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Judgment
(1) Both these appeals arise out of the judgment and order dated 3rd July, 1990 delivered by 3rd Additional District Judge, Beed in RCA No.30/1981.
Second Appeal No.80/1991 is filed by original defendants; whereas Second Appeal No.188/1991 is filed by the original plaintiffs.
(2) Learned Counsel Smt. Ansari is appearing for the appellants in Second Appeal No.80/1991 whereas learned Counsel Shri CR Deshpande is
appearing for the appellants in Second Appeal No. 188/1991. Both the learned counsel are appearing for the respondents in each other’s
appeals. For the sake of convenience, the parties are herein after referred to by their original status in the suit.
(3) Plaintiffs had filed RCS No.232/1976 in the court of Civil Judge, Junior Division, at B3eed for redemption of mortgage. Municipal house No.134,
219 (Old municipal house No.92) was the property involved in the said suit, which is herein after referred to as suit house.
(4) It was the contention of the plaintiffs that the suit property was owned and possessed by one Hazi Gulam Mohammed s/o Hazi Hussain
Mohammad, father of plaintiff Nos.1 to 4 and defendant Nos. 10 and 11 and husband of plaintiff No.5 and that he was in its exclusive possession and
enjoyment. It was the further contention of the plaintiffs that Hazi Gulam Mohammed was in need of money and he, therefore, borrowed 2500
silver coins, equivalent to Rs.2141.86 ps from one Sayeeda Zaitunbee, mother of deft.Nos. 1 to 5 and grandÂmother of deft.Nos.7 to 9Â on 3rd
August, 1947. In lieu of said consideration, Hazi Gulam Mohammed mortgaged the suit house for two years from 1.8.1947 to 31.7.1949 and
executed a registered mortgageÂdeed in favour of Sayeeda Zaitunbee. The conditions of mortgage were that, there shall not be interest on the
money borrowed and there shall not be any rent to the mortgaged house and after repayment of the principal of the mortgage money within two years,
the suit house will be redeemed and possession of the mortgaged house will be given to the mortgagor. Since the date of mortgage, Sayeeda
Zaitunbee, the mortgagee was put in possession of the suit house.Â
(5) Within few years of execution of the mortgage deed in respect of the suit house, the mortgagor viz. Hazi Gulam Mohammed and the mortgagee
Sayeeda Zaitunbee both expired. After death of Sayeeda Zaitunbee, deft.Nos. 1 to 9, as legal heirs and successors of said Sayeeda Zaitunbee,
came in possession of the mortgaged house. After death of mortgagor Hazi Gulam Mohammed, his legal heirs came in possession of his
properties. Plaintiff Nos. 1 to 3 and deft.Nos. 10 and 11 are the sons, plaintiff No.4 is daughter and plaintiff No.5 is widow of deceased Hazi Gulam
Mohammed.
(6) It was the further contention of the plaintiffs that though the plaintiffs asked the defendants to accept the mortgage amount and redeem the
mortgage and hand over possession of the suit house to them, they avoided to accept the money and to hand over the possession and at last denied to
redeem the suit house and to give its possession to the plaintiffs on 15.10.1976. The plaintiffs, therefore, filed the suit as noted herein above seeking
redemption of mortgage.
(7) Defendant Nos.1, 3, 5, 6, 8 and 9 filed a common written statement, resisting the contention raised in the plaint and the prayer made therein.Â
Deft.Nos.1, 2 and 4 commonly filed the another written statement on the lines of the written statement filed by the other defendants.
The defendants denied the claim of the plaintiffs. It was the contention of the defendants that deft.Nos.10 and 11 had redeemed the mortgage way
back in the year 1959 and had subsequently sold the suit house to deft.No.9, vide registered sale deed executed in his favour on 7.7.1959 and since
then, they were in possession of the suit house as owner of the suit house. It was also contended by the defendants that at the relevant time, the
defendants had returned the original documents and mortgage deed to deft.Nos.10 and 11 by making an endorsement thereon that they have received
the mortgage money from the defendants.Â
. It was the further contention of the defendants that in the year 1959 itself, deft.No.9 preferred an application to the municipal council for recording
his name in the municipal record as owner of the suit house. After filing of such application by deft.No.9, notices were issued to the plaintiffs by the
Municipal Council. The plaintiffs appeared in the said proceeding and opposed for mutating the name of deft.No.9 as owner of the suit house by
filing their written reply. The Municipal authority, after having conducted the due enquiry, ordered to record name of deft.No.9 as the owner of the
suit house and directed the plaintiffs to get their alleged rights decided by the competent civil court. It was the further contention of the defendants
that all above facts were well within the knowledge of the plaintiffs. The defendants had, therefore, objected the suit filed by the plaintiffs being not
maintainable and beyond the period of limitation. The defendants had also raised the plea of adverse possession.
