Adverse possession against a mortgagee starts when the tenant abandons the idea of holding as a tenant and sets up and asserts an exclusive right in himself.

A.N.Bhandari, J.

1. This appeal under Clause 10 of the Letters Patent raises the question whether the possession of the appellant has ripened into ownership by efflux of time.

2. It appears that Chetu and Telu, who were co-owners in a certain plot of land situate in the erstwhile State of Patiala mortgaged the property with one Raja Ram for a sum of Rs. 433/8/ . On the 4th Baisakh 1977 Bk. Daulat Ram and Narain Das sons of Raja Ram mortgagee sold their mortgagee rights to Chhaju, father of Ram Chand defendant No. 2. On the 7th Chet 1982 Bk. Chetu created a further mortgage in favour of Benarsi Das and others defendant No. 3. It appears that in the year 1987 Bk. one Harnama, father of Ram Lal and others, hereinafter referred to as the defendants entered upon the land as a tenant of Ram Chand. On the death of Telu, Chetu acquired the proprietary rights which had vested in his co-owner and in the year 2002, he paid off both the first and the second mortgagees and redeemed the mortgages. He endeavoured to obtain possession of the property but having failed to achieve his object he brought the suit for possession out of which this appeal has arisen. The mortgagees, defendants Nos. 2 and 3, accepted the plaintiffs claim but the defendants who were in actual physical possession of the land resisted the suit. They stated that they had been in actual physical possession of the property for a period exceeding 25 years and that the adverse possession of the land maintained for the statutory period had vested them with title thereto.

3. The trial Court held that the defendant had acquired title by adverse possession against the mortgagees and not against the mortgagor who was out of possession, that by holding the land adversely to the mortgagees for the statutory period the defendant had acquired the mortgagee rights, that the mortgagor had no power to be put in possession of the property without getting the property redeemed from him and that the plaintiff having failed to prove the date of the original mortgage the suit was barred by time. In this view of the case the trial Court dismissed the plaintiffs suit. The lower appellate Court upheld the finding of the trial Court that the defendants possession was adverse to the mortgages but was unable to endorse the view that the mortgagee was not at liberty to obtain possession of the property even by paying the mortgage money to the defendant. He accordingly allowed the appeal and decreed the plaintiffs suit.

4. The learned Single Judge before whom the second appeal was put up for consideration came to the conclusion that Harnama, father of defendant No. 1 entered upon the land as a tenant of Ram Chand mortgagee in the year 1987, that he continued paying rent to his landlord till the year 1992, that he denied his liability to pay rent in or about 1993 and that the mortgagor brought the suit out of which the appeal has arisen in the year 2003. In view of these facts the learned Judge expressed the view as Harnamas possession was permissive to start with and as he did not set up an exclusive title in himself till the year 1993 his adverse possession had not ripened into title in the year 300 1 and he did not acquire the mortgagee rights of his landlord Ram Chand.

5. Adverse possession, as the words imply, must be actual possession of anothers land with intention to hold it and claim it as his own. It must commence with the wrongful dispossession of the rightful owner at some particular time; it must commence in wrong and must be maintained against right. It must be actual, open, notorious, hostile, under claim of right, continuous and exclusive and maintained for the statutory period. Indeed it should be so open and exclusive as to leave no doubt as to the intention of the occupant, so notorious that the owner may be presumed to have knowledge of the adverse claim and so continuous as to furnish a cause of action every day during the required period.

6. If possession is permissive a