Authored By : Mookerjee, Herbert William Cameron Carnduff

Mookerjee, J.

1. The subject-matter of the litigation, which has givenrise to this appeal, is a parcel of land which admittedly belonged originallyto one Biku Dhobi as his occupancy holding. On the 4th March 1889, Bikuborrowed money from Government for agricultural purposes, and executed amortgage of his holding to the Secretary of State for India in Council. He wasunable to re-pay the loan on the day fixed and the result was that, inexecution of a certificate made under the Public Demands Recovery Act, 1895,the holding was brought to sale, and was purchased on the 6th August 1902 bythe Plaintiff, now Respondent before us. On the nth November 1907, thePlaintiff commenced this suit for declaration of his title and for recovery ofpossession against two sets of Defendants ; the second set of Defendantscomprised the landlords of the holding, and the first set was composed ofmortgagees from them, who, in execution of a mortgage decree, were about tosell the estate within which the disputed holding is situated. The Plaintiffsought for a declaration that the land was the occupancy holding of Biku, andnot the proprietors private land as falsely alleged by the second set ofDefendants; and that, consequently, it was not liable to be sold in executionof the mortgage decree held by the first set of Defendants. The Defendantsdenied that the disputed land was the holding of Biku, and asserted that it wasthe private land of the proprietor who had been in direct possession since atleast 1892. The Defendants further contended that, if Biku had at any time atenancy-interest in the land, it had been extinguished by adverse possession onthe part of the landlords ; and that, in any event, the Plaintiff had not, byhis purchase at the sale under the Public Demands Recovery Act, acquired atitle capable of enforcement against the landlords or their representatives ininterest. The Courts below have concurrently overruled these contentions and,in the view that the claim is not barred by limitation, have made a decree infavour of the Plaintiff. The Defendants have now appealed to this Court, and ontheir behalf the decision of the Subordinate Judge has been assailed on theground that, in the events which have happened, Biku Dhobi had no subsistinginterest in the disputed land at the time of the sale under the Public DemandsRecovery Act, and that, consequently, it was not competent to the Secretary ofState for India in Council to confer on the auction-purchaser any title whichmay be deemed valid against the landlords. This contention has been sought tobe supported from two distinct points of view, namely, first, that the effectof the sale, under the Public Demands Recovery Act, was to transfer to thepurchaser the right, title and interest of the judgment-debtor, and that, beforethat date, such right, title and interest had been extinguished by adversepossession of the landlords for the statutory period of 2 years ; and,secondly, that, even if the certificate-sale be deemed to be a sale held forthe enforcement of the security in favour of the Secretary of State for Indiain Council, the auction-purchaser could not acquire any title, because byreason of the adverse possession of the landlords, the equity of redemption ofthe mortgagor as also the interest of the mortgagee had been extinguished. Inso far as the first of these contentions is concerned, it is well-settled by aseries of decisions of this Court, beginning with the case of Shekaat Hussainv. Sashi Kar I. L. R. 19 Cal. 783 (1892), and ending with the case of Raja Koerv. Ganga Singh 13 C. W. N. 750 (1909), that the effect of a sale under thePublic Demands Recovery Act is to pass to the purchaser merely the right, titleand interest of the persons named as the judgment-debtor in the certificate.See also Rupram v. Iswar 6 C. W. N. 302 (1902), Ashanulla v. Manjura Banu I. L.R. 30 Cal. 774 : s. c. 8 C. W. N. 357 (1903), Raja Baikunto Nath v. Uday Chand2 C. L. J. 311 (1905), Abdul Hai v. Gujraj I. L. R. 20 Cal 826 (1893), BaijNath v. Ramgut I. L. R. 23 Cal. 775 (1896). Sec. 10 of Public Demands RecoveryAct, 1895, further provides that the certificate, after it has been filed andduly notified, binds all immoveable property of the judgment-debtor situatedwithin the jurisdiction of the District Collector, in the same manner and withlike effect as if such immoveable property had been attached under theprovisions of the Code of Civil Procedure. Consequently, if on the date of theservice of notice, the judgment-debtor has no subsisting interest in aparticular parcel of land, the purchaser at the certificate sale which followscan acquire no valid interest therein. Now, in the case before us, it isreasonably plain, upon the proceedings of the Collector, that the certificatewas made for recovery of the debt and not for the enforcement of the securityheld by the Secretary of State for India in Council. In fact, the PublicDemands Recovery Act does not contemplate the realisation of a security. Thesteps taken are analogous to those provided by the Civil Procedure Code for theenforcement of a money-claim. This is clear from sec. 19, sub sec. (2) of thePublic Demands Recovery Act, 1895, which lays down that the certificate may beenforced and executed, in the manner provided