P L D 1965 (W (PLP)

Section 3 of the Punjab Alienation of Land Act, 190a lays down that a permanent alienation of land by a member of an agricultural tribe in favour of a non‑agriculturist shall not take effect as such unless and until sanction is given thereto by the Deputy Commissioner concerned. Section 14 of the Act provides that any permanent alienation hit by section 3 is not to take effect as such until sanction of the Deputy Commissioner is given thereto; and shall, until such sanction is given, or if such sanction has been refused, take effect as a usufructuary mortgage in form (a) permitted by section 6 for such term not exceeding 20 years and on such conditions as the Deputy Commissioner considers to be reasonable. By reading the two sections together it is manifest that the permanent alienation in contravention of the provisions of the Act is not ab initio void. It is liable to be ratified with the sanction of .the Deputy Commissioner of the district concerned. But until such sanction is given or if no sanction is accorded by the Deputy Commissioner, the permanent alienation under the statutory fiction of section 14 of the Act must take effect as a usufructuary mortgage in one of the recognised forms for a term not exceeding 20 years as laid down in section 6 and the possession of the alienee stands reduced to that of a statutory mortgagee by operation of law. As such his possession cannot be characterized as' that of an absolute owner or even wrongful or adverse as that of a mere trespasser. His possession of the land in such a case is. Nothing more nor less than that of a mortgagee at law. It is beyond doubt that a mortgagee, entitled to retain possession of the mortgaged property under the terms of the mortgage, cannot during: the subsistence of the mortgage, that the plaintiff was out of possession on the date of the suit and his suit for a mere declaration was not maintainable. In the Khasra Girdawari for Kharif 1956 (Exh. P. 2) Alaf is shown to be in possession of the land for the past 40 years approxi mately. According to the statement of Muhammad Ismail Patwari (P. W. 2) the mutation for correction of the entries relating .to possession was entered but no final decision had yet been taken by the time his statement was recorded in Court. However, the Patwari deposed that at the time of the 6irdawari he made enquiries to satisfy himself that the plaintiff was in continuous. Possession of the land in suit for' 40 years. The result of this enquiry by the Patwari is corroborated by the independent statement of two other witnesses. Allah Dad (P. W. 3) is aged 35 years and is a Lumbardar of the village. His land is situated contiguous to the land in suit and according to him Alaf has been continuously in its possession from the time he attained his recollection. Muhammad son of Wali Dad (P. W. 4) is a Zamindar of the village whose land is situated at a distance, of about 10 to 12 karams from the land 'in dispute. According to him Alaf .is in possession of the land for the past 35/36 years. Alaf has also appeared as his own witness to depose that he is in continuous possession of the land for the past 60/80 years. After the close of the evidence of the plaintiff the learned counsel for 'the defendant No. 1 sought an adjournment to produce copies of the Khasra Girdawari but subsequently he closed his case without producing any evidence in rebuttal. The defendants even failed to appear, as their own witnesses in the case. There is no direct evidence, to prove that in fact after the year 1931‑32 the plaintiff bad lost possession of the land which he had admittedly purchased though under an illegal sale. Admittedly he remained in possession of the‑ land all .along up to 1932. From the evidence discussed above it is difficult to infer that the plaintiff was ousted from the possession of the land in dispute at any time between 1932 and 31 1956. As will be seen presently in accordance with .the provisions of section 14 of the Punjab Alienation of Land Act (XIII of 1900) in the absence of the sanction by the Collector to the sale, the transaction between the parties took effect as a usufructuary mortgage with the land in possession of Alaf for a maximum period of 20 years and it is difficult to imagine as to how Alaf could have been ousted from the possession of the land before the expiry of the statutory period of 20 years. In my opinion under the circumstances a presumption as to the continuance of the possession even after 1932 can be legitimately raised in favour of the plaintiff under section 114 'of the Evidence Act. 6. On the above facts I have no hesitation in concluding that the plaintiff purchased the land in dispute from the