Where a person obtains possession under an invalid mortgage and there is nothing to show that at any time he has asserted possession under any claim of absolute right, he acquired on the lapse of 12 years a prescriptive right to the limited interest of a mortgagee. But where the person in possession claims absolute right, his possession becomes adverse and by such possession for twelve years the plaintiffs' right to such property is extinguished.

S. BARMAN, J.

( 1 ) DEFENDANTS are the appellants. On November 23, 1960, the plaintiffs fifed the suit for redemption and possession of the suit land under an oral mortgage of July 9, 1939. The defence in the suit js that plaintiff No. 1 as Karta of the plaintiffs family and as guardian of the minor plaintiffs settled the suit lands with deft. No. 1 for Rs. 13/- and 4 Khandis of paddy as consideration for the settlement and executed a rayati patta on July 9, 1939 and put defendant No. 1 in possession of the same. The defendant also pleaded that they perfected title by adverse possession and the suit is barred by limitation.

( 2 ) THE trial Court dismissed the plaintiff's suit on the finding that the suit was barred by limitation and that the defendants acquired title by adverse possession. The trial Court also found that the suit land was settled with defendant No. 1 as aforesaid. In appeal, the learned lower appellate Court reversed the decision of the trial Court and decreed the suit in favour of the plaintiffs on the finding that the suit is not barred by limitation; that possession of the mortgagee was permissive and not adverse. The learned lower appellate Court disbelieved the story of settlement of the suit land with the defendants as alleged. He found that the oral mortgage had been proved. Hence this Second Appeal.

( 3 ) THE undisputed position in law is that possession of persons having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land, not being referable to any legal title is prima facie adverse to legal title "of the owners of the land from the very moment such persons took possession of the land under the invalid grant. The possession of such ah alienee must be deemed to be adverse from that date and it must continue to be adverse.

( 4 ) IN the present case, in view of the finding that the oral mortgage was not valid by reason of the provisions of Section 22 (b) of the Sonepur Bhumi Bidhi which requires a written deed of conveyance and other formalities as provided therein, the defendants' possession must be adverse. On this point the learned lower appellate Court's finding was this:

"if the mortgage was created orally in contravention of law (referring to section 22 (b) of the Sonepur Bhumi Bidhi), it is void mortgage and so the defendants

entering into possession on such mortgage would hold it as permissive possession till they prescribe their title. After 12 years of the mortgage he would prescribe the mortgagee's interest and not any superior title. Therefore in any view of the matter the plaintiffs having proved the mortgage are entitled to redeem it".

The question now is : When, on the facts of the present case, was the title of the plaintiffs as original owners extinguished after the defendants obtained possession under an invalid mortgage? Undoubtedly when a mortgagee gets possession under an invalid mortgage he acquires by prescription the limited interest of a mortgagee, on the expiry of the period of 12 years. It is also the settled view that where a person obtains possession under an invalid mortgage and there is nothing to show that at any time he has asserted possession under any claim of absolute right, he acquired on the lapse of 12 years a prescriptive right to the limited interest of a mortgagee.

( 5 ) THIS leads to the further question : Did the defendants ever claim absolute right in respect of the suit land? If so what is the effect of such assertion of absolute right? It appears from the written statement of the defendants that they claimed absolute right and not as mortgagees. The defendants' case is that a rayati patta was executed in favour of defdt. No. 1 on July 9, 1939 and that defendant No. 1 was put in possession of the suit land. The relevant portions of the defendants' written statement are these:

"2. . . . . . Plaintiff No. 1 as the manager or the Karta of the family. . . . . settled the suit lands with the defendant No