by the defendants second party. It also held that the defendants second party, of late, had come in possession of the mortgaged property in collusion with the defendants first party but that did not confer any right on the defendants second party. It also held that the executants of the mortgage deed in question were not mere name lenders, as alleged by the contesting defendants. 7. With these findings the trial Court decreed the plaintiffs suit. 8. Aggrieved by the judgment and decree of the trial Court the defendants second party preferred an appeal. It also held that the executants of the mortgage deed in question were not mere name lenders, as alleged by the contesting defendants. 7. With these findings the trial Court decreed the plaintiffs suit. 8. Aggrieved by the judgment and decree of the trial Court the defendants second party preferred an appeal. The lower appellate Court affirmed the findings of the trial Court and dismissed the appeal. It held that the plaintiffs had executed the mortgage deed in question and they had subsisting title and possession over the suit land at that time. It also held that the executants of the mortgage deed in question were not mere name lenders, as alleged by the contesting defendants. It further held that the contesting defendants had no title and possession over the suit land in question and they had no right of redemption and in fact the redemption, if any, in 1334 (wrongly typed in the judgment as 1324) as alleged by the contesting defendants would not be deemed to be a redemption in the eye of law. It further held that even if the contesting defendants redeemed the mortgage in question, their status and position remained the same as that of the mortgagee Rup Narain Pathak so far as the suit land was concerned. 9. With these findings, the appeal preferred by the defendants second party was dismissed. Hence this second appeal by the defendants second party. 10. The learned counsel for the defendants appellants submitted that the view taken by the Court of appeal below to the effect that the status and position of the defendants second party was the same as that of the mortgagee was wholly erroneous in law, after the alleged redemption by them. Hence this second appeal by the defendants second party. 10. The learned counsel for the defendants appellants submitted that the view taken by the Court of appeal below to the effect that the status and position of the defendants second party was the same as that of the mortgagee was wholly erroneous in law, after the alleged redemption by them. The learned counsel appearing for the appellants contended that the defendants second party/appellants having pleaded title by adverse possession, it was incumbent upon the Court of appeal below (final Court of fact) to have discussed this alternative plea of the contesting defendants also and the lower appellate Court having totally ignored taking into consideration this plea of the contesting defendants, the judgment and decree of the Court of appeal below were fit to be interfered with and lastly, that the lower appellate Court having failed to discuss the oral evidence on the question of possession adduced by the contesting defendants, the judgment under appeal was not in accordance with law; more so, when the contesting defendants had alternatively pleaded title by adverse possession. 11. Both the Courts below have concurrently held that the executants of the mortgage deed in question were not name lenders, as alleged by the contesting defendants. Thus the executants of the mortgage deed in question (i.e. the ancestors of the plaintiffs) were the real mortgagors. There is always the right to redeem with the mortgagor. The question is whether in the instant case, on the facts of the present case, the plaintiffs had right to redeem the mortgage in question. The contesting defendants alleged redemption by them and also claimed to have come in possession of the properties in suit after the redemption. The Courts below have held that there was no redemption as alleged by the contesting defendants. But nonetheless, the trial Court had held that of late the defendants second party had come in possession of the mortgage property in collusion with the defendants first party. The Courts below have held that there was no redemption as alleged by the contesting defendants. But nonetheless, the trial Court had held that of late the defendants second party had come in possession of the mortgage property in collusion with the defendants first party. Then the question arises whether the possession of the defendants second party, though in collusion with the defendants first party, could be said to be possession as the mortgagee (having stepped into shoes of the mortgagee) or whether the possession of the defendants second party was that of a intruder/stranger, if they had no right to redeem and if redemption was done (though Courts below have held no redemption was done) whether in such a case, the defendants second party could prescribe against the mortgagor ? 12. It is well settled that where a person who has no interest in the equity of redemption or the property mortgaged pays off the mortgage and goes into possession, he is a mere volunteer with no equities in his favour and is not subrogated to the rights of the mortgagee. In such a situation a suit for possession against him by the owner of the equity of redemption, without paying the mortgage money is maintainable. In fact, under such a situation, such a suit, if brought, is not a suit for redemption. It is also well settled that if the owner of the equity of redemption fails to bring a suit for possession, the equity of redemption that he possesses may be lost by prescription. It is well settled that where a trespasser dispossesses a mortgagee in possession and continues in possession asserting a title adverse to the mortgagor also, such dispossession will be adverse to the mortgagor from the time the mortgagor had knowledge of the assertion. If a stranger dispossesses a mortgagee in possession, whether adverse possession will run against the mortgagor or not, depends upon the fact whether there was dispossession of the mortgagor also. 13. In the present case, the contesting defendants do not allege dispossession of the mortgagee but they did allege the dispossession of the mortgagor and claim independent title by adverse possession. In such a situation, I hold that the defendants second party had not stepped into the shoes of the mortgagee. 13. In the present case, the contesting defendants do not allege dispossession of the mortgagee but they did allege the dispossession of the mortgagor and claim independent title by adverse possession. In such a situation, I hold that the defendants second party had not stepped into the shoes of the mortgagee. I further hold that on the facts of this case, the contesting defendants were mere strangers over the property in suit. In this view of the matter when they had pleaded title by adverse possession, it was incumbent upon the Court below to have gone into that question. It seems the Court of appeal below on a misconception of law that the contesting defendants had stepped into the shoes of Rup Narain Pathak as a mortgagee, did not go into the question of adverse possession and limitation. Having held that the plaintiffs and their ancestors (mortgagors) were not mere name lenders, it was all the more necessary for the Court of appeal below to have considered the question of adverse possession and limitation, as pleaded by the contesting defendants. The learned counsel for the parties have taken me through the judgment under appeal in detail and I find that the Court of appeal below has held that the plaintiffs witnesses had not given a correct account regarding the factum of possession. At the same time the Court of appeal below held : "If collusively the appellants came in possession over the suit lands they will not acquire any better interest than what Rup Narain Pathak had and they cannot claim hostile title against the rightful owner, namely: the plaintiffs respondents. If the appellants could obtain an endorsement of redemption and if they in collusion with Rup Narain Pathak came in possession over the suit land, they cannot claim absolute ownership and title adversely against the contesting respondents". 14. Thus the finding, as just quoted above does give an impression that the contesting defendants did come in possession, according to the Court of appeal below, in collusion with the defendants first party. 14. Thus the finding, as just quoted above does give an impression that the contesting defendants did come in possession, according to the Court of appeal below, in collusion with the defendants first party. In this view of the matter, the real question of law that had to be considered by the Court of appeal below was whether such a person (defendants second party) had, in fact, dispossessed the mortgagor and if the mortgagor was dispossessed then, under such circumstances, whether the defendants second party could prescribe against the mortgagor; as, if a person having no interest in equity of redemption still redeems the mortgage, he is not subrogated to the rights of mortgagee. Such a person is a mere volunteer with no equities in his favour and if the owner of the equity of redemption fails to bring a suit for possession, the equity of redemption that he possesses may be lost by prescription. 15. As I have already stated above, the Court of appeal below has not gone into the question of possession at all and obviously, on a misconception of law. Thus, I hold that all the submissions advanced by the learned counsel for the defendants second party/appellants have enough force. I hold that the judgment under appeal is not in accordance with law. 16. In the result, the appeal is allowed. The judgment and decree under appeal are set aside and the case is sent back to the lower appellate Court for fresh decision, after hearing the parties, on the materials already on the record and in accordance with law. 17. However, in the circumstances of the case, there will be no order as to costs.