by Chap. XIX of the CivilProcedure Code of 1882, for the enforcement of decrees for money. The substanceof the matter is that if the Secretary of State for India in Council intends toenforce the security, he must proceed by way of a regular suit ; but he maypractically abandon the security and realise the loan as money claimed, by thesummary procedure of a certificate under the Public Demands Recovery Act. Thisview is in accord with that taken in the case of Luchmi Narain Singh v. RaghuNandan Sahi 6 C. W. N. 484 (1902). Upon the first branch of the contention ofthe Appellants, therefore, the question arises, whether the judgment-debtorBiku had any subsisting interest in the disputed land when the notice of thecertificate under the Public Demands Recovery Act was served upon him. Now it hasbeen found that, in 1892, that is, 10 years before the date of such notice,Biku had been dispossessed by his landlords, who have continued in possessionup to the present time. Under Art. 3 of Sch. III of the Bengal Tenancy Act,Biku, as an occupancy raiyat, dispossessed from his holding by his landlords,was bound to sue for recovery of possession within two years from the date ofdispossession. He failed to do so. What, then, was the effect of thisdispossession upon the title of Biku It has been argued, on behalf of theDefendants-Appellants, that his title was extinguished at the end of the periodprescribed for the institution of a suit by him. In answer to this contention,it has been argued by the Plaintiff that secs. 184 and 185 of the Bengal TenancyAct, read together, do not make sec. 28 of the Limitation Act applicable tocases of this description. It has been suggested, in fact, that the terms ofsub-sec. (2) of sec. 185--which lays down that subject to the provisions ofChap. XVI of the Bengal Tenancy Act, the provisions of the Indian LimitationAct shall apply to all suits, mentioned in sec. 184, that is, suits governed bySch. III annexed to the Act--are not wide enough to attract the operation ofsec. 28 of the Limitation Act to such suits ; that section lays down that, atthe determination of the period limited by the Indian Limitation Act to anyperson for instituting a suit for possession of any property, his right to suchproperty shall be extinguished. We are not impressed by the soundness of thiscontention of the Plaintiff-Respondent ; but even if it be held that sec. 28 ofthe Limitation Act has not been made specifically applicable to suits of thisdescription by sub-sec. (2) of sec. 185 of the Bengal Tenancy Act, it is clearthat the same doctrine must be held applicable on first principles. It wasruled by the Judicial Committee in the case of Gunga Govinda Mandal v.Collector of 24-Pergunnahs 11 M. I. A. 345 ; 7 W. R. 21 P. C. (1867), that if aperson suffers his right to be barred by the law of limitation, the practicaleffect is the extinction of his title in favour of the party in possession.[See also Luchmee v. Ranjeet 13 B. L. R. P. C. 177 (1873), Fatimaatulnissa v.Sundar L. R. 27 I. A. 103 (1900), Jagamba v. Ram Chandra I. L. R. 31 Cal. 314 (1903)]. The tendency of modern decisions is undoubtedly in favour of thisview, even in the absence of a statutory provision (for the extinguishment ofthe right to property) of the type we find embodied in sec. 28 of theLimitation Act : [Dalip v. Deoki I. L. R. 21 All. 204 (1899) and Sarafuddin v.Chandra Mani 5 C. W. N. 405 (1900)] ; the contrary view, sometimes maintained,[Doe v. Kuppn 1 Mad. H. C. 89 (1862), Secretary of State v. Vira I. L. R. 9Mad. 175 (1885)] is opposed to the decisions of their Lordships of the JudicialCommittee just mentioned, and cannot be supported. We are of opinion,therefore, that, even if it be held that sec. 28 of the Limitation Act does notdirectly apply to cases governed by Art. 3, of Sch. III of the Bengal TenancyAct, the principle is applicable ; and that, consequently, the title of Biku inthe case before us was extinguished in 1894. In 1902, when proceedings weretaken under the Public Demands Recovery Act, he had consequently no subsistinginterest which could be attached and sold. In this view, the Plaintiff, aspurchaser at the certificate sale, has not acquired any interest which he canenforce against the landlords, who by adverse possession have acquired anindefeasible title to the property. The first branch of the contention of theAppellants must, therefore, prevail. In so far as the second contention of theAppellants is concerned, it has been argued that, if the certificateproceedings be assumed to have been appropriately taken for the enforcement ofthe security held by the Secretary of State for India in Council, thePlaintiff-Respondent has not acquired any title to the disputed property,because before the security was sought to be enforced, the interest of themortgagor as also of the mortgagee had been extinguished by adverse possessionfor the statutory period by the landlords. In support of this proposition,reliance has been placed upon the cases of Ramkumar Sen v. Prasanna Kumar SenW. R. Gap. No. 375 (1864) and Karan Singh v. Bakarali Khan L. R. 9 I. A. 99 :s. c. I. L. R. 5 All. 1 (1882). The question raised is of considerable nicetyand by no means free from difficulty, and we may observe that there has beensome divergence of judicial opinion upon it. The contention of