Panna Lal v. Bibi Taslima Khatun — 1997 DIGILAW 606 (PAT)

JUDGMENT G. S. Chaube, J. This appeal arises out of the judgment and decree passed by the 2nd Addl. Sub-Judge of Motihari in Title Suit No. 139 of 1968. The suit was for possession of 5 bighas, 6 kathas bakast lands appertaining to plot nos. 878 and 881 of khata no. 2 be sides 10 kathas and 1 1/2 dhurs lands of plot nos. 863, 135 and 2 of khata no. 103 in the district of west Champaran and mesne profits. 2. The facts on which the plaintiffs, six in number, had based their claim for possession and mesne profits are that the ancesters of defendants 2nd party, who were the tenure holders, had executed a jarpeshgi mortgage in favour of the defendant 1st party in the suit respecting Schedule-A properties which included mokarri interest to the extent of 6/-annas in tauzi no. 729 of viHage Madhuri, 6 kathas equivalent to 45 decimals Brit lakhraj in village Laukari appertaining to plot no 499 of khata no. 251 of tauzi no. 951; and 5 bighas, 10 kathas bakast lands of plots no.878 and 881 of khata no. 2 situate at village Madhuri and the mortgagee was put in possession. The mortgage was created on the basis of registered document dated 25-8-1944 for a period of five years. The mortgage money was Rs. 24,551/-. Before the mortgage could be redeemed the mokarri tenure of the mortgagors vested in the State of Bihar with effect from 26-1-1955 in accordance with the provisions of the Bihar Land Reforms Act. 1950 (herein after to be referred to as 'the Act') According to the plaintiffs, in consequence of vesting the defendants 2nd party acquired occupancy right respecting the bakast and gairmajrua lands and buildings including those comprised in the mortgage dated 25-8-1944. However, the mortgagee defendant 1st party remained in occupation of the lands including 5 Bighas 10 kathas bakast lands of plot nos. 878 and 881. It is further case of the plaintiffs that on the basis of five registered deeds of sale dated 25-4-1967 they purchased the entire bakast lands under mortgage as also buildings standing over plot nos. 863 and Some other lands of plot nos. 135 and 2 of khata no 103 from the defendants 2nd party on payment of valuable consideration. Plaintiffs no. 1 to 3 purchased 2 bighas, 5 kathas lands of plot nos. 863 and Some other lands of plot nos. 135 and 2 of khata no 103 from the defendants 2nd party on payment of valuable consideration. Plaintiffs no. 1 to 3 purchased 2 bighas, 5 kathas lands of plot nos. 878 and 881 mentioned in Schedule-B; plaintiff no. 4 purchased 2 bighas 16 kathas lands of the same plots mentioned in Schedule-B, B (i) and B (ii) : plaintiff no. 5 acquired 14 kathas 1½ dhurs lands of plots no. 878, 863, 135 and 2 mentioned in Schedule B (iii) and plaintiff no. 6 purchased 5 kathas land of plot no. 878 mentioned in Schedule B (iv). The lands so purchased by the plaintiffs ate the subject matter of the suit and shall hereinafter be referred to as "the suit lands." According to the plaintiffs, the mortgagee defendant 1st party notified his claim on the mortgage to the Claim Officer in accordance with the provision of section 14 of the Act and the Claim Officer decreed that the entire mortgage money was recoverable from the amount of compensation payable to the mortgagors tenure holders, namely, the defendants 2nd party, in consequence of taking over of their intermediary interest by the State. The mortgage having become extinct, they became entitled to recover possession d their respective purchased lands from the defendant 1st party. They further contended that even though the mortgagee was expressly prohibited from making settlement of or creating any raiyati interest respecting the lands under mortgage, the defendant 1st party settled Schedule-B (iii) lands which comprised a building and gairmajrua lands with the defendants 3rd party. Therefore, the settlees did acquire no interest in those lands. Having acquired title to the suit lands on the basis of the sale deeds dated 24-5-1967, the plaintiff’s immediately after the purchase approached the defendant 1st party to deliver possession of the suit lands, but were not obliged. Hence the suit for recovery of possession and mesne profits. 3. In their written statement the defendants 2nd party, naturally, supported the case of the plaintiffs. However, the defendant 1st party contested the claim of the plaintiffs by filing a written statement. Hence the suit for recovery of possession and mesne profits. 