1. MUSHTAQ HUSSAIN, J.-Alif filed a suit against Muhammad Raoof etc. -for a declaration that the former was the owner of land measuring 6 kanals and 2 marlas situated in Khasra No. 644, Mehra Khurd, Tehsil and District Rawalpindi as the vendee from Sikandar, the predecessor-in-interest of Muhammad Raoof etc. The sale was not mutated in favour of Alif because he was a non- agriculturist while the vendors were members of an agriculturist tribe. This however did not deter Alif from remaining in possession of the land throughout Exh. P-4, the revenue record pertaining to the year 1951-52 shows that the land belongs to Mardana, Jahana and Balloch sons of Hayat to the extent of 1/2 while the other 1/2 Muhammad Raoof son of Muhammad. These were the for defendants. The suit was .Contested only by Muhammad Raoof, who was a minor, wherefor, ex parte proceedings were taken against the other three.
2. In consequent of the written statement filed by the guardian of d4uhammad Raoof the following for issues were framed
(1) Does this suit lie in its present form ?
(2) Is the plaintiff an owner of the land in dispute ?
(3) If issue No. 2 is not proved, is the plaintiff in adverse possession of the land in suit for more than 12 years ?
(4) Relief.
3. On the basis of the evidence produced by the parties the learned trial' Court found issue No. 3 in favour of the plaintiff as it was proved to his satisfaction that the plaintiff was in possession if the land in suit. The finding on issue No. 2 was against the plaintiff as it was not established that the so- called sale conferred any proprietary rights on him because of the effective bar contained in the Punjab Land Alienation Act. The learned, Civil Judge found the plaintiff to be in adverse possession of the land in dispute for more than 12 years as he had been found to be in occupation thereof since 1920 i.e. a period of more than the statutory 12 years.
4. Muhammad Raoof bled an appeal, before the learned Senior Civil Judge but issue No. 1 was not agitated. The learned Senior Civil Judge found that the possession of the plaintiff started in August 1920 and came to an end in March 1932 when he was dispossessed as his name did not appear in the Jamabandi. He consequently found that the possession of Alif over the land bad not persisted for long enough so as to be covered by the statutory period of 12 years and consequently he accepted the appeal and dismissed the suit.
5. Alif filed a regular second appeal, which was dismissed by the learned Judge in Chamber on 26-5- 1965. His judgment has since been reported in PLD 1965 Lab. 611. This L. P. A. Arises out of that judgment.
6. The only point that has been urged before us relates to issue No. 2-A i e. the claim to adverse possession.
7. The learned Single Judge differed with the learned Senior Civil Judge about the length of continuous possession of Alif over the land in dispute. He came to the conclusion that there was no evidence worth the name which could lead to the assumption that Alif had lost possession of the land after, the year 1931-32 and he held that he continued to be in possession till-- 1956.
8. His Lordship, however, raised a new question of law which has, hitherto not been adverted to.
9. Section 14 of the Punjab Alienation of Land Act laid down that if a sale of agricultural land was not sanctioned by the Collector the transaction between the parties did not result in a complete nullity but was instead to take effect as a usufructuary mortgage with the land remaining in possession of the vendee for a maximum period of 20 years. The possession of Alif in the present case, therefore, became that of a mortgagee immediately upon the refusal of the Collector to sanction the sale, which event took place on 22-2-1921.
10. It could, therefore, not be argued that at any point of time within 20 years from this date Alif could claim to be in possession of the land adversely to the mortgagors. This period of 20 years would expire in the year 1941. The suit out of which this appeal arises was instituted in the year 1956 i.e. 15 years after the period of usufructuary mortgage came to air, end.
11. The question raised is whether it could be said that the possession of Alif in any case became adverse to the mortgagors on the expiry of the period of 20 years for which the usufructuary mortgage was to subsist. If the answer were to be in the affirmative the period of 12 years required by law would have expired giving Alif the desired right of adverse possession.
12. No overt act has been committed by the mortgagee to assert his claim. To adverse possession.
13. What is left, therefore, is just the simple proposition whether the mortgagee holding over the mortgage property after the expiry of the mortgage period can or cannot claim to be in possession adversely to the owners ? The answer to this question is an emphatic no just has been returned by the learned Judge in Chamber. There are a number of rulings to this effect from jurisdictions other than ours which have been discussed at length by the learned Judge in Chamber and it would not brook any repetition here. It is a well established general principle of law that a person who enters into possession as a mortgagee cannot set up an adverse title against his mortgagors. Reference may be made to a decision of a Division Bench of this Court in Jiwan Singh and another v. Ghasita and others (95 1 C 9 "As to the next point, namely, the question of adverse possession, it has to be borne in mind that the defendant's possession was from its inception that of mortgagees, and it has been established that mortgagee cannot by mere assertion of title start possession adverse to the mortgagor or the mortgagor's heirs."