(8) Based on the rival pleadings of the  parties, issues were framed by the learned trial court. In order to substantiate the contentions raised in the
suit plaint, three witnesses deposed on behalf of the plaintiffs and two witnesses testified for the defendants. The learned Joint Civil Judge, Junior
Division, after having assessed the oral and documentary evidence brought on record before him, dismissed the suit, vide the judgment and order
passed on 31st December, 1980. Aggrieved by the said decision, the plaintiffs preferred RCA No.30/1981 in the District Court at Beed. The
learned 3rd Additional District Judge, Beed, vide his judgment dated 3rd July, 1990 allowed the appeal and ordered the preliminary decree about
redemption of mortgage of the suit property to the extent of plaintiffs’ share therein under Order XXXIV Rule 7 of the Code of Civil
Procedure. Dissatisfied by the judgment and decree passed, the appellants and the respondents therein both have preferred the respective second
appeals before this Court.
(9) The record shows that this Court (Coram: G.D.Kamat,J.) vide order passed on 16.2.1991, admitted the Second Appeal No.80/1991 on Ground I,
IV, VI and VII in the memo of appeal as substantial questions of law. Second Appeal No. 188/1991 was admitted by this Court (Coram: Patil,J.)
vide order passed on 22.7.1991 on Ground No.5 of the said appeal as substantial question of law. I deem it appropriate to reproduce the said
substantial questions of law, as under â€
SECOND APPEAL NO.80/1991
“I. The learned Additional District Judge, Beed erred in law in decreeing the suit of the plaintiff for resumption partly, i.e. to the extent of the share
of the plaintiff, when it is settled law that suit for redemption cannot be decreed partly;
IV. When it in on record and held by the Additional District Judge, Beed, that the plaintiffs are knowing redemption and they objected to entry in
municipal council, only on the count that the sale deed can not be executed and no whisper about the redemption, then, the learned Judge should have
held that the suit cannot be decreed when the property was already redeemed and sold to the defendants after redemption, i.e. after 12 years;
VI When it has been held by the Trial Court that the mortgage transaction is not subsisting and without disturbing this finding, the learned Additional
District Judge decreed the suit for redemption;
VII The learned Appellate Judge should have held that the defendants are in possession for more than 12 years, and that too with the permissive
possession by coÂsharers and therefore the appellants defendants have become owners by adverse possession also.â€
SECOND APPEAL NO.188/1991
“(V) The lower appellate court has not framed the issues properly and only on the wrong interpretation of Section 92 of the Transfer of Property
Act and sections 60 and 70 of the Indian Contract Act, partly allowed the appeal to the extent of plaintiffs' share which is illegal.â€
(10) Heard Smt.Ansari, learned counsel appearing for the appellants in Second Appeal No. 80/1991. The learned counsel submitted that the first
appellate court has grossly erred in reversing the judgment and order passed by the trial court without there being any justifiable reasons there for.Â
The learned counsel submitted that in view of the settled law that the suit for redemption cannot be partly decreed, the order passed by the first
appellate court, partly decreeing the suit of the plaintiffs for redemption of mortgage is apparently illegal. The learned counsel further submitted that
the first appellate court completely lost sight of the fact that the suit property was already redeemed in the year 1959 by deft.Nos.10 and 11 and as
such, suit for redemption of the mortgage was not maintainable at the instance of the remaining coÂmortgagors.Â
(11) The learned counsel further submitted that the first appellate court also failed in appreciating that after the mortgage was redeemed by
deft.Nos.10 and 11, the suit property was sold to deft.No.9 and the registered sale deed in that regard was executed on 7.7.1959. The learned
counsel further submitted that the first appellate court also failed in appreciating that the suit house was mutated in the name of deft.no.9 in the
Municipal record as owner of the suit house and in the enquiry carried out at the relevant time the plaintiffs had appeared and resisted the said
application. The learned counsel further submitted that the plaintiffs thus had become aware of the redemption of the mortgage by deft.Nos.10 and
11 in the year 1959 as well as about the registered sale deed executed in favour of deft.no.9 of the suit house on 7.7.1959.Â
(12) The learned counsel further submitted that in the aforesaid circumstances, the suit filed by the plaintiffs in the year 1976, praying for redemption
of mortgage of the suit house was not maintainable on any count and was also beyond the period of limitation. The learned counsel further
submitted that the plea of adverse possession raised by the defendants has also not been appropriately considered by first appellate court.Â
(13) The learned counsel, therefore, prayed for setting aside the judgment of the first appellate court. To support the plea of adverse possession
raised by the defendants, the learned counsel relied upon the judgment of the Patna High Court in the case of Sukhdeo Singh and Anr. Vs. Lekha
Singh and Ors  AIR 1957 Patna 502 and more particularly invited my attention to Para 30 thereof, which reads thus, Â
“30. The principles, therefore, which can be extracted from the above decisions of the Judicial committee, of this court, and, the other High Courts,
and, which seem to be firmly established, and, with which I am in respectful agreement, may be summarised thus:
(1) The maxim ""once a mortgage always a I mortgage"" applies; and the only way in which a mortgage can be terminated as between the parties to it
is by the act of the parties themselves, or by merger, or by an order of the Court, or by a special statute to debar it. Therefore, when a party enters
upon possession as a mortgagee, the mortgagor has a right to redeem, unless there is either a contract between the parties, or, a merger, or a special
statute, or an order of the Court to debar them, as provided by the proviso to section 60 of the Transfer of Property Act.