3. In their written statement the defendants 2nd party, naturally, supported the case of the plaintiffs. However, the defendant 1st party contested the claim of the plaintiffs by filing a written statement. He admitted in his written statement his statatus as a jarpeshgi mortgagee under the defendants 2nd party respecting Schedule-A properties which also comprised the suit lands; and that on vesting of their tenure the defendants 2nd party had become statutory tenants respecting the bakast lands under the mortgage. As regards gairmajrua lands and building comprised in Schedule-B (iii) properties, he contended that those lands were orally sttled by the defendants and party themselves in favour of the defendants 3rd party who become tenants under the State in consequence of the vesting. He further pleaded that the mortgage created under the deed of 1944 still subsisted inspite of the settlement of his claim by the Claim Officer. Therefore, he was legally entitled to retain possession of the bakast lands until the mortgage was redeemed by making payment of the entire mortgage money. Subsequently, by filing an additional written statement the said defendant took further plea of adverse possession. He also sought dismissal of the suit of the plaintiffs on the ground of misjoinder of causes of action and non-joinder of the State as a necessary party to the suit. 4. In his separate written statement defendant no. 18 of the 3rd party claimed to have acquired title to plot no. 863 of Schedule-B (iii) on the basis of oral sale by defendant no. 3 and his brothers (of the 2nd party). Defendants no. 15 to 17, 19 and 20 filed a joint written stakment claiming title to the lands of plots no. 2 and 135 and 12 dhurs of plot no. 863 of Schedule-B (iii) on the basis of settlement by the State and adverse possession. 5. As many as 11 issues were raised by the learned Sub-Judge for detrmination in the suit. 15 to 17, 19 and 20 filed a joint written stakment claiming title to the lands of plots no. 2 and 135 and 12 dhurs of plot no. 863 of Schedule-B (iii) on the basis of settlement by the State and adverse possession. 5. As many as 11 issues were raised by the learned Sub-Judge for detrmination in the suit. The main issues related to the questions whether the defendant 1st party was entitled to proceed against bakast and other lands under the mortgage for realisation of the mortgage money or could he proceed under section 14 of the Act; whether the plaintiffs were entitled to recover possession of the suit lands and mesne profits on the basis of their respective purchases; and/or whether the defendants 1st and 3rd parties had perfected their title to the suit lands by ad verse possession. On pleadings and evidences adduced by the parties the learned 2nd Addl. Sub-Judge who came to hear the suit, held that in view of the provisions of the Act the mortgagee defendant 1st party could proceed only under section 14 of the Act and not against the mortgage properties, particularly bakast land which stood settled with the defendants 2nd party in view of the provision of section 6 of the Act; that the plaintiffs other than plaintiff no. 5 were lawful transferees for value respecting the suit lands from the defendants 2nd party; and that mortgagee defendant 1st party was not only precluded from taking plea of adverse possession in his additional written statement, he also fai1ed to prove that he was in adverse possession of those lands continuously and openly for more than 12 years prior to the institution of the suit by the plaintiffs. The learned Sub-Judge also held that all the plaintiffs could validly club causes of action in one suit; that State was not a necessary party to the suit; and that the suit for possession and mesne profits was instituted well within the period prescribed by Articles 65 and 51 of the Limitation Act, 1963. However, the learned Sub-Judge held that plaintiff no. 5 failed to prove by adducing any evidence, muchless toe document of sale in his favour, to prove that he had acquired Schedule-B (iii) properties from the defendants 2nd party. However, the learned Sub-Judge held that plaintiff no. 5 failed to prove by adducing any evidence, muchless toe document of sale in his favour, to prove that he had acquired Schedule-B (iii) properties from the defendants 2nd party. Consequently, he decreed the suit for possession respecting Schedule-B, B (i), B (ii) and B (iv) lands in favour of the plaintiffs other than plaintiff no. 5 with right to recover mesne profits for a three years period next preceding the institution of the suit as also future mesne profits; and non-suited plaintiff no. 5. The mortgagee defendant 1st party was also directed to bear cost of the suit of the plaintiffs. Aggrieved by the Judgment and decree aforesaid, the mortgagee defendant 1st party has taken the appeal to this Court. No appeal has been preferred by plaintiff no. 5 whose claim for possession and mesne profits respecting Schedule B (iii) properties was dismissed. 6. When the appeal was called on for hearing, nobody appeared on behalf of the respondents, even though the Dames of the learned counsel for the respondents were appearing on the daily list. Therefore, only the counsel for the appellant was beard. 