The period of limitation for redemption starts from the expiration of the mortgage period, and adverse possession claim requires evidence.

1. Heard the learned senior counsel, Mr. Sukumar Sinha, appearing on behalf of the appellant and the learned counsel, Mr. Pandit Ji Pandey on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure.

2. The defendant appellant has filed this Second Appeal against the Judgment and Decree dated 15.09.2010 passed by the learned Additional District Judge, 1st Danapur Patna in Title Appeal No. 75 of 2005 whereby the learned lower appellate Court dismissed the appeal and confirmed the Judgment and Decree dated 23.07.2005 passed by the learned Munsif, Danapur, District Patna in Title Redemption Suit No. 35 of 2000.

3. The plaintiffs-respondents filed the aforesaid title suit for redemption of the usufructuary mortgage deed dated 24.07.1969 alleging that the father-in-law of the plaintiff No.1 executed the usufructuary mortgage deed dated 24.07.1969 in favour of Sheikh Md. Shaukat for a period of 5 years for Rs. 6500/- Subsequently, the mortgagee filed money suit No.7 of 1976 which was decreed ex-parte by terms of Judgment and ex-parte decree dated 30.04.1976 and pursuant to that Decree, the mortgagee filed execution case No.11 of 1976 wherein the mortgage property was auction sold in the name of Sheikh Md. Iliyas. When the plaintiff came to know about the said money suit No.7 of 1976, the plaintiff filed title suit No.143 of 1982 for declaration of the money suit decree and the execution proceeding as null and void and also for setting aside the Judgment and Decree. The said title suit No.143 of 1982 was decreed on 22nd August, 1986 and it was declared that the money decree passed in money suit No.7 of 1976 is null and void. Thereafter, the plaintiff approached the mortgagee for redemption and on refusal, the present suit was filed.

4. The defendant-appellant filed written statement alleging that in fact no possession was given to the mortgagee after execution and registration of the usufructuary mortgage deed dated 24.07.1969. The money suit filed by Shaukat Ali was decreed ex-parte when in spite of notice Ambika Prasad Singh did not appear to contest the suit. After the ex-parte decree, Shaukat Ali filed execution case and in that execution case, the property was sold by the Court and possession was also delivered to the present appellant. In title suit No.143 of 1982, the defendant did not file any written statement but in fact Ambika Prasad Singh got a fake written statement filed in the name of the defendant-appellant and the Judgment and Decree passed in the said title suit No.143 of 1982 is illegal, fraudulent and no notice was in fact served on the defendant. After purchase, the appellant remodeled the property investing Rs. 2 lakhs. The mortgage deed was executed on 24.07.1969 for a period of 5 years which expired on 23.07.1999, therefore, the plaintiff’s suit for redemption is barred by law of limitation.

5. The trial Court decreed the plaintiff’s suit recording a finding that the plaintiff’s suit is not barred by law of limitation and that the defendant-appellant had not acquired title by adverse possession. The defendant-appellant thereafter filed title appeal. The lower appellate Court confirmed the findings of the trial Court and dismissed the title appeal.

6. The learned senior counsel, Mr. Sukumar Sinha, appearing on behalf of the appellant raised three points. Firstly, the learned counsel submitted that the usufructuary mortgage is dated 24th July, 1969 and the suit has been filed in the year 2000, therefore, in view of Article 61 of the Limitation Act, the plaintiff’s suit itself is barred by law of limitation. According to the learned counsel, the limitation will start running from the date of execution of the mortgage deed. Secondly, the learned counsel submitted that the auction sale in favour of the defendant-appellant could not have been set aside without recourse to the provision as contained in Order 21 Rule 92 CP.C. Even if the Decree passed in money suit No.7 of 1976 was held to