A mortgagee is not in possession qua mortgagee if he enters the property as lessee.

SATYANARAYANA RAJU, J. : -

This is an appeal from a judgment and decree of the Court of the Subordinate Judge of Masulipatam dismissing the appellants suit for redemption of the mortgage deed dated 27-7-1909, and for possession of the land specified in the plaint schedule.

2. The claim of the plaintiff for the above relief was, as stated in the plaint, founded on the following allegations. He acquired the lands described in the plaint schedule on payment of nazarana from the Court of Wards then in charge of the South Vallur Estate by means of a registered patta, dated 20-1-1909. Having become indebted to the 1st defendants family in a sum of Rs. 8,000/- he and others executed a simple mortgage, hypothecating the scheduled lands on 27-7-1909.

The plaint schedule mentioned lands were then barren and uncultivated. The 1st defendant and his brother, the late Bhaskararamamurthy, were men of influence and they represented to the plaintiff that if the lands stood in their names, they could use their influence to get irrigation facilities for the lands sooner. With that end in view, the lands were entered in the name of Bhaskararamamurthy in the revenue accounts in the year 1913 and by the year 1920 they were also entered in the name of the 1st defendant.

The 1st defendant was able to get irrigation facilities for 30 acres of the lands alone and only a small extent of the land being included in the wet ayacut, the 1st defendant and his late brother were pressing the plaintiff to discharge the mortgage-debt. They rejected the offer of the plaintiff to take the lands in discharge of their debt. The plaintiff made attempts to sell the lands but being frustrated in those attempts, consented in or about the year 1929 to allow the 1st defendant to have custody of the lands for the sake of better security for his debt, which he might realise either by cultivating the lands or by leasing them out.

Thus the 1st defendant entered into possession in 1929 and remained ever since in possession as a mortgagee. The plaintiff believes that if a proper account is rendered by the 1st defendant of the profits which he realised, the mortgage debt would have been completely discharged long ago after applying the provisions of the Madras Act IV of 1938 as the plaintiff is an agriculturist within the meaning of the Act. The 1st defendant, without any manner of right, executed a deed of sale in favour of the 2nd defendant on 13-4-1947.

3The first defendant contested the suit and denied the averments in the plaint. He pleaded inter alia that the plaintiff having abandoned all hopes of redeeming the mortgage-debt in accordance with the terms of the bond, requested him to pay the arrears of cist due to the Estate and take the land in discharge of the debt and relieve him of all liability thereunder.

He acceded to the repeated requests made by the plaintiff in that behalf and duly paid the arrears of rent and in order to implement the arrangement, joined the plaintiffs application to the Estate to transfer the lands in his name, and that thereupon mutation was effected in the Estate Accounts in 1913 and 1914. Since then he was in enjoyment of the property, and finally in or about the year 1921 or thereabouts, in response to the plaintiffs request, he agreed to take the lands as absolute owner in full quit of the plaintiffs liability and ever since he was, to the plaintiffs knowledge, in possession of the lands in his own right as absolute owner.

4. The 2nd defendant contended that he purchased an extent of Ac. 50-14 cents in S. No. 314 and 65 cents in S. No. 297/8 for Rs. 20,000/-from the 1st defendant on 13-4-1947. He claimed that he spent Rs. 10,000/- for improving the lands purchased by him.

5. Defendants 6 to 16, who are the tenants under the 2nd defendant, adopted his written statement.

6. Defendants 3, 17 to 22 and 27 to 29 remained ex parte and the 4th defendant was given up at the time of the trial of the suit.

7. The 1st defendant died during the pendency