7. Learned counsel appearing for the sole appellant/mortgagee defendant 1st party has contended that the entire tenure interest of the mortgagors defendants 2nd party having vested in the State free from all encumbrances they could not convey an) title to the plaintiffs on the basis of the sale deeds executed on 24-5-1967 and even if the suit lands shall he deemed to have settled with them and they could validly convey title respecting the same to the plaintiffs, the latter not having taken any steps to resume or recover possession, the appellant started prescribing and the claim/suit brought to the court on 24-5-1968 was barred by limitation. He further contended that the learned Sub-Judge committed an error in holding that in view of his statement in the written statement that the mortgage still subsisted in consequence of not having been lawfully redeemed the said defendant could not be permitted to take plea of adverse possession more so in additional written statement which was permitted to be filed in consequence of certain amendment in the plaint. He further submitted that since the plaintiffs had acquired title to the suit lands on the basis of documents dated 25-4-1967 whereby the right to recover mesne profits had not been transferred, the learned Sub-Judge erred in granting decree of mesne profits in their favour or three years period next preceding the date of institution of the suit. They could be entitled to mesne profits only from the date of their respective purchases. 8. After the dismissal of the claim of plaintiff no. 5 respecting Schedule-B (iii) properties which included some gairmajrua lands and a building standing over plot no.863 which, according to the plaintiffs, were un-authorisedly settled by the mortgage defendant 1st party in favour of the defendants 3rd party, (the latter claiming settlement by the mortgagors tenure holders themselves), hardly there remains any dispute on factual aspect of the case in the appeal. It is admitted by the parties that the suit lands appertaining to plot nos. 878 and 881 mentioned in Schedule-B, B (i), (ii) and 3 (iv) were the bakast lands of the mortgagors defendant 2nd party and were mortgaged in favour of the defendant 1st party on the basis of a registered deed of mortgage dated 25-8-1988. It is also undisputed a fact that the tenure interest of the mortgagors defendants 2nd party including properties and the lands under mortage vested in the State of Bihar with effect from 26-1-1955. There is no dispute that at the time of the vesting the mortgage- in question still subsisted not having been redeemed or fore-closed prior thereto. Therefore, the points for consideration in the present appeal are whether in consequence of the vesting of the tenure of the vendors of the plaintiffs, namely, defendants 2nd party, the latter could acquire any right, title and interest respecting the bakast lands in suit so as to convey a valid title to the plaintiffs. Secondly, whether the appellant mortgagee defendant 1st party was entitled to retain possession of the bakast lands in suit under mortgage on the ground that the mortgage was not redeemed. Secondly, whether the appellant mortgagee defendant 1st party was entitled to retain possession of the bakast lands in suit under mortgage on the ground that the mortgage was not redeemed. Thirdly, whether the suit for possession having been not presented within 12 years from the date of the vesting the right, title and interest of the plaintiffs and/or their vendors had extinguished by adverse possession of the appellant defendant 1st party so that no decree for possession and mesne profits could be passed in favour of the plaintiffs. 9. Learned counsel for the appellant argued that since the suit lands, vested in the state in accordance with the provision of section 4 (a) of the Act, the plaintiffs could not obtain decree for possession. He placed reliance on the decision of the apex Court in the case of Nathuni Prasad Singh & ors-vs-Bishwanath Singh Sharma and ors. 1917 PLJR 591 (S.C.) in which it was held that a decree for possession cannot be obtained by a landlord and owner after the land has vested in the State. The decision relied upon by the learned counsel does not help the appellant in view of the fact that the facts on which the decision was rendered were quite different from the facts in the present case. In the case referred to above the plaintiff landlord had claimed declaration of title and recovery of possession together with mesne profits on the ground that the possession of the defendant in the suit had become unlawful in consequence of an order made by a criminal court in a proceeding under section 145 of the Code of Criminal Procedure. However, in the present ease the facts are that the defendant 1st party was in possession of the suit lands which were of the nature of bakast of the mortgagorstenure holders and on the date of the vesting of the tenure the mortgage still subsisted. According to section 4 (a) of the Act all rights and interests of a proprietor or tenure holder other than those expressly saved by or under the provisions of the Act had vested in the State free from all the encumbrances. According to section 4 (a) of the Act all rights and