The possession of a person under an invalid mortgage is not adverse to the absolute title of the owner, and the owner can recover possession by redemption of the limited interest acquired by adverse possession.

Judgement

JAGANNADHADAS, J. :- Plaintiffs are the appellants in this second appeal. It arises out of a suit for recovery of possession of certain lands which has been dismissed by both the Courts below.

2. The suit lands admittedly belonged to the plaintiffs family. The case of the plaintiffs as set out in the plaint is that the father of plaintiffs 2, 3 and 4 allowed defendant 2, some years ago to occupy the suit-lands by some arrangement with her and that defendant 2 has allowed her son, defendant 1, to cultivate the lands since she is unable to take care of herself; that they are not aware of the arrangement under which the defendants were let into possession, but that if it is found that the lands are charged with any sum, they are willing to pay up the same. The case of the defendants is that between the years 1927 and 1930, the father of plaintiffs 2 to 4 borrowed from time to time various sums of money aggregating to Rupees 1061-12-0 from defendant 2 on the security of the suit-lands; that the plaintiffs are fully aware of the said mortgages and of the possession of the defendants for over 12 years. They further allege that all the mortgages were invalid and inoperative in law and that plaintiffs 2 to 4 and their father not having recovered possession of the lands within is years, have lost their right to them that the defendants have acquired perfect title by adverse possession and that the plaintiffs not having any subsisting title to the suit-property are not entitled to recover possession thereof.

3. Both the Courts below have given effect to this plea of adverse possession by the defendants and the consequent extinction of title of the plaintiffs and have dismissed the plaintiffs suit. The only question therefore that arises in the case is whether the Courts below are right in their view that as a result of adverse possession of the defendants, the plaintiffs original admitted title to the suit lands has become extinguished.

4. Exhibits 2 to 2-E are the mortgage-bonds under which the suit-property purported to be mortgaged. Out of them Ex. 2-E was a usufructuary mortgage, while Exs. 2 to 2-D are anomalous mortgages, whereby it was stipulated that if the mortgage amounts were not paid up within the stipulated period, the defendant was entitled to enter into possession as a usufructuary mortgagee. All these documents are unregistered and therefore not valid as such to create any mortgage interest. The view taken by the Courts below relying on the case in Bhukhan Mian v. Radhika Kumari Debi, AIR (25) 1938 Pat. 479 : (176 I. C. 35), is that since the mortgages are invalid for want of registration, the possession of the defendants was from its inception adverse and that since admittedly the defendants have been in possession for over 12 years, the plaintiffs have lost title by virtue of the adverse possession of the defendants for over the statutory period.

5. One fact, essential for the further discussion, may be cleared at the outset. Bosh the Courts below seem to have been under the impression that there has been no delivery of possession to the defendants under the mortgages. They have said so in connection with the argument advanced before them on behalf of the plaintiffs that since the usufructuary mortgage, EX- 2 E is for a sum less then Rs. 100, it was valid, inasmuch as there has been delivery of possession, though there has been no registration. Whether or not the Courts below were right in their finding that there has been no delivery of possession by the plaintiffs to the defendants under the mortgage-documents, there can be no doubt that the defendants entered into possession as mortgagees - presumably under the terms of the mortgages, Exs. 2 to 2-E. That is clear from the pleadings themselves. The plaint in para. 3 states as follows :

"Father of plaintiffs 2, 3 and 4 allowed defendant 1 a few years ago to occupy Sch. (A) lands by some arrangement with her and it has now transpired that defendant 1 has allowed de