1. This is a defendants second appeal in a suit for possession of 8 Kanals and 7 Marlas of land in Khata No. 19 situate in village Goda Chabilia, Tehsil Jammu.

2. The plaintiff brought the present suit for possession and in the alternative for redemption on the ground that the land in question had been mortgaged by the plaintiff to the defendant on 17th Chet, 2005 (B), for a sum of Rs. 200. Since the mortgage was an unregistered one, the plaintiff prayed for possession of the property or in the alternative for redemption of the mortgage on payment of a sum of Rs. 200. The plaintiff alleged that he had served a notice on the defendant to redeem the land and hand over possession to him, but in reply to this notice the defendant denied the subsistence of the mortgage and pleaded that the mortgage was superseded by an oral sale and the mortgagee had acquired title by adverse possession. Hence the plaintiff prayed for a decree for possession.

3. The suit was resisted by the defendant on the ground that soon after the mortgage was executed, there was an oral sale between the parties by which the land mortgaged to the defendant was sold to him for a sum of Rs. 550. According to the defendant this sale took place on 1st Jeth, 2007 and ever-since then he was in possession of the property and even if the sale was invalid, he had acquired title by adverse possession. The trial court decreed the suit on payment of Rs. 450, but the District Judge on appeal held that the oral sale was proved and he therefore dismissed the suit. There was a second appeal to this court which was heard by one of us (Bhat J.) who remanded the suit for framing additional issues. The learned Judge, however, held that the factum of the oral sale was proved beyond any doubt and he accordingly closed this part of the case. When the case went back on remand, the trial court of the Sub-Registrar Munsiff dismissed the suit on 31-8-1965, but on appeal the District Judge accepted the appeal and decreed the plaintiffs suit, holding that since the oral sale was invalid and hit by S. 138 of the T. P. Act and the defendant was a mortgagee, he could not acquire title by adverse possession. Hence, this second appeal before us.

4. The learned counsel appearing for the appellant submitted before us that in view of the admitted findings of the District Judge that the oral sale was invalid the defendant started prescribing from the date of the sale, namely 1st Jeth 2007 and had acquired title by prescription. The learned counsel relied upon several authorities in AIR 1963 SC 70, AIR 1967 SC 978 and AIR 1962 Patna 198. It was submitted before us that even though the sale was invalid, the character of possession of the defendant as a mortgagee was converted into that of a trespasser and ripened into title by adverse possession after the expiry of 12 years from the date of the sale. It was pointed out that in similar circumstances the Supreme Court in AIR 1963 SC 70 (Supra) had held that the mortgagee had acquired title by adverse possession. In this connection reliance was placed on the following observations of the Supreme Court: -

"It is not disputed that when a person gets into possession of properties as mortgagee, he cannot by any unilateral act or declaration of his prescribe for a title by adverse possession against the mortgagor, because in law his possession is that of the mortgagor. But what is contended is that if the mortgagor and mortgagee subsequently enter into a transaction under which the mortgagee is to hold the properties thereafter not as a mortgagee but as owner that would be sufficient to start adverse possession against the mortgagor if the transaction is for any reason in operative under the law. This contention, in our opinion, is well founded. Though there was at one time a body of judicial opinion that when a person enters into possession as a mortgagee he cannot under any circumstances acquire a title by prescription against the owner, the law is now fairl

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