the Appellantsin substance is that the adverse possession on the part of the landlordsoperated to extinguish not merely the equity of redemption but also theinterest of the mortgagee. There can be no room for controversy that if suchadverse possession had commenced before the execution of the mortgage, itsoperation would not have been arrested by the grant of the mortgage security,on the elementary principle that the effect of a statute of limitation, in theabsence of legislative provision to the contrary, must be determined withreference to the actual state of the title when time begins to run, and that,when the time has once commenced to run against the absolute owner, nosubsequent alteration in the title will postpone the bar. Where, however, ashere, the mortgagor has been dispossessed after the grant of the mortgage, theview has sometimes been maintained that the adverse possession does not operateagainst the mortgagee, see Aimadar Mandal v. Makhan Lal Dey I. L. R. 33 Cal.1015 ; 10 C. W. N. 904 (1906), which was accepted as good law in Vencatachalav. Subramania 8 Mad. L. T. 377 ; 8 I. C. 264 (1910). There is, however,considerable force in the contention of the Appellants that the contrary viewought to be maintained on principle. The learned Vakil for the Appellants hasargued, that the right of the mortgagee to the security subsists only so longas the mortgagors right to the property subsists, and both are in the sameposition if the interests of the mortgagor and mortgagee are equally invaded bythe trespasser. This view is supported not only by the case of Ramkumar v.Prasanna Kumar W. R. Gap. No. 375 (1864), but also by the observations inSheoumbet v. Bhowanee 2 All. H. C. R. 223 (1870), Ram Lal v. Masum Ali I. L. R.25 All. 35 at p. 38 (1902), Ammu v. Ramakrisna I. L. R. 2 Mad. 226 (1879),Karan Singh v. Bakarali Khan L. R. 9 I. A. 99 ; s. c. I. L. R. 5 All. 1 (1882),Anando Moyee v. Dhonendra Chandra 14 M. I. A. 101 at p. 110 (1871), andPrannath v. Rookea Begum 7 M. I. A. 323 at p. 352 (1859); see also, Chinto v.Janki I. L. R. 18 Bom. 51 (1893) and Kanhu Lal v. Manki 6 C. W. N. 601 (1901).We are not unmindful that in England it has been ruled that, where land issubject to a mortgage, the statute does not run against the mortgagee in favourof a stranger in possession of the land so long as the mortgagor pays interestto the mortgagee, or more strictly, such payment of interest continually checksthe operation of the statute, Doe v. Eyre 17 Q. B. 366 ; 85 R. R. 488 (1851),Doe v. Massey 17 Q. B. 373 ; 85 R.R. 493 (1851) and Ford v. Ager 2 H. and C.279 (1863), provided the adverse possession began after the creation of themortgage : Thornton v. France [1897] 2 Q. B. 143. See also Eyre v. Walsh 10 Ir.C. L. 346. It is worthy of note, however, that the decision of the House ofLords in Heath v. Pugh 6 Q. B. D. 345 (1881) ; on appeal 7 A. C. 235 (1882),upon which reliance is placed in Aimadar Mandal v. Makhan Lal Dey I. L. R. 33Cal. 1015 ; 10 C. W. N. 904 (1906), is clearly distinguishable, because therethe mortgagee had commenced his action to foreclose the mortgagor before theadverse possessor had been able to extinguish the equity of redemption ; underthese circumstances, it was ruled that for the purposes of an action inejectment by the mortgagee, who had become full owner, time must be taken torun against him from the date when his title was perfected. In the case beforeus, the certificate proceedings, even if they be assumed to be proceedings forenforcement of the security, were not taken till the equity of redemption atleast had been extinguished by adverse possession on the part of the landlords.The view may, therefore, well be maintained that the certificate-sale passed notitle to the purchaser. That the question, however, is not free fromdifficulty, is obvious from the divergence of judicial opinion which hasprevailed upon it, and in American Courts, where the question has been muchdebated, contrary views have been maintained. For instance, in Dadmun v. Lamson9 Allen 85, Menairv. Lot 34 Miss 285 ; 84 Am. Dec. 78 and Glasen v. Haskins 23R. I. 601 ; 51 All. 219, the view appears to have been taken that, as regards athird person not in privity with the mortgagor or mortgagee, the existence ofthe mortgage does not affect the character or effect of the adverse possessionby him as against the mortgagee. On the other hand, in Martin v. Jackson 27 Pa.584 ; 67 Am. Dec. 489, it was held that no adverse possession by the consent orconnivance of a mortgagor can affect the mortgagee, unless it be so open as togive the latter notice that his rights are invaded. In so far as the Courts inthis country are concerned, as we have already explained, there is a conflictof authorities, and if it were necessary for us to rest our decision on thispoint, we should have to consider whether the matter ought not to be referredto a Full Bench. In the view, however, we take of the first contention of theAppellants, it is clear that their appeal must succeed.

2. The result, therefore, is that this appeal is allowed,the decrees of the Courts below set aside, and the suit dismissed with costs inall the Courts.

Herbert William Cameron Carnduff, J.

I agree.

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Nanda Kumar Dey and Ors. vs. Ajodhya Sahu (14.07.1911 -CALHC)