14. In Khlarajrnal v. Duim (32 Cal. 296), dealing with the question that there has been adverse possession for more than 12 years of the equity of redemption and the title of the appellant, who represented the original defendant could ,not, therefore, be disputed in the circumstances that since the date of the execution sale no accounts had been demanded by or rendered to by mortgagees or their representatives. No payment of sub-stance money which they were entitled to under the mortgage had been made, and the party after the sale ceased to cultivate the land and left the village and renewed Patta had been granted to nominees of the mortgagees Lord Devy who wrote the opinion of the Board observed "But there have been no separate dealings with the equity of redemption as a distinct subject of property. Their Lordships are satisfied that the possession has been that of the mortgagees throughout and the question at issue is exclusively one between mortgagor and mortgagee.
15. As between them neither exclusive possession by the mortgagee for any length of time short of the statutory period of sixty years, nor any acquiescence by the mortgagor not amounting to a release of the equity of redemption will be a bar or defence to a suit for redemption if the parties are otherwise entitled to redeem."
16. Since the right of the mortgagor to redeem the land subsists as has been declared by the Privy Council the assertion of an adverse title in the manner it has been made in the case before us is a complete misnomer because the two cannot co-exist since they are poles as under.
17. A reference to section 28 of the Limitation Act would show- "At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished."
18. The rights of a mortgagor to recover possession of the property of fulfilling the conditions laid down by law subsists for a period of sixty years and to hold that a mortgagee who came into possession of the property in that capacity can set up a title adverse to the mortgagor within this period, thus depriving him of his right to recover possession would not only be in complete negation of the provisions of section 60 of the Transfer of Property Act but would also set at naught the provisions of section 28 of the Limitation Act and all this cannot be allowed to happen when there is no warrant in the law for such a course.
19. It has been held in Jiwa Khan and others v. Lakhmi Chand and others (1911 P L R 232, that "The question is by no means an easy one but I am inclined to think that the Divisional Judge's decision is correct. Turning to ladar v. Asa Singh 65 P R 1908 (SC). I find the following quotations ; (i) "that neither the mortgagor nor the mortgage can by any adverse act bar the right of the other (Lord St. Leonard's Handy book on Property Law, page 117), and (ii) that the original character of the possession as mortgagee is not changed by the assertion of an absolute purchase of the property unless the alleged purchase is valid and binding" Byari v. Pultanna 32 Cal. 296 (SC). With the latter dictum I quite agree, and it seems to me to be going too far to say that in no possible case can a mortgagee set up an adverse title. Let us suppose that A pledges his land to B, as security for a debt, and that B, subsequently seizes possession of the land, alleging no title as mortgagee, but alleging that the land has all along belonged to him and that A was a trespasser. A, could, quite independently of any right to redeem, sue to recover possession from B, but if he did not do so for over 12 years, could he then sue to redeem ?
20. On the other band, if B, had got possession under a deed of mortgage by which the land was mortgaged to him with possession, I consider that B, could not by any assertions of title set up possession adverse to A."
21. It was further held in Lehna Singh and others v. Santa Singh (13 1 C 852 that "Defendant entered into possession of the land as a mortgagee, and I do not think that he can be allowed to claim that a mere mutation of names in his favour as owner enables him to set up adverse possession against the plaintiffs, Nawab Mir Sayad Alam Khan v. Yasin Khan 17 Born. 755, is an analogous case."
22. It was further held in Godar and others v. Nizamdin and others (120 I C 189), that "It is settled law that a mortgagee in possession cannot, by getting himself recorded in the revenue paper as owner, defeat the right of the mortgagor to redeem. There is clear authority in support of that view e.g., Indar v. Asa Singh 65 P R 1908, Shah Nawaz v. Sheikh Ahmad 59 I C 478, Khiaraj Mal v.
23. Daim 32 Cal. 296 and Kunwar Sear v. Darbarf Lal 34 I C 1711 would hold, therefore, that the plaintiffs are entitled to redeem the mortgage of 1886."
24. As a result we find the impugned judgment absolutely unexceptionable and no merit whatsoever in the appeal, wherefor, the latter is dismissed with costs. s. Q.
25. Appeal dismissed.