interests of a proprietor or tenure holder other than those expressly saved by or under the provisions of the Act had vested in the State free from all the encumbrances. However, section 6 of the Act provided that on and from the date of vesting all lands used for agricultural or horticultural purposes, Which were in khas possession of an intermediary on the date of such vesting, including, inter alia, lands used for agricultural or horticultural purposes forming the subject matter of a subsisting mortgage on the redemption of which the intermediary was entitled to recover khas possession thereof shall be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupancy rights in respect of such lands subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner. 10. In the case of Jagarnath Sahu and ors. vs. Suba Singh and ors, 1962 BLJR XXVI, a Division Bench of this Court held that the combined effect of sections 4 and 6 of the Land Reforms Act is that on the vesting of the estate or tenure in the State the agricultural or horticultural lands in the khas possession of the intermediary do not pass to, or vest in, the State. The State is entitled only to realise rent from them because as provided in section 6 all such lands will be redeemed to have been settled with the our going proprietor or tenure holder. In the case of Shivashakar Plasad Sah and anr. vs. Baikunth Nath Singh and ors. AIR 1969 S.C. 971 = 1970 PLJR 197 (SC) their lordships of the Supreme Court held that reading sections 3, 4 and 6 to gether it follows that all Estates notified under section 3 vest in the State free of an encumbrances. The quondam proprietors and tenure holders of those Estates lose all interest in those Estate. As proprietors, they retain no interest in respect of them whatsoever. But in respect of lands enumerated in section 6 the Estate settle on them the rights of raiyats. The quondam proprietors and tenure holders of those Estates lose all interest in those Estate. As proprietors, they retain no interest in respect of them whatsoever. But in respect of lands enumerated in section 6 the Estate settle on them the rights of raiyats. In the case of Balpan Mahton vs-Yadav Nath Deogharia and ors, 1980 BLJR 281, a Division Bench of this Court held that according to the provision of section 6 (1) (c) of the Act lands used for agricultural or horticultural purposes forming the subject matter of subsisting mortgage on the redemption of which the intermediary is entitled to recover of their khas possession thereof, shall be deemed to be settled by the State with such intermediary subject to payment of fair and equitable rents as may be determined. In paragraph 9 of the judgment Chaudhary Sia Saran Sinha, J. obs-observed as under: "The tenure in which the suit land was included would vest absolutely in the State of Bihar free from all incumbrances as envisaged in Section 4 of the Bihar Land Reforms Act, 1950. Undisputedly, the lands in dispute were and are agricultural lands. The two conditions required for the application of Section 6 of the said Act exist in the instant case. There was a subsisting mortgage on the date of the vesting and that the land included in the subsisting mortgage was such that on the redemption of the mortgage the plaintiffs were entitled to recover khas possession thereof. The subsisting title of the plaintiffs, therefore, stands well supported by the benefits accruing to them by "the provisions of Section 6(1)(c) of the Bihar Land Reforms Act, 1950, and they are entitled to maintain a suit for declaration of title and recovery of possession". 11. Therefore, from the above pronouncement of this Court as also that of the apex Court it is manifest that on the vesting of the tenure interest of the vendors of the plaintiffs, namely, the defendants 2nd party with effect from 26.1.1955, the bakast lands in suit were deemed to be settled with them in consequence of the provision of section 6 of the Act in view of the fact that those lands were subject matter of a subsisting mortgage and the landlords were entitled to recover khas possession on redemption of the mortgage respecting the same. Incidentally, in his written statement the defendant 1st party accepted this legal premise when he stated in paragraph 6 thereof that after vesting the defendants 2nd party, no doubt, became statutory tenants of bakast lands and tile defendants 2nd party got their names mutated and rent was fixed in their names only in respect of bakast lands. Exts. 14, 18, 21(b), 22 and 26 also show that in Rent Fixation Case No. 80 of 1960-61 by order dated 4.2.1964 rent was fixed in favour of defendants 2nd party respecting 5 bighas 10 kathas of bakast lands of plots no. 878 and 881 of khata no. 2 of village Madhuri, which were the subject matter of the mortgage in favour of the defendants 1st party on the basis of the mortgage deed dated 25.8.1944 (Ext. 10). This being the legal position the defendants 2nd party could be competent to convey title to the plaintiffs respecting those lands on the basis of registered sale deeds dated 24.5.1967 (Exts. 1 series) provided their right, title and interest in those lands still subsisted. 