A mortgagee 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. However, where both the mortgagor and the mortgagee agree by a consensual act 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.

Raj Kishore Prasad, J.

1. This is plaintiffs appeal from the concurrent decisions of the courts below dismissing their suit for redemption on the ground that the defendants first party had acquired title by adverse possession, and, therefore, the right of redemption had been extinguished, and, as such, the plaintiffs vendors had no title left in the disputed lands to convey to the plaintiffs by the sale in their favour (2) The main question, therefore, for determination is: Has the right of redemption been extinguished. In order to appreciate and understand in what circumstances the question of adverse possession arises, and how the plaintiffs or their vendors, right of redemption has been lost, it is necessary to state some facts in brief.

2. The disputed land was the occupancy holding of defendants second party, defendants 3 to 8, and their ancestor. On 19th May, 1914, they executed a usufructuary mortgage for Rs. 650.00 in respect of the disputed land in favour of Darbari Singh, the ancestor of defendants first party, defendants 1 and 2, who came in possession of the ijara land.

The defendants second party, who will hereafter be referred to as mortgagors, thereafter sold the ijara land to the original Plaintiff Kitar Singh under a registered sale deed dated 23rd May, 1945. Kitar Singh having died, his sons, on refusal of defendants first party, who will hereafter be referred to as mortgagees, to accept the ijara money, or, to deliver possession of the disputed land to the plaintiffs, brought the suit, out of which the present appeal arises, for redemption.

3. The suit was contested by the mortgagees. Their case was that the ijara deed of 1914 was really a sale deed, but they got an ijara deed executed because there was no custom of transferability of occupancy holding in the village without the consent of the landlord. The landlord brought a rent suit against the mortgagors and the mortgagees, that is, all the defendants of the present suit.

On 17th August, 1921, the suit was compromised, and, in the compromise petition, the position of these mortgagees as kebaladars was admitted by the mortgagors. Since then the mortgagees asserted that they have been coming in possession over the disputed land as purchasers on payment of rent to the landlord, and as such, they had acquired title by adverse possession against the mortgagors, and, therefore, the plaintiffs acquired no title by their purchase of the disputed lands from the mortgagors.

4. The court of appeal below in agreement with the learned Munsif, found that the compromise petition of 1921 was a genuine document, and, as the mortgagees have been in adyerse possession of the disputed land since the date of compromise for more than twelve years, they had acquired indefeasible title by adverse possession, and, in such circumstances, the plaintiffs by their purchase on 23rd May, 1945, acquired no title to the disputed land, and, therefore, they were not entitled to maintain the suit for redemption. On these findings, the judgment and decree of the first court dismissing the plaintiffs suit were affirmed.

5. Against the, above decision, the plaintiffs have preferred the present second appeal, which has been referred to a Division Bench by Banerji, J., for decision.

6. Mr. Lal Narayan Sinha, appearing for the plaintiffs-appellants, put forward the following objections to the decree appealed from: ,

1. The Ijara deed of 1914 created a relationship of mortgagor and mortgagee and not of vendor and vendee, and, as such, the right of redemption remained intact with the mortgagor;

2. The admission, contained in the compromise petition of 1921, that the document of 1914 was a sale deed is an admission about the interpretation of the document of 1914, but it cannot control the plain interpretation of the deed of 1914;

3. If the compromise of 1921 amounts to a transfer, or a release, of the mortgagors right of redemption, it must be registered under Sec.17 (1) (b) of the Indian