(2) A mortgage cannot, by a mere assertion of his own, or, by a unilateral act on his own part, convert his possession as mortgagee into that of an
absolute owner.
(3) The bilateral acts of the parties, though invalid, and, therefore, inoperative, to convey title on the dates of those transactions, would operate to give
adverse possession, which if continued for the statutory period, would ripen into a good title. Where, therefore, both the mortgagor and the mortgagee
agree by a transaction to which they are parties that the character of possession as mortgagee should change into that of possession as absolute
owner, in spite of the invalidity of the transaction to convey title at once the possession so given can operate on the expiry of the statutory period to
create title by adverse possession.
(4) Where, therefore, both the mortgagor and the mortgagee agree by a consensual act that the possession hitherto held as mortgagee should now
henceforth be held as vendee, such a transaction is tantamount to delivery of property by the vendor to the vendee.â€
(14) Shri CR Deshpande, learned counsel appearing for appellants in Second Appeal No. 188/1991, also assailed the impugned judgment and order.Â
The learned counsel submitted that the first appellate court has wrongly interpreted Section 92 of the Transfer of Property Act as well as Sections 60
and 70 of the Indian Contract Act. The learned counsel submitted that the first appellate court must have allowed the suit of the plaintiffs in toto in
view of the fact that the alleged redemption of mortgage was completely illegal and was not binding on the plaintiffs. The learned counsel submitted
that the first appellate court also did not properly appreciate that the sale deed executed in favour of det.No.9 by deft.Nos.10 and 11 was also not
having any binding force of law. The learned counsel further submitted that the first appellate court must have given the directions as about the
payment of mortgage money to the mortgagee defendants without which no executable decree could have been passed by the court.Â
(15) The learned counsel further submitted that the objections raised on behalf of the defendants that the suit filed by the plaintiffs was barred by
limitation, is unsustainable in view of the law laid down by the Hon'ble Apex court in the case of Valliama Champaka Pillai Vs. Sivathanu Pillai and
Ors. Â AIR 1979 SC 1937. The learned counsel submitted that the plaintiffs could have filed the suit for redemption of mortgage within the period of
30 years of executing the registered mortgage deed executed in favour of Sayeeda Zaitunbee in the year 1947. The learned counsel invited my
attention to the observations made and the law laid down by the Hon'ble Apex court in paras 28 and 31 of the aforesaid judgment, which read thus, Â
“(28) Steering clear of the tangled web of conflicting and confusing decisions rendered on an interpretation of the relevant provisions of the
Transfer of Property Act, 1882, as they stood before the amendment of 1929, we may say at once that even where the Transfer of Property Act was
not in force, a redeeming coÂmortgagor discharging the entire mortgage debt, which was the joint and several liability of himself and his coÂ‐
mortgagor, was, in equity, entitled to be subrogated to the rights of the mortgagee redeemed and to treat the nonÂredeeming comortgagor as his
mortgagor to the extent of the latter's portion or share in the hypotheca and to hold that portion or share as security for the excess payment made by
him. This equitable right of the redeeming coÂmortgagor stems from the doctrine that he was a principal debtor in respect of his own share only, and
his liability in respect his coÂdebtor's share of the mortgage debt was only that of a surety; and when the surety had discharged the entire mortgage
debt, he was entitled to be subrogated to the securities held by the creditor, to the extent of getting himself reimbursed for the amount paid by him over
and above his share to discharge the common mortgage debt.
(31) From what has been said above it is clear that where the Transfer of Property Act is not in force and a mortgage with possession is made by two
persons, one of whom only redeems discharging the whole of the common mortgage debt, he will, in equity, have two distinct rights: Firstly, to be
subrogated to the rights of the mortgagee discharged, visÂaÂvis the nonÂredeeming coÂmortgagor, including the right to get into possession of the
latter's portion or share of the hypotheca.
