THE ADVERSE POSSESSION OF A MORTGAGEE IS INTERRUPTED WHEN HE TAKES A MORTGAGE FROM THE MORTGAGOR.

Headnote:
THEV PATRA - MORTGAGE - REGISTRATION - ADVERSE POSSESSION - [SECTION 89, EVIDENCE ACT] - THE COURT HELD THAT THE PLAINTIFFS WERE ENTITLED TO A DECREE FOR JOINT POSSESSION OF THE PROPERTY WITH DEFENDANTS NOS. 3 TO 8, AS THE ADVERSE POSSESSION OF DEFENDANT NO. 3 HAD BEEN INTERRUPTED IN 1928 WHEN HE TOOK A MORTGAGE FROM DEFENDANT NO. 2.
Fact of the Case:

THE PLAINTIFFS FILED A SUIT FOR POSSESSION OF THE PROPERTY IN SUIT, WHICH THEY HAD PURCHASED FROM DEFENDANT NO. 1 IN 1945. DEFENDANT NO. 1 HAD OBTAINED A DECREE FOR POSSESSION OF THE LANDS IN SUIT AS AGAINST DEFENDANT NO. 2 IN 1932. IN 1940, DEFENDANT NO. 1 MADE AN APPLICATION FOR EXECUTION OF THIS DECREE JOINING AS PARTIES TO THE EXECUTION APPLICATION DEFENDANT NO. 3 AND HIS SONS DEFENDANTS NOS. 4 AND 5 UPON AN ALLEGATION THAT IN THE YEAR 1928 DEFENDANT NO. 3 APPEARED TO HAVE TAKEN A THEV PATRA FROM DEFENDANT NO. 2. THE PLAINTIFFS TENDERED A CERTIFIED COPY OF THE THEV PATRA IN EVIDENCE, BUT THE LEARNED TRIAL JUDGE HELD THAT THE DOCUMENT WAS NOT PROPERLY ATTESTED AND REFUSED TO ADMIT IT INTO EVIDENCE. HE ALSO FOUND THAT DEFENDANT NO. 3 HAD BECOME OWNER OF THE LAND IN SUIT BY ADVERSE POSSESSION FOR MORE THAN 12 YEARS.
Finding of the Court:

THE COURT HELD THAT THE LEARNED TRIAL JUDGE WAS IN ERROR IN HOLDING THAT THE PLAINTIFFS HAD FAILED TO PROVE THAT THE DOCUMENT WAS ATTESTED AS REQUIRED BY LAW. THE COURT FURTHER HELD THAT THE PLAINTIFFS WERE ENTITLED TO RELY UPON THE JUDGMENT IN THE SUIT WHICH DEFENDANT NO. 1 HAD FILED AGAINST DEFENDANT NO. 2 AND IN WHICH DEFENDANT NO. 1 PROVED HIS TITLE AS AGAINST DEFENDANT NO. 2. THE COURT ALSO HELD THAT THE ADVERSE POSSESSION OF DEFENDANT NO. 3 HAD BEEN INTERRUPTED IN 1928 WHEN HE TOOK A MORTGAGE FROM DEFENDANT NO. 2.
Issues: 1. WHETHER THE PLAINTIFFS HAD FAILED TO PROVE THAT THE DOCUMENT WAS ATTESTED AS REQUIRED BY LAW? 2. WHETHER THE PLAINTIFFS WERE ENTITLED TO RELY UPON THE JUDGMENT IN THE SUIT WHICH DEFENDANT NO. 1 HAD FILED AGAINST DEFENDANT NO. 2 AND IN WHICH DEFENDANT NO. 1 PROVED HIS TITLE AS AGAINST DEFENDANT NO. 2? 3. WHETHER THE ADVERSE POSSESSION OF DEFENDANT NO. 3 HAD BEEN INTERRUPTED IN 1928 WHEN HE TOOK A MORTGAGE FROM DEFENDANT NO. 2?
Ratio Decidendi: 1. THE COURT RELIED ON SECTION 89 OF THE EVIDENCE ACT, WHICH PRESUMES THAT A DOCUMENT IS NOT ONLY EXECUTED BUT ALSO ATTESTED AS REQUIRED BY LAW, UNLESS THE CONTRARY IS PROVED. THE COURT HELD THAT THE DEFENDANTS HAD FAILED TO REBUT THIS PRESUMPTION. 2. THE COURT HELD THAT THE JUDGMENT IN THE SUIT WHICH DEFENDANT NO. 1 HAD FILED AGAINST DEFENDANT NO. 2 WAS EVIDENCE UNDER SECTION 13 OF THE EVIDENCE ACT OF THE TITLE OF DEFENDANT NO. 1. 3. THE COURT HELD THAT THE ADVERSE POSSESSION OF DEFENDANT NO. 3 HAD BEEN INTERRUPTED IN 1928 WHEN HE TOOK A MORTGAGE FROM DEFENDANT NO. 2, AS ANY POSSESSION BY DEFENDANT NO. 3 AFTER 1928 BEING DERIVATIVE COULD NOT RANK AS ADVERSE POSSESSION.
Final Decision: THE PLAINTIFFS WERE ENTITLED TO A DECREE FOR JOINT POSSESSION OF THE PROPERTY WITH DEFENDANTS NOS. 3 TO 8. DEFENDANTS 4 TO 8 WILL PAY THE PLAINTIFFS COSTS THROUGHOUT.