12. The learned Sub-Judge had decreed the suit in favour of the plaintiffs other than plaintiff no. 5 on the ground that the mortgagee defendant 1st party had not acquired title by adverse possession respecting the suit lands on the ground that the averments made in paragraphs 5, 6 and 10 of his written statement amounted to admission that he continued in possession of the suit lands as mortgagee, which goes ill with the plea of adverse possession. He further held that no plea of adverse possession was taken by the said defendant in his principal written statement and that taken in additional written statement filed on 18.7.1973 being inconsistant with the earlier plea of possession as mortgagee was not permissible; and that no fresh plea of adverse possession could be taken in the additional written statement permitted to be filed in view of the amendment in the plaint "purely regarding the productivity of the suit lands" on the ground that "where a plaint is allowed to be amended after the filing of the written statement, the additional written statement that may be filed by the defendant should be confined and limited to the amended portion of the plaint". He further held that the rent was fixed in favour of defendants 2nd party respecting the suit lands in 1964 without any objection by the defendant 1st party. The suit was instituted in the year 1968; therefore, it was not barred by Article 65 of the Limitation Act. 13. The grounds on which the plea of adverse possession of the appellant defendant 1st party was negatived by the learned Sub-Judge, are entirely erroneous and display lack of knowledge of law. Indeed, in his written statement the appellant defendant 1st party had stated that even though his claim for mortgage money was settled by the Claim Officer in accordance with the provisions of the Act and the defendants 2nd party had acquired status of statutory tenants respecting the bakast lands, the mortgage still subsisted and he continued to retain possession as a mortgagee because the mortgage was not redeemed by payment of the mortgage, money to him. As will appear from the discussion hereinafter, the statement of the defendant 1st party that the mortgage still subsisted and he was entitled to retain possession of the mortgaged bakast lands as mortgagee even after the vesting and settlement of his claim under section 14 of the Act was entirely erroneous. The law is well settled that an erroneous admission on the point of law is not an admission of a thing so as to make the admission a matter of estoppel and the court is not precluded from deciding the rights of parties on true view of the law. Certainly, there can be no estoppel against law and statute. If any law is required on the point it has to be found in the case of Banassi Das and anr. Vs. Kashi Ram and ors., A.I.R. 1963 S.C. 1165, in which it has been held that "the admission however would bind him only insofar as facts are concerned but not insofar as it relates to question of law". 14. In view of the provision of section 4 (a) of the Act in consequence of the vesting, the Estate or tenure of an intermediary vested in the State free from all encumbrances. The mortgage respecting the tenure of the defendants 2nd party including the bakast lands of plot nos. 14. In view of the provision of section 4 (a) of the Act in consequence of the vesting, the Estate or tenure of an intermediary vested in the State free from all encumbrances. The mortgage respecting the tenure of the defendants 2nd party including the bakast lands of plot nos. 878 & 881 became extinct as if there was no mortgage subsisting and in consequence of the provision of section 6 (1) (c) of the Act, the bakast lands were deemed to have been settled by the State with the defendants 2nd party, the mortgagors. Section 4 (d) of the Act provides that no suit shall lie in any civil court for the recovery of any money due from such proprietor or tenure holder, the payment of which is secured by a mortgage of, or is a charge on such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped. Therefore, there was no question of the mortgage subsisting after the date of the vesting so as to permit the mortgagee defendant 1st party to continue in Possession over the mortgaged bakast lands as mortgagee. Section 14 of the Act provided that every creditor, whose debt is secured by the mortgage of, or is a charge on any estate, or tenure or tenure or part thereof vested in the State under section 3 or 3A may, within six months of such vesting or the date on which such creditor is dispossessed under the provisions of clause (g) of section 4, or within three months from the date of appointment of the Claims Officer, whichever date is later, notify in the prescribed manner his claim in writing to a Claims Officer to be appointed by the