defendants or their predecessor, Sikandar orally for Rs. 85 only in about the year 1918‑19 and entered into its possession under the sale. His vendors were statutory agriculturists by caste but he himself was a non‑agriculturist. The sale was made in contravention of the provisions of the Punjab Alienation of Land Act (XIII of 1900) (hereinafter referred to as the Act) and the competent revenue authorities declined to attest the mutation. Nos. 155 and 188 pertaining to the sale on two different occasions in 1920 and 1924, respectively. In spite of this the plaintiff continued to retain the possession of the land without paying anything to the defendants on account of rent. In these circumstances an important question as to true nature and character of the possession of the‑plaintiff on the land in dispute arises in this case. In this respect the relevant‑ provisions of law have escaped the notice of the two Courts below and their attention was never focussed on this real matter in controversy between the parties. 7. Section 3 of the Act lays down 'that a permanent alienation of land by a member of an agricultural tribe in favour of a non‑agriculturist shall not take effect as such unless and until sanction is given, thereto by the Deputy Commissioner concerned. Section 14 of the Act provides that any permanent alienation hit by section 3 is not to take effect as such until sanction of the Deputy Commissioner is given thereto; and shall, until such sanction is given, or if such sanction has been refused, take effect as a usufructuary mortgage in form (a) permitted by section 6 for such term not exceeding 20 years and on such conditions as the Deputy Commissioner considers to be reasonable. By reading the two sections together it is manifest that the permanent alienation in contravention of the provisions of the Act is not ab initio void. It is liable to be ratified with the sanction of the Deputy Commissioner of the district concerned. But until such sanction is given or if no sanction is accorded by the Deputy Commissioner, the permanent alienation under the statutory fiction of section 14 of the Act must take effect as a usufructuary mortgage in one of the recognised forms for a term not exceeding 20 years as laid down in section 6 and the possession of the alienee stands reduced to that of statutory mortgagee by operation of this law. As such his possession cannot be charac terised as that of an absolute owner or even wrongful or adverse as that of a mere trespasser. His possession of the land in such a case is nothing more nor less than that of a mortgagee at ‑ law. In Qadir Bakhsh v. Hakain (A I R 1932 Lah. 503) it was held that if an agriculturist sells his land outright to a non‑agriculturist then the vendee in possession, cannot be ousted from its possession forthwith. By obtaining the sale in his favour the alienee no doubt does not acquire the title as absolute owner but his possession is certainly not that of a trespasser. The Act, enables him to have the defect in his title removed by securing the sanction of the Deputy Commissioner under section 3 (2) of the Act, but if he fails to apply for such sanction or sanction is applied for and is refused, the so‑called permanent alienation "take effect as a usufructuary mortgagee . in . form (a) permitted by section 6 for such terms as the Deputy Commissioner considers to be reasonable", as required by section 14. It is, however, clear that in either case the alienee's possession is not unlawful at least for the time being. Similarly in Mst. Nandi v. Pala Singh (A I R 1933 Lah. 650) Eddison, J. has held that until the sanction of the Deputy Commis sioner is given to a permanent alienation, like a sale to a non‑agriculturist, the alienation takes effect automatically as a usufructuary mortgage in form (a) permitted by section 6 for such term not exceeding, 20 years and on such conditions as the Deputy Commissioner considers reasonable. Again in Jalal Din and another v. Hukam Chand (A I R 1938 Lah. 820) a Division Bench has held that if an alienee enters into a transaction of a permanent alienation he comes under the terms of the Act and is bound by it, his sale compulsorily becomes a usufructuary mortgage as permitted by section 6 (a) and he cannot resile from the transaction when permission of the Deputy Commissioner is refused. 8. Thus there can be no doubt that in this case the possession of Alaf plaintiff on the land‑ in suit under the questioned sale was reduced to that of a usufructuary mortgagee in the form permitted by section 6 of the Act for a maximum period of 20 years commencing from about the year 1918‑19 to the year 1938‑39 approximately. The transaction of sale in dispute did not receive the sanction of the Deputy Commissioner and as such it was converted automatically into the usufructuary mortgage. The two Courts below were clearly in error in ‑holding that the possession of Alaf on the land in ‑ dispute for this period was wrongful or adverse to that of the defendants. 