Secondly, to recover contribution towards the excess paid by him on the security of that portion or share of the hypotheca, which belonged not to him
but to the other coÂmortgagor. It follows that where one coÂmortgagor gets the right to contribution against the other coÂmortgagor by paying off
the entire mortgage debt, a correlated right also accrues to the latter to redeem his share of the property and get its possession on payment of his
share of the liability to the former. This corresponding right of the 'nonredeeming' coÂmortgagor, to pay his share of the liability and get possession of
his property from the redeeming coÂmortgagor, subsists as long as the latter's right to contribution subsists. This right of the 'nonÂredeeming' coÂ‐
mortgagor, as rightly pointed out by the learned Chief Justice of the High Court in his leading judgment, is purely an equitable right, which exists
irrespective of whether the right of contribution which the redeeming coÂmortgagor, has as against the other coÂmortgagor, amounts to a mortgage
or not.â€
(16) The learned counsel further submitted that by paying the entire borrowed money, deft.Nos. 10 and 11 subrogated themselves in place of original
mortgagee. In the circumstances, according to him, the plaintiffs were having corresponding right being nonredeeming coÂmortgagors to get
possession of their share in the suit property from redeeming coÂmortgagors on payment of their share of liability. In support of his contention, the
learned counsel relied upon the judgment in the case of Paramjota Devi and Ors. Vs. Shamsul Zoha and Ors. Â AIR 2009 Patna 6.Â
(17) Objecting to the plea of adverse possession raised by the defendants, learned counsel, relying upon the judgment of the Madras High Court in the
case of Nallamal Vs. Sivan Ammal and Ors.ÂAIR 1975 Madras 100, submitted that the possession of the defendants being referable to lawful title
does not become adverse to the plaintiffsÂnon redeeming mortgagors and as such, the suit filed by the plaintiffs though may be appearing to have
been filed beyond 12 years of redemption of original mortgage by deft.Nos.10 and 11, was not, in fact, barred by limitation.
(18) I have given due consideration to the submissions made by the learned counsel appearing for the respective parties. I have perused the
judgment passed by the first appellate court as well as the trial court and also the evidence on record. It is not in dispute that Hazi Gulam
Mohammed borrowed the amount in the form of 2500 silver coins from one Sayeeda Zaitunbee in the year 1947 and in lieu of that, executed the
registered mortgage deed in her favour of Municipal house Nos.134 & 219 (Old Municipal house No.92) and also put said Sayeeda Zaitunbee in
possession of the said house. It is further not in dispute that within 4Â5 years of the execution of the aforesaid mortgage deed, original mortgagor and
original mortgagee both died. It is further not in dispute that deft.Nos. 10 and 11 are the sons of deceased Hazi Gulam Mohammed. The evidence
on record shows that the defendants have successfully proved that in the year 1959, deft.Nos.10 and 11, the legal heirs of original mortgagor viz.
deceased Hazi Gulam Mohammed, redeemed the mortgage by repaying the mortgage money to deft.Nos. 1 to 9. The defendants have further brought
on record the dependable evidence showing that deft.Nos.10 and 11 sold the suit house and executed the registered saleÂdeed in favour of
deft.No.9. The defendants have also brought on record the evidence demonstrating that deft.No.9 had applied to the Municipal Council for mutating
his name in its record as owner of the suit property on the basis of the registered saleÂdeed executed by the defendant Nos. 10 and 11 in his
favour. It has also come on record that the application so preferred by deft.No.9 was objected to by the plaintiffs by filing written submission.Â
The evidence on record further demonstrates that the Municipal authority declined to consider the objection raised by the plaintiffs and had directed
the plaintiffs to get decided their rights by approaching the civil court. The plaintiffs admittedly filed the suit in the year 1976 mentioning therein that
the cause of action for filing the suit arose on 15.10.1976 when the defendants denied to redeem the mortgage and to give possession of the suit house
to them.
(19) Section 60 of The Transfer of Property Act pertains to right of mortgagor to redeem. Article 61 of the Limitation Act, 1963 provides the period of
thirty years for filing the suit to redeem or recover possession of immovable property mortgaged when the right to redeem or to recover possession
accrues. The entire emphasis of the plaintiffs is on the aforesaid two provisions to assert that the suit filed by them was well within the period of
limitation and perfectly maintainable. The plaintiffs have also taken support of Section 92 of the Transfer of Property Act, i.e. 'doctrine of
subrogation'.Â
(20) It is well settled that one of the coowners or one of the coÂmortgagors is entitled to redeem the mortgage and on redemption, he subrogates into
the shoes of mortgagee. Alongwith the plaintiffs, deft.Nos.10 and 11 had become coÂmortgagors after the death of original mortgagor â€" Hazi
Gulam Mohammed, being his sons. Deft.Nos. 10 and 11, being coÂmortgagors, were thus, entitled to redeem the mortgage by repaying the entire
borrowed money to legal heirs of mortgagee.Â
(21) The question, however, arises in above circumstance, what would be the rights of nonredeeming coÂmortgagors. In the case of Valliama
Champaka Pillai (cited supra), the Hon'ble Apex court has dealt with the issue. Hon'ble Apex court has held thus, Â
“ Where one coÂmortgagor gets the right to contribution against the other coÂmortgagor by paying off the entire mortgage debt, a correlated right
also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This
corresponding right of the 'nonredeeming' coÂmortgagor, to pay his share of the liability and get possession of his property from the redeeming coÂ‐
mortgagor, subsists as long as the latter's rights to contribution subsists. This right of the 'nonÂredeeming' coÂmortgagor, is purely an equitable right,
which exists irrespective of whether the right of contribution which the redeeming coÂmortgagor has as against the other coÂmortgagor, amounts to a
mortgage or notâ€
(22) In view of the law laid down by the Hon'ble Apex court, as above, it was the contention of Shri Deshpande, learned counsel appearing for the
plaintiffs that the suit filed by the plaintiffs within the prescribed period of limitation i.e.thirty years, seeking redemption of the mortgage and the further
prayer for putting the plaintiffs in possession of the suit house, after redemption by dispossessing deft.Nos.1 to 9, was perfectly maintainable and must
have been allowed by the trial court. It was also the contention of the learned counsel that it was not permissible for deft.Nos.10 and 11 to sell the
suit house and to execute the sale deed in favour of deft.No.9 after the alleged redemption without express permission of the other coÂmortgagors,
i.e. the plaintiffs and it was equally impermissible for the defendants and more particularly for deft.No.9 to get executed the sale deed of the suit
house only under the signatures of two coÂowners, i.e. deft.Nos.10 and 11 and without consent of the other coÂowners of the suit house.