State Government for the purpose of determining the amount of debt legally and Justly payable to each creditor in respect of his claim. It appears that, as a matter of fact, after the vesting the mortgagee defendant 1st party notified his claim on mortgage before the Claim Officer of Motihari in accordance with the provision of section 14 of the Act. Ext. 15 is the application by the said defendant filed before the Claim Officer aforesaid. Ext. 24 is the evidence of the attorney of the mortgagee (D. W. 6) in the said claim proceeding no. Ext. 15 is the application by the said defendant filed before the Claim Officer aforesaid. Ext. 24 is the evidence of the attorney of the mortgagee (D. W. 6) in the said claim proceeding no. 61 of 1955. Ext. 22 (a) is certified copy of the order of the Claim Officer. By order no. 15 dated 22-3-1956 the Claim Officer held that the entire principal money Rs. 24,551/-due on the jarpeshgi bond is legally and justly payable to the applicant out of the consideration money payable to intermediary O. Ps." Ext. 21 is certified copy of the order sheet of Proceeding no. 418 of 1956-57 under section 33 of the Act respecting payment of compensation. The document shows that mortgagee defendant no. 1 had filed in application on 28-5-1956 before the Collector staking his claim for mortgage money. However, order no. 29 dated 7-4-1974 discloses that till date no payment had been made to him. This is what D.W. 6 Kanhaiya Lal, the attorney of the mortgagee defendant 1st party, has stated in course of trial. 15. Be that as it may, the fact remains that even though the claim of the mortgagee defendant 1st party was settled by the Claim Officer as per Ext. 21 (a) and the mortgage money could not be paid to him from out of the compensation money as per Ext. 21, in law no mortgage subsisted after the date of the vesting. At least, the mortgagee defendant 1st party was not entitled to retain possession of the bakast lands of the mortgagors which were the subject matter of mortgage) or to proceed against them as a mortgagee in view of the provision of section 4 (d) read with section 14 of the Act. In the case of Raja Shailenera Narayan Bhanjdeo-vs-Kumar Jagat Kishore Narayan Singh and ors., AIR. 1962 SC 914 it has been held that the tenure having been vested in the State of Bihar the mortgagee had no longer any interest in the tenure not is he in possession of them. It was further observed in the said case that it is true that the Act does not expressly bar a suit by a mortgagor for redemption, but that seems to be the practical and inevitable effect of it. The same view was reiterated in the case of Shivashankar Prasad Sah and anr. vs. Baikunath Nath Singh & ors. (supar). It was further observed in the said case that it is true that the Act does not expressly bar a suit by a mortgagor for redemption, but that seems to be the practical and inevitable effect of it. The same view was reiterated in the case of Shivashankar Prasad Sah and anr. vs. Baikunath Nath Singh & ors. (supar). In the case of Raj Kishore Prasad Narain Singh and ors. vs Ram Pratap Pandey and ors. 1971 PLJR 575, a Division Bench of this Court also held that "apart from maintaining a claim under section 14 of the Land Reforms Act, the mortgagee could have no other remedy against the milkiat interest or the bakast lands comprised in the mortgage. Thus, it is manifest that the mortgagee defendant 1st party could not be bound by his statement made in the written statement that inspite of the settlement of his claim under section 14 of the Act by the. Claim Officer the mortgage still subsisted and he was entitled to retain possession of the mortgaged lands, particularly the bakast lands of Schedule-B series in the capacity of a mortgagee until redemption of the mortgage. That stand of the mortgagee defendant 1st party was certainly erroneous and he cannot be precluded from taking a plea that the claim of the plaintiffs for possession and mesne profits was barred by limitation and adverse possession due to sheer omission to take steps for possession within 12 years prescribed under Article 65 of the Limitation Act, 1963. The learned Sub-Judge was not justified in holding the view that the plea of adverse possession as taken in the additional written statement was inconssstent with the earlier plea of possession on the basis of subsisting mortgage and, there fore, impermissible in law, As has been observed by the apex Court in the case of Shri Ramniwas Kumar Ram vs. Mahabir Prasad & ors, AIR 1951 SC 177 there is nothing in the Code of Civil Procedure to prevent a party from making two or more inconsistent sets of allegation and claiming relief thereunder in the alternative. 16. Likewise, the learned Sub-Judge made an error of law when he stated that the plea of adverse possession as taken in the additional written statement dated 18-7-1973 was beyond the permissible scope of the amended portion of the plaint. 