JUDGMENT

1. This is an appeal arising from a suit which has been filed by the plaintiffs who had purchased the property for defendant No. 1 on 6-9-1945. It appears that prior to the plaintiffs purchase there was litigation between defendant No. 1 and defendant No. 2 with regard to the property in suit, and defendant No. 1 obtained a decree for possession of the lands in suit as against defendant No. 2 in the year 1932.

In the year 1940 defendant No. 1 made an application for execution of this decree joining as parties to the execution application defendant No. 3 and his sons defendants Nos. 4 and 5 also upon an allegation that in the year 1928 defendant No. 3 appeared to have taken a Thev Patra from defendant No. 2. Notices of the application for execution were served upon defendants Nos. 3 to 5; but they took no notice whatsoever of the application for execution. It was then held that the Thev Patra which had been taken by defendant No. 3 had to take subject to the result of the suit which had been filed by defendant No. 1 against defendants No. 2, because the doctrine of lis pendens applied. Possession was consequently given to defendant No. 1 on 2-6-1942. The plaintiffs purchase was subsequent to that.

2. The plaintiffs filed the suit from which the present appeal arises not against defendants Nos. 1 to 5 but also against the other descendants of defendant No. 3 so as to leave no defect of parties to the suit. Defendant No. 1 remained ex parte. Defendant No. 2 claimed that the lands belonged to him; that the decree in the suit filed by defendant No. 1 was obtained by fraud; that the sale deed taken by the plaintiffs was bogus; that defendant No. 2s sons should be brought on the record, and that defendant No. 1 had not come into possession on 2-6-1942.

Defendant No. 3 died pending the suit, and the principal contention of his descendants, that is, defendants Nos. 4 to 8 was that the decision in the darkhast of 1940 was not binding upon them, especially as defendants Nos. 6 to 8 were not parties to the darkhast. They also denied that there was any Thev patra and claimed that they had become owners of the land in suit by adverse possession. Pending the suit the plaintiffs gave notice to defendant No. 3 to produce the Thev patra, but defendant No. 3 did not produce it. Thereupon the plaintiffs tendered a certified copy of the Thev Patra in evidence.

In order to prove it, he examined one of the attesting witnesses, but he failed to prove that the document was attested. Thereupon the learned trial Judge held that the document was in the first instance not proved to have been executed. He therefore declined to admit the document into evidence. In the second instance, he came to the conclusion that the document was a bogus document obtained by defendant No. 3.

Then finding that defendant No. 3 was in possession since at any rate from 1920, he said that defendant No. 3 had become owner of the land in suit by adverse possession for more than 12 years. This adverse possession had ripened into title by 1932. Consequently any possession which defendant No. 1 obtained in execution of his decree in the year 1942 was of no use to defendant No. 1 or to the plaintiffs.

3. The plaintiffs have come in appeal, and It appears to me in the first instance that the learned trial Judge was in error in holding that the plaintiffs had failed to prove that the document was attested as required by law. It has been contended on behalf of the plaintiffs that in the first instance the document is not a mortgage and consequently it was not necessary that the document should have been attested. But this contention does not seem to be correct. The document obviously is not a lease, for the reason that the executant, namely, defendant No. 2 says, that he had obtained the amount of the document, namely, Rs. 1000 upon his land.

In the second instance, even though there 13 a period of 10 years mentioned in the document for which defendant No. 3 was to pay what i9 called

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