(23) Learned Counsel Ms. Ansari argued that the 'doctrine of subrogation' may not apply to the facts of the present case. Reading out the
provisions under Sections 91 and 92 of the Transfer of Property Act, it was submitted by the learned counsel that the 'doctrine of subrogation' can be
pressed into service by a third person and not by the coÂmortgagor or coowners of the property, in question. I am, however, unable to agree with
the submission so made by Smt. Ansari. The Hon'ble Apex court in the case of Valliama Champaka Pillai Vs. Sivathanu Pillai and Ors.  AIR
1979 SC 1937), has clearly held that even one of the comortgagors is entitled to redeem mortgage and on redemption, he subrogates into the shoes of
the mortgagee. The Hon'ble Apex court in the said judgment has further held that, right of nonredeeming coÂmortgagors to pay their share of the
liability and get possession of the property from redeeming coÂmortgagor subsists as long as latter’s right to contribution subsists. In this
context, it was contended by Shri CR Deshpande that even though deft.Nos.10 and 11 had redeemed the mortgage, could not have entered into any
further transaction and must have held the property at least for the period of 30 years from the date of mortgage. It was also contended by Shri
Deshpande that till expiry of the period of 30 years from the date of mortgage, the nonredeeming coÂmortgagor i.e. the plaintiffs were entitled to
maintain the suit for redemption even against deft.Nos. 1 to 9, who claimed to have purchased the suit property after it was redeemed by two of the
coÂmortgagors. Â
(24) The submission made by learned Counsel Shri Deshpande also cannot be wholly accepted. There cannot be any dispute as regards to the ratio
laid down in the case of Valliamma (cited supra). However, the facts involved in the present matter are bit different. In the instant matter, two
coÂmortgagors, i.e. deft. Nos.10 and 11, not only did redeem the mortgage by making payment of the entire mortgage money to the legal heirs of the
mortgagee, but also executed the registered sale deed in favour of deft.No.9 thereafter. It is thus evident that original mortgagee is now in
possession of the originally mortgaged property not in the capacity of the mortgagee, but as an absolute owner of the said property on the basis of the
registered sale deed executed in his favour on 7.7.1959 by deft.Nos.10 and 11.
(25) As provided under Section 60 of the Transfer of Property Act, right of redemption extinguishes by the act of the parties or by a decree of the
court. In the instant matter, deft.Nos.10 and 11, being coÂmortgagors, exercised their right to redeem the suit house by paying the entire borrowed
amount to the mortgagee. As noted herein before, one of the coÂowners or one of the coÂmortgagors is entitled to redeem the mortgage and on
redemption, he subrogates into the shoes of mortgagee. Once the mortgage was redeemed, the legal heirs of original mortgagee, viz. Syeda
Zaitunbee, ceased to be the mortgagees. It has also come on record that the mortgagees had returned the original document of mortgage deed to
deft.Nos. 10 and 11 by making an endorsement thereon that they received the mortgage money from the said defendants. The evidence on record
shows that thereafter deft.Nos.10 and 11 sold the suit house to deft.No.9 for the consideration of Rs.8,000/Â and executed the registered sale deed in
his favour on 7.7.1959. In the circumstances, the status of deft. No.9 was altered from the mortgagee to absolute owner of the suit house. In other
words, deft.No.9 or deft.Nos.1 to 9, were no more the mortgagees of the suit house, but had become absolute owners of the said house. After
7.7.1959 the possession of deft. Nos.1 to 9 over the suit house is in capacity of the absolute owner of the said house and not as mortgagees.Â
(26) In view of the fact that the mortgage was redeemed by two of the coÂmortgagors in the year 1959 and subsequently, the said property was sold
by them to defendant No.9 by way of the registered sale deed, right of the plaintiffs to seek redemption of the suit house from deft.Nos.1 to 9 stood
extinguished. The suit for redemption filed by the plaintiffs as against deft.Nos.1 to 9 and the further prayer made by them to put them inÂ
possession of the suit house by dispossessing the said defendants was thus liable to be dismissed.