16. Likewise, the learned Sub-Judge made an error of law when he stated that the plea of adverse possession as taken in the additional written statement dated 18-7-1973 was beyond the permissible scope of the amended portion of the plaint. It appears that by an amendment permitted on 17-7-1973 the following statements were added in the end of paragraph 4 of the plaint: "The suit lands are irrigated canal and yield three bumper crops a year, viz. Bhadai paddy, Agahani paddy and wheat. Some times bumper harvest of sugar-cane is also had. Defendant no.1 himself or through his agent carries on improved methods of cultivati on in the suit lands. It is just for the bumper produce that defendant no.1 quite illegally clings to the suit lands". The learned Sub-Judge has held that the amendment permitted was purely regarding the "productivity" of the suit lands. Therefore when the defendant 1st party was permitted to file written statement in rebuttal thereof he could traverse only the allegation which were added by dint of the amendment. According to him, in the circumstance the plea of adverse possession was not permissible. He simply over-looked the implication of the last sentence of the amended portion of the plaint, which referred to defendant no.1 illegally" clinging to the suit lands. In otherwords, by making amendment the plaintiffs conveyed that the possession of defendant no. lover the suit lands was illegal. Indeed, the very relief of mesne profits implies illegal or unlawful possession of the defendant from whom such relief is sought. Therefore, once the plaintiffs averred in their plaint by making amendment that defendant no. 1 was illegally” clinging to possession over the suit lands the latter became entitled to traverse that allegation in the additional written statement by taking a plea of perfecting his title by adverse possession. 17. The learned Sub-Judge has held that on evidence the defendant 1st party has failed to prove his adverse possession for more than 12 years prior to the institution of the suit He has made specific reference to the fixation of rent respecting the bakasl lands in snit in favour of defendants 2nd party, namely, the predecssors-in-interest of the plaintiffs, in the year 1964 and that too without any objection by the mortgagee defendant 1st party. In law the mortgagee defendant 1st party could have taken no objection to the fixation of rent respecting the bakast lands which were the subject matter of the mortgage in his favour because in view of the provision of section 6 (1) (c) of the Act those lands were deemed to have been settled with the mortgagors tenure-holders with effect from the date of vesting. It was due to this reason that the defendant 1st party admitted in his written statement that the defendants 2nd party had acquired the status of statutory tenants under the Act and their names mutated respecting the bakast lands on fixation of rent in their favour. 18. What was the effect of vesting on a mortgage and the relationship between the mortgagor and the mortgagee, inter se, is very succintly stated by the apex Court in the case of Shivashankar Prasad Sah & anr. vs. Baikunth Nath Singh & ors. (supra). Even at the risk of repetition, it will be worth reproducing the observation of their lordships in paragraph 10 of the judgment. It runs as below: "10. Reading sections 3, 4 and 6 together, it follows that all Estates notified under section 3 vest in the State free of all encumbrances. The quondam proprietors and tenure holders of those Estates lose all interest in those Estates. As proprietors they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in section 6 the State settled on them the rights of raiyats. Though in fact the vesting of the Estates and the deemed settlement of raiyats's rights in respect of certain classes of lands included in the Estate took place simultaneously, in law the two must be treated as different transactions :first there was a vesting of the Estates in the State absolutely, and free of all encumbrances. Then followed the deemed settlement by the State of raiyat's rights on the quondam proprietors. Therefore, in law it would not be correct to say that what vested in the State are only these interests not coming within section 6". 19. In the case of Raj Kishore Prasad Narain Singh & ors. Vs. Ram Pratap Pandey & ors, (supra) also the Bench of this Court held that "the suit lands are no longer bakast lands, which were the subject of the mortgage of 1925. 