9. A further question of considerable importance arises as to what was the nature and character of the possession of Alaf after the expiry of the statutory period of 20 years of the usufruc tuary mortgage. I am sorry to say that in this connection I have received little assistance from the learned counsel for the parties. However, in this connection a reported case, Deputy Commissioner, Gujrat v. Allahdad and others (A I R 1937 Lah. 408) by Addison', J. of the then Lahore High Court, has come to my notice. It lays down that the vendee's possession is deemed to be that of a usufructuary mortgagee under section 14, for the maximum period of 20 years from the date of the sale and that his continued possession for the years subsequent to the expiry of the period of 20 year would be that of a trespasser and vendee can claim the property by adverse possession after the expiry of the term of the mortgage. His possession ceases to be that of a mortgagee at the end of the maximum period of 20 years and his adverse possession commences from the date of the expiry of the period of the mortgage. But in that case there is no discussion on this subject and with due deference I and unable to subscribe to that view which is more in the nature of a mere obiter dicta. 10. There appears to be some divergence of opinion among the different High Courts of the Indo‑Pakistan Sub‑continent on this point. It is beyond doubt that a mortgagee, entitled to retain possession of the mortgaged property under the terms of the mortgage, cannot during the subsistence of the mortgage convert his possession by unilateral acts or assertions on his part into one adverse to the mortgagor. The reason is that the possession of the mortgagee must be referred to the title under which he acquired it, and he cannot be permitted to claim adverse possession by discarding that title. The possession of the mortgagee at its inception is‑ derived from his mortgagor and cannot be treated as hostile towards him. So long as the relation of the mortgagor and mortgagee subsists between the parties, the possession of the mortgagee will not become adverse Madan; Gopal Singh v: Lala Hynnoman Dhobay ((1862) Suth W R 37) and Khiarajmal v. Diam (I L R (1904) 32 Cal. 296). In some cases it has been held 'that by the mere fact that mortgage has been discharged by payment, the continued possession of the mortgagee becomes adverse to the mortgagor from the moment of the payment. See Deputy Commissioner Gujrat v. Allah Dad and others; Khushalla v. Bishan Dass (A I R 1925 Lah. 616) and Mst. Ram Koer v. Gobind Ram (A I R 1926 All. 62) A contrary view has been expressed in a number of other cases in which it has been maintained that the mere fact that the debt has been discharged will not turn the possession of the mortgagee adverse to the mortgagor. There is a third category of cases. Mst. Beti Bai v. Tantya Singh (A I R 1926 All. 136); Barasith Golder v. Jala Dhar Bisivar (A I R 1930 Cal. 15); Keshab Lall Goswamy v. Phola Nath (A I R 1930 Cal. 402) and Ram Bux Singh v. Ganga Pal Singh (A I R 1933 Oudh 13) which proceed on the basis that the question whether the possession of the mortgagee after the payment of the mortgaged money is or is not adverse to the mortgagor, depends on the animus or intention of the parties. 11. It appears to the that the mere fact that the mortgage -debt has been discharged automatically out of the usufruct of the, property or otherwise by payment will not ipso facto alter and change the character and nature of the possession held by the mortgagee from then onwards. Thereby his possession does not necessarily, become adverse or hostile towards his mortgagor. He remains liable to account for rents and, profits of the property as if he is a mortgagee in possession. He is under a statutory obligation to retransfer the property to his mortgagor on redemption. A suit by the mortgagor for redemption or recovery of possession of the property' can be brought against his mortgagee within a period of 60 years and is governed by Articles 148 of the Limitation Act, 1908. So long as this right of redemp tion subsists and is not barred by limitation, the possession of the mortgagee cannot be considered to be adverse in the absence of any other circumstance. I am fortified in this conclusion on a reference to the provisions of Order XXXIV, rule 9, Civil Procedure Code. These empower the Court to pass