(27) It was, however, the contention of learned Counsel Shri Deshpande appearing for the plaintiffs that since the sale allegedly executed by
deft.Nos.10 and 11 in favour of deft.No.9 itself was illegal, the action of the plaintiffs in bringing the suit for redemption of mortgage against the
defendants was maintainable. The submission so made was opposed by learned Counsel Smt. Ansari appearing for the defendants. Relying on the
judgment of the Division Bench of  Patna High Court in the case of Sukhdeo Singh Vs. Lekha Singh (cited supra), learned counsel Smt. Ansari
submitted that even if the sale deed executed in favour of deft.No.9 is held to be invalid, the possession of the defendants over the suit house w.e.f.
7.7.1959 for the continuous period of more than 12 years thereafter has created title of the suit house in favour of the defendants by adverse
possession.Â
(28) I find substance in the submission so made by learned Counsel Smt. Ansari. From the evidence on record it is established that the plaintiffs
were fully aware of the fact of the execution of the sale deed dated 7.7.1959 by deft.Nos.10 and 11 in favour of deft.No.9. As has come on record,
when deft.No.9 had made an application in the year 1959 to the municipal authorities for mutating his name to the suit house, notices were issued to
the original owner of the suit house, i.e. present plaintiffs and the plaintiffs had filed written objections before the municipal authorities through their
counsel. It is also the matter of record that discarding the said objection, name of deft.No.9 was mutated over the suit property as its owner on the
strength of the registered sale deed executed in his favour. It is also the matter of record that the municipal authorities, at the relevant time, had
advised the plaintiffs to ventilate their grievance by initiating the civil proceedings in that regard in the competent civil court. The plaintiffs had thus
got knowledge of the sale deed executed in favour of deft.No.9 by deft.Nos. 10 and 11 in respect of the suit house in the year 1959 itself.Â
(29) In the above circumstances, the plaintiffs must have filed the suit for possession of the suit house within the period of 12 years from the date of
their knowledge. The plaintiffs, admittedly did not file the suit within the said period of 12 years.  Since deft.No.9 openly continued to be in
possession of the suit house after 7.7.1959 for more than 12 years with the knowledge of the plaintiffs and without any interruption, even though the
sale deed executed in his favour is held inoperative to convey title, has acquired the title by way of adverse possession, as has been held by the
Division Bench of the Patna High Court in the case of Sukhdeo Singh (cited supra).
(30) Smt. Ansari, learned counsel, relied upon one more judgment delivered by the Division Bench of Patna High court in the case of Badrisingh and
Ors. Vs. Baldevsing and Ors. â€" AIR 1962 Patna 198. In the said case, the defendants mortgagees were in possession of the suit lands as
purchasers since 1917 and asserted their rights as purchasers since 1919Â1920. The sale allegedly executed in favour of the defendants
mortgagees was held invalid for nonÂcompliance of certain provisions of law. But, since the defendants mortgagees had asserted their rights as
purchasers since 1919Â1920, they were held to have acquired the title as absolute owners of the suit lands by 1932 because of their adverse
possession.
(31) In the case in hand, deft.No.9 asserted his right over the suit house as purchaser since 1959. As noted herein above, it was well within the
knowledge of the plaintiffs since the year 1959 itself that deft.No.9 has purchased the suit house by the registered sale deed from deft.Nos. 10 and11
on 7.7.1959. In the circumstances, even if it is held that the sale deed executed in favour of deft.No.9 by deft.Nos.10 and 11 was illegal and
inoperative, since deft.No.9 asserted his right as purchaser of the suit house in 1959, he has to be held to have acquired the title as owner of the suit
house after expiry of the statutory period by way of adverse possession.
(32) Relying on the judgment of the Patna High Court in the case of Paramjota Devi Vs. Shamsul Zoha and Ors. â€" AIR 2009 Patna 6, it was sought
to be contended by learned Counsel Shri Deshpande that the plaintiffs being nonÂredeeming coÂmortgagors were having every right to get
possession of their share in the suit house from the redeeming coÂmortgagors on payment of their share of liability and limitation for filing any suit in
that regard was 30 years. The learned counsel submitted that the deed of mortgage was executed in the year 1947 and as such, the suit filed by the
plaintiffs seeking redemption of mortgage in the year 1976, i.e. within the period of 30 years, was perfectly maintainable.Â
(33) The argument advanced, as above, is liable to be rejected. The judgment relied upon by the learned counsel is on altogether different facts.Â
In the said matter, the question at issue was whether the suit filed by the plaintiffs therein for redemption of mortgage against the defendants, who
were subsequently added as defendants in the said suit, was maintainable or not. By interpreting Section 21(1) of the Limitation Act, the learned
Single Judge of the Patna High Court held the suit even against the added defendants to be within limitation in view of the specific provision under
section 21(1) of the Limitation Act. In the instant matter, the coÂmortgagors admittedly sold the mortgaged property after it was redeemed by them
to one of the legal heirs of the original mortgagee and the plaintiffs filed the suit against the legal heirs of the said mortgagee after expiry of the period
of 12 years from purchase of the said property by the said mortgagee.
