Bhandari, J.—This is a Civil Second Appeal in a suit for redemption. The main point involved is this appeal is whether the limited right of mortgagee can be acquired by adverse possession. There is an un-reported Division Bench case of this Court in Sarwan Lal vs. Gangadhar (Civil Second Appeal No. 220 of 1949), decided on the 12th October, 1955, is which in was held that such right can be acquired by adverse possession, but there is another Division Bench case of this Court in Hansia vs. Bakhtawar Mal (1), in which it has been held that such right cannot be acquired by adverse possession. When this appeal came up for hearing before one of us sitting as a single Judge, it was referred to a Division Bench, in view of the conflict of opinion between two Division Benches of this Court. Eventually, this special bench was constituted for deciding the appeal.

2. The facts giving rise to this appeal may be briefly stated thus. On 7th October 1949, the plaintiffs Laxmi Narain and Sitaram filed a suit for redemption of a shop situated in the town of Reengus, against Mangi Lal and Rameshwar defendants. The case of the plaintiffs in the trial court was that Godha, Lachhmi Narain, Bala Bux and Sita Ram mortgaged the above mentioned shop for Rs. 401/- with Jodh Raj and Jamna Lal on Pos Sudi 15, Sambat 1975, corresponding to the 16th January 1919, under an unregistered mortgage-deed (Ex. P. 1). Thereafter, Rs. 29/- were further borrowed by the mortgagor on Mah Badi 5, Sambat 1976, corresponding to the 10th January, 1920. A further sum of Rs. 100/- was borrowed on Jeth Badi 5, Sambat 1978, corresponding to the 27th May, 1921, and another document (Ex. P. 2), which was also unregistered, was executed stating that the mortgage amount due aggregated to Rs. 571/- and that the same shall be paid at the time of the redemption of the shop. In the plaint the dates of the mortgage are not given, but it is mentioned that the mortgages took place in Sambat 1978 and 1981. The plaintiffs further stated in the plaint that on the 2nd December 1947, the plaintiffs had filed an application after depositing Rs. 401/- in the Court of Munsif, Sikar, under sec. 83 of the Jaipur Transfer of Property Act for redemption of the shop but this application was dismissed on the 31st of January 1949.

3. The defendants contested the suit and pleaded that there was no mortgage in accordance with law, as there was no registered mortgage deed. It was also stated that the date of mortgage mentioned in the plaint was wrong. The defendants also pleaded that they had been in adverse possession from Sambat 1975 and the suit was time barred. It was also pleaded that the plaintiffs had no right to redeem the property as all the representatives of the original mortgagees had not been made parties and the suit was bad for non-joinder of parties.

4. Counsel for the parties were examined under O. 10, R. 1 C.P.C. and it was admitted by the counsel for the defendants that this disputed shop was mortgaged for Rs. 401/- on Pos Sudi Poonam, Sambat 1975 to his clients by an unregistered and unstamped document. He further stated that a sum of Rs. 299.3.9 had been spent on the repairs of the shop. The learned judge of the trial court dismissed the suit. He held that Ex. P. 2 was not attested as required by law. The suit was held to be time barred. It was also held that as the heirs of the other co-mortgagor were nor made parties, the suit suffered from the defect of non-joinder of necessary parties. On appeal by the plaintiffs to the District Judge, Sikar, it was held that the suit was rightly dismissed on the points of limitation and non-joinder of the necessary parties. The plaintiffs filed this second appeal in this Court.

5. Before we refer to the contentions raised by learned counsel for the parties, we may state that the parties conceded before us that under the relevant law prevalent in the former Jaipur State where the disputed shop was situated, the documents, Exhibits P. 1 and P. 2 being

Click Here to Read the rest of this document