Judgment

DWIVEDI, J.:- The dispute is about some land. The appellants instituted a suit against the respondent for possession over the land and for certain amount and mesne profits. In outline the plaint allegations were that the land was mortgaged with possession to one Kottath Ahmad for Rs. 600/- subject to payment of purappad of 291 paras of 7paddy per annumn after deducting interest on the mortgage amount. The mortgage was oral. The mortgagee s right was purchased in a court auction by the respondent. Since then the respondent is in possession as a mortgagee. The mortgage amount is fully paid up by the arrears of purappad. The appellants are entitled to remain in possession. The respondent contested the claim. He denied that he and his predecessor-in-interest have been in possession as a mortgagee. The oral mortgage cannot be proved in a court. According to him, his predeccor-in-interest was a tenant, and so he also is a tenant. The trial court decreed the suit. The trial court held that the respondent was in possession as a mortgagee and not as a tenant. His appeal was dismissed by the District Judge. The District Judge held that he was in possession as a mortgagee and not as a tenant. He than filed a second appeal in the High Court of Kerala. The High Court allowed the appeal and set aside the decree for possession passed by the trial court and the District Judge in favour of the appellants. The High Court granted a decree for the recovery of purappad. In support of its judgment the High Court gave two reasons. Firstly, the alleged mortgage was made some time after 1895 when the Transfer of Property Act was in force. A mortgage could be made only by a registered instrument, not by word of mouth. So no evidence could be led to prove an oral mortgage. The claim of the appellants based on an oral mortgage was accordingly, rejected. Secondly, the respondent was a tenant.

2. Counsel for the appellant has strenuously contended before us that the first reason is plainly erroneous. He has endeavoured to draw support from certain decisions. He has also urged that the High Court should not have upset the finding of fact recorded by the Courts below as regards tenancy. In any case, this finding of the High Court is plainly wrong. For the reasons to be stated presently, we do not think that it is necessary to examine the first submission of counsel for the appellants. It appears to us that they are entitled to the relief of possession on another short ground.

3. Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title. (See Ma Kyi v. Maung Thon, AIR 1935 Rang 230 at p. 232 (FB) and Hansia v. Bakhtawarmal, AIR 1958 Raj 102 at p. 106) Luckily for them, the appellants did not base their suit solely on the oral mortgage. They also founded their claim on their title. Notice the relief A (1) in the plaint:

"That in case the Court is of opinion that the plaintiffs are not entitle to sue on the strength of mortgage as there is no mortgage deed in respect of the properties the plaintiffs are entitled to sue on the strength of the title of their Tavazhi and hencethe Court may be pleased to decree the suit ordering the defendant to surrender the properties to the 1st plaintiff, with the past and future mesne profits relinquishing all the rights of the defendant."

In paragraph 1 of the plaint they set up their title to the disputed land. In paragraph 4 of his written statement the respondent says that he is not a mortgagee but a tenant and has Kudiayma rights in the land. So far from denying their title, he has impliedly admitted that they are the owners of the land. Again, he has not claimed ownership of the land by virtue of adverse possession. He simply claims permissive possession as a tenant under them. In the result, they are entitled to regain possession on the strength of their title unles