(34) As I have elaborately discussed herein above, possession over the suit house of defendant No.9, after 7.7.1959 was not as the mortgagee of the
suit house, but as an absolute owner of the said house being purchaser of the said house irrespective of the fact whether the sale deed executed in his
favour was valid or otherwise.
(35) Reliance was also sought to be placed on the judgment of the Punjab and Haryana High Court in the case of Roshan and Ors. Vs. Union of India
and Ors. â€" AIR 1972 Punjab & Haryana, 352. I have carefully gone through the facts of the said case, which are altogether different from the
facts involved in the present matter and as such, the law laid down in the said judgment would not apply to the facts of the present case.
(36) While opposing the plea of adverse possession raised by the defendants, reliance was placed by learned Counsel Shri Deshpande on the Division
Bench Judgment of the Madras High Court in the case of Nallammal Vs. Sivani Ammal and Anr. â€" AIR 1975 Madras 100. Inviting my attention
to the discussion made in Para 5 of the said judgment, it was argued by Shri Deshpande that the possession of the defendants being referable to the
lawful title does not become adverse to the nonÂredeeming coÂmortgagors, i.e. plaintiffs and as such, the suit filed beyond 12 years of redemption of
mortgage by deft.Nos. 10 and 11, was not barred by limitation. I am not convinced with the argument so made by Shri Deshpande. In the case of
Nallammal Vs. Sivani Ammal and Anr. (cited supra), adverse possession was claimed by the redeeming coÂmortgagors against nonÂredeeming coÂ‐
mortgagors and in that situation, it was held by the Division Bench of the Madras High Court that the plea of adverse possession raised by the
redeeming coÂmortgagors, against the nonÂredeeming coÂmortgagors was not maintainable. In the instant matter, the plea of adverse possession
is not raised by the redeeming coÂmortgagors, but by the person, who purchased the suit house from the redeeming coÂmortgagors.
In view of the judgment of the Division Bench of the Patna High court in the case of Badrisingh and Ors. Vs. Baldevsing and Ors. â€" AIR 1962
Patna 198, such plea by the purchaser was perfectly maintainable.
(37) Under Article 61 of the Limitation Act, 1963, a suit for redemption can be filed by the mortgagor within the period of 30 years when the right to
redeem or to recover possession accrues. In the instant matter, the mortgageÂdeed was executed in the year 1947 and as per the conditions of
mortgage, it was for the period of two years. The right to redeem mortgage thus can be said to have accrued in favour of the mortgagors in the
year 1949 and thus the mortgagors could have filed the suit to redeem or recover possession of the suit house within 30 years from 1949. It was,
therefore, the argument of learned Counsel Shri Deshpande that the suit filed by the plaintiffs in the year 1976 for redemption of mortgage and for
possession of the suit house was within the period of limitation.Â
(38) As has come on record, the suit house was redeemed in the year 1959 itself by two of the coÂmortgagors, i.e. deft.Nos.10 and 11 and on
redemption the said redeeming coÂmortgagors subrogated into the shoes of the mortgagee. It is not in dispute that the said redeeming comortgagors
sold the redeemed suit house to the original mortgagee, more particularly to deft.No.9 and executed the registered sale deed in his favour on
7.7.1959. It is also not in dispute that on the strength of the aforesaid saleÂdeed, the suit house was transferred in the name of deft.no.9 in the
municipal record. There is further no dispute that such transfer of the suit house in the name of deft.No.9 as owner of the said house was well
within the knowledge of the plaintiffs since 1959. Considered the facts, as above, the suit filed by the plaintiffs for redemption of mortgage was
certainly not maintainable against the deft.Nos.1 to 9 since they had ceased to be the mortgagees after the mortgage was redeemed in the year
1959.Â
(39) Since the plaintiffs had become aware of the transfer of the suit house in the name of the defendant No.9 as an absolute owner of the suit house
in the year 1959 itself, even the suit for possession so filed by the plaintiffs in the year 1976 also was not maintainable, in view of the provision under
Article 61(b) of the Limitation Act, 1963,
(40) In the case of Dilboo (Smt.)(Dead) By L.rs. And Ors. and Ors. Vs. Dhanraji(Smt.)(Dead) and Ors. â€" (2000) 7 SCC 702, the Hon'ble Apex
court has held that, though the suit for redemption of mortgage could be filed within 60 years under Article 148 of the Limitation Act, if the
mortgagee had created an interest in excess of the rights enjoyed by him, then to recover possession against the third party, the suit had to be filed
under Article 134 of the Limitation Act, 1908 within the 12 years of the transfer becoming known to the plaintiff. Article 61(a) of the Limitation
Act, 1963 corresponds to Article 148 of the Act of 1908; whereas Article 61(b) of the Act of 1963 corresponds to Article 134 of the Act of 1908.