a decree fort the retransfer and possession of mortgaged property in cases where it is found that the mortgagee has been paid or overpaid the amount due to him. I am far from suggesting that it is not at all open to a mortgagee who continues to retain possession of the mortgage property even after the debt was discharged, to set up adverse possession by an overt act and hostile repudiation of title of his mortgagor. All that I have said is that on 'a satisfaction of the debtor with the expiry of the term of the mortgage the nature and character of the continued possession held by the mortgagee does not automatically become adverse and hostile towards the mortgagor. For these reasons, I regret, that I am unable to agree with the obiter dicta in Deputy Commissioner, Gujrat v. Allahabad in which a contrary view was expressed by Addison, J. without any discussion on this topic. 12. In Habib Ullah and others v. Abdul Hamid and others (I L R.34 All. 261) it was held that the possession of a mortgagee does not become adverse to the mortgagor merely because the mortgagee remains in possession after the mortgage money has been satisfied out of usufruct or has been otherwise paid off. Much more is required to set time running against the mortgagor. In Keshab Lal Goswami v. Bhola Nath Gangoadhya and others it was similarly held that the possession of mortgagee continuing in possession after satisfaction of debt is not necessarily adverse and it was not the law that merely because the mortgage debt has been satisfied and the mortgagee continues in possession, his possession becomes adverse from the point of time of satisfaction of the mortgage debt. It was further remarked in that case that the question whether the possession of the mortgagee after the mortgage debt has been satisfied is adverse to the mortgagor or not, is always a question of animus or intention of the parties concerned. In another case Harasit Golder and others v. Jaladhar Biswas and others, Mitter, J: has held that the mere payment of mortgage money without more does not amount to adverse possession by the mortgagee after the date of payment. Suleman J. in Mst. Beti Bai v. Tantya Singh and others has given similar expression of views on the subject and remarked that even if a mortgage debt is discharged, it does not mean that the continued possession of the mortgagee becomes adverse. Two years later Sulaiman, Acting Chief Justice, as he then was, in the Full Bench case of Sohan Lal and others v. Mohan Lal and others (A I R 1928 All. 726) reiterated his earlier views on the subject. In Phekua v. Padu (I L R 33 Pat. 955) a Division Bench of the Patna High Court observed that one a mortgagee is put in possession under a valid mortgage, hi possession does not become necessarily adverse after the expiry of the term. A mortgagee has to set up some adverse title in justification of his plea that the right of the mortgagor has become extinct after the lapse of 12 years. A mere assertion of an adverse title will not enable a mortgagee in possession to abbreviate the period of 60 years which the law allows to a mortgagor to prosecute his right to redeem and seek his remedy by a suit. 13. Reverting to the facts of the present case by virtue of the fiction of law grafted by section 14 of the Punjab Alienation of Land Act, the position of Alaf was reduced to that of a usufructuary mortgagee for a period of 20 years in form (a) permitted by section 6 of the Act. Thereby the mortgagee was authorised to retain possession of the land in dispute and to receive the rents and profits of the land in lieu of interest and towards the payment of the principal on the condition that after the expiry of 20 years, the land shall be redelivered to the mortgagor. By the operation of section 7 (2) of the Act the mortgage-bebt is deemed to have extinguished on the expiry of this period of 20 years and cause of action accrued to the mortgagor to sue for recovery of possession of the land by redemption. There is nothing on the record to show that the possession of the plaintiff became adverse by any overt act on his part after the expiry of the initial term of 20 years from about 1939‑40 onward. His position continues to be that of a mortgagee who is liable to surrender possession of the property on the extinction of the mortgage‑debt and he cannot be considered to have acquired title to the land in suit by adverse possession. 14. For the reasons discussed above I cannot hold that the plaintiff‑appellant has acquired title to the land in dispute by adverse possession or otherwise and this suit is liable to be dismissed. As a result this appeal must fail and is dismissed with costs throughout. K. B. A. Appeal dismissed.