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Judgment
Lakshmana Rao, J.—The plaintiff is the appellant, and the suit as amended in pursuance of the judgment of the High Court in S.A. No. 86 of
1927 is for recovery of the plaint properties from the respondent with mesne profits from 1919.
The title of the appellant to the suit properties is admitted and it is not disputed that as found by the Courts below the respondent is a trespasser
in possession since 23rd September, 1918. The suit was instituted on 3rd December, 1921 and normally the appellant would be entitled to a
decree for possession with mesne profits from 1919 as claimed. But the appellant had on 1st May, 1919, executed a usufructuary mortgage of the
properties in favour of one Moosan Kutti and his son Muhamad Kunhi for a period of two years, and though it is recited in the deed of mortgage
that possession had been given, the respondent was in possession of the mortgaged properties and they were not delivered to the mortgagees. The
debt is outstanding though the term of the mortgage expired before the institution of the suit, and the right of the appellant to possession and mesne
profits during the subsistence of the mortgage was challenged. The District Munsif upheld the claim of the appellant to possession and mesne
profits from 1921 and since he had taken possession of the properties and realised the mesne profits in execution of the decree which was
reversed in S.A. No. 86 of 1927, the District Munsif declared and decreed that the appellant was entitled to recover possession of the properties
with mesne profits for the year 1921. An appeal was taken by the respondent and the Subordinate Judge disallowed the claim for possession and
mesne profits.
The mortgage has not been redeemed though the term has expired and the question for decision is whether during the subsistence of the
mortgage the appellant is entitled to sue for possession and mesne profits. It was not disputed that in the absence of a contract to the contrary the
mortgagor has a statutory duty to put the usufructuary mortgagee in possession of the mortgaged properties nor was it contended that there was
any contract to the contrary in this case. The appellant has thus a statutory duty to put his usufructuary mortgagees in possession and it is common
ground that the mortgaged properties were not delivered to the usufructuary mortgagees in spite of the recital in the deed of mortgage. The latter
are not bound to sue and obtain possession from a trespasser in possession on the date of the mortgage, and as held by Reilly, J., in Krishna
Bhatta and Others Vs. Subbanna Sastri and Others, , after considering the entire case-law on the point, so long as the appellant has a statutory
duty to put his mortgagees in possession he has a right himself to sue the trespasser for possession in order that he may fulfil that duty. There is no
such statutory duty when the transferee is dispossessed by a trespasser after being put in possession as in the cases relied upon by the Subordinate
Judge and as pointed out in Mohideen Rowther v. Jayarama Aiyar (1920) 40 M.L.J. 38 : ILR 44 Mad. 937 the mortgagor would be entitled to
mesne profits at least by way of damages for the loss resulting to him from the trespass and prevention of the mortgagees from realising the profits
towards the mortgage money for which he continues to be liable. The decision of the trial Court was therefore right and the decree of the
Subordinate Judge cannot be sustained. It is therefore set aside and the decree of the trial Court is restored with costs here and in the lower
appellate Court.
Leave to appeal is granted.