(41) In the instant matter, after the suit house was redeemed by two of the coÂmortgagors, i.e. deft.Nos. 10 and 11 in the year 1959, they had entered
into the shoes of mortgagee and deft.Nos. 1 to 9 ceased to be the mortgagees. Though it is the fact that redeeming comortgagors subsequently sold
the suit house to deft.No.9, i.e. one of the legal heirs of original coÂmortgagee, his status had altered to a third party transferee and in the
circumstances, as per the law laid down by the Hon'ble Apex court in the case of Dilboo (cited supra), even the prayer for possession of the suit
house, made by the plaintiffs against deft.Nos. 1 to 9 was beyond the period of limitation and on the expiry of 12 years, the title of third party
transferee, i.e. deft.No.9, was perfected.
(42) After having considered the facts involved in the present matter in light of the relevant legal provisions under the Transfer of Property Act,
Limitation Act and the Code of Civil Procedure, I have no doubt in my mind that the first appellate court has committed an error in allowing the appeal
and thereby directing drawing of the preliminary decree about the redemption of mortgage of the suit house to the extent of plaintiffs' share therein.Â
The first appellate court has failed in understanding the import of Section 92 of the Transfer of Property Act. Though the first appellate court has
rightly held that after redemption of the mortgage, deft.Nos.10 and 11 subrogated into the shoes of deft.Nos.1 to 9 and further that the other coÂ‐
mortgagors, i.e. plaintiffs were entitled to pay to the extent of their respective shares of mortgage amount and seek possession from the redeeming
coÂmortgagors, the further finding recorded by it that deft.Nos.10 and 11 while alienating the suit property to deft.No.9, by executing the registered
saleÂdeed in his favour, did not alienate the title of the suit property in respect of plaintiffs' share therein and what they sold was the right of
reimbursement derived under the doctrine of subrogation, is however, wholly incorrect and unsustainable.
(43) I have elaborately discussed herein  before that redemption of the suit house by two of the coÂmortgagors, i.e. deft.Nos. 10 and 11, was
permissible and perfectly within the four corners of law. Once the suit house was redeemed by the said coÂmortgagors, no another suit for
redemption of the mortgage, at the instance of the nonÂredeeming mortgagors, was maintainable against the original mortgagees. It was the
coincidence that deft.Nos. 10 and 11, i.e. redeeming coÂmortgagors sold the suit house after redemption to deft.No.9 and as such, deft.No.9
remained in possession of the suit house. However, after 7.7.1959, the character of possession of deft.No.9 or in that case of deft.Nos. 1 to 9 over the
suit house that of mortgagees had changed into that of possession as an absolute owner of the suit house on the basis of the sale deed executed in
their favour by deft.Nos. 10 and 11. If it was the contention of the plaintiffs that after redemption of the suit house, deft.Nos. 10 and 11 exceeded
the right, which was vested in them by executing the sale deed of the said house without their concurrence in favour of deft.No.9, then also, to
recover possession against deft.No.9, the plaintiffs must have filed the suit within the period of 12 years after the transfer of the suit house in the
name of deft.No.9 had become known to them in view of Article 61(b) of the Limitation Act. The plaintiffs admittedly did not file the suit within the
period of 12 years after the fact of execution of the sale deed in favour of deft.No.9 had become known to them. As such, as noted by me herein
before, the prayer made by the plaintiffs seeking possession of the suit house from deft.No.9, was also not liable to be maintained. It has to be
stated that the trial court has recorded a finding that the suit for redemption filed by the plaintiffs was within the period of limitation. In view of the
discussion made herein above, the finding so recorded cannot be sustained. However, the ultimate decision arrived at by the trial court to dismiss
the suit was correct and needs to be resetored. The first appellate court has committed an error in setting aside the said judgment and directing the
drawing of preliminary decree about redemption of mortgage of the suit property to the extent of plaintiffs' share therein under Order 34 Rule 7 of the
Code of Civil Procedure. The order passed by the first appellate court thus deserves to be set aside. In the foregoing circumstance and for the
reasons recorded above, Second Appeal No.80/1991 deserves to be allowed; whereas Second Appeal No.188/1991 deserves to be dismissed.
(44) In the result, the following order is passed, Â
ORDER
(I) Second Appeal No.80/1991 is allowed with costs;
(II) The order passed in Regular Civil Appeal  No.30/1981 on 3rd July, 1990 by 3rd Additional District Judge, Beed, is quashed and set aside;
(III) The order passed in Regular Civil Suit  No.232/1976 by the 2nd Joint Civil Judge, JD, Beed on 31st December, 1980 stands restored;
(IV)Second Appeal No.188/1991 stands dismissed with costs.Â
(V) Pending civil application, if any, stands disposed of.