19. In the case of Raj Kishore Prasad Narain Singh & ors. Vs. Ram Pratap Pandey & ors, (supra) also the Bench of this Court held that "the suit lands are no longer bakast lands, which were the subject of the mortgage of 1925. In fact, they vested in the State free from all encumbrances or in other words, the encumbrances of 1925, so far as the bakast lands were concerned, disappeared with the vesting of the estate giving (sic) to the mortgagee a remedy under section 14 which in the present case the mortgagee did not like to pursue. The rights of the plaintiffs under Section 6 had no relation with their former rights as proprietors of the bakast lands. They acquired absolutely a new right by virtue of the deemed settlement from the State, which obviously was untramelled by the former encumbrances on the bakast lands. In other words, the plaintiffs are entitled to hold the suit lands free from the encumbrance which existed upon it prior to the vesting of the estate". The implication at the above decisions is that on the date of the vesting the relationship of mortgagor and mortgagee between the defendants 2nd party and the defendant 1st party got snapped. And in consequence of coming to the end of such relationship the possession of the defendant 1st party over the bakast suit lands cannot he referred to in the capacity of a mortgagee. Immediately after the vesting the mortgagors defendants 2nd party become entitled to recover possession of the bakast lands from the mortgagee defendant 1st party. They did not do so within a period of 12 years from the date of the vesting. It was only after the expiry of period of 12 years that on 27.4.1967 the defendants 2nd party chose to execute sale deeds (Ext. 1) series) respecting those lands in favour of the plaintiffs. 20. In the case of Collector of Bombay vs. Municipal Corporation of the City of Bombay and ors. AIR 1951 SC.469, the Municipal Corporation of the City of Bombay and its predecessor were holding certain lands on the basis of a resolution of the Government for which requisite statutory formalities were not complied with. Therefore, their position was held to be that of a person having no legal right. AIR 1951 SC.469, the Municipal Corporation of the City of Bombay and its predecessor were holding certain lands on the basis of a resolution of the Government for which requisite statutory formalities were not complied with. Therefore, their position was held to be that of a person having no legal right. It was held that such possession not being referable to any legal title, it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor-in-title of the respondent Corporation took possession of the land under the invalid grant. In the case of State of West Bengal-vs.-Dalhousie Institute Society, AIR 1970 SC 1778 , the grant of land in favour of the institute was found not in the manner required by law and the institute continued in possession continuously for over 60 years. It was held that the person in such possession clearly acquires title by adverse possession. In the instant case also the moment the bakast lands which were the subject matter of mortgage in favour of defendant 1st party, vested in the State free from all encumbrances, bringing to an end the mortgage in question and those lands were deemed have been settled with the mortgagors defendants 2nd party, the possession of the defendant 1st party could not be referable to qua-mortgagee In other word, he continued in possession without any valid title and thus started prescribing the rightful owners of the lands, namely, the defendants 2nd party who were entitled to recover possession within the statutory period of 12 years in view of Article 65 of the Limitation Act of 1963. The mortgagors defendants 2nd party did not do so. They purported to transfer those lands to the plaintiffs on the basis of registered documents on 24-5-1967, i.e., more than 12 years after the defendant 1st party started prescribing against them. Even the plaintiffs instituted the suit for possession and mesne profits on 24-5-1968. It is manifest that by the time the defendants 2nd party executed Ext. 1 series in favour of the plaintiffs, whatever right, title and interest they had acquired in the suit lands by virtue of section 6 of the Act, got extinguished (See. section 27 of the Limitation Act). In other words, they had no title to convey to the plaintiffs on the basis of Ext. 1 series in favour of the plaintiffs, whatever right, title and interest they had acquired in the suit lands by virtue of section 6 of the Act, got extinguished (See. section 27 of the Limitation Act). In other words, they had no title to convey to the plaintiffs on the basis of Ext. 1 series; and their suit for possession has become barred by limitation. Since the suit for possession has become barred by limitation, no claim for mesne profits is permissible (See-1997 PLJR 591 SC.) Since the plaintiffs have been found not entitled to mesne profits, it will be simply superfluous to hold that they would not be granted decree for mesne profits for any period preceding their purchase as the transfer deeds do not purport to transfer to them the right to realise mesne profits which had already accrued to the vendors. 21. In the result, the appeal succeeds and the same is allowed. The judgment and decree rendered by the learned court below is set aside and suit is dismissed with costs. Since the respondents did not appear at the time of the hearing, there is no order as to cost in the appeal. Appeal Allowed.