( 1 ) THIS is a defendants appeal in a suit brought under Section 60 of the Transfer of Property Act for redemption of a mortgage dated 14-11-1895.

( 2 ) IT was averred that a mortgage was created by Netra Singh and Mst. Dulari in favour of Hans ram Singh and Hulam Singh for a consideration of Rs. 500/ -. It was a mortgage with possession. Plaintiff Ghanshyam Singh claiming to be an adopted son of Netra Singh brought the suit which has given rise to this appeal on the allegation that the mortgage money had been paid off from the usufruct of the property mortgaged and that he was entitled to redemption without payment of any money. The defendants were the representatives in interest of the original mortgagees. They denied that ghanshyam Singh was the adopted son of Netra Singh and pleaded that the mortgaged property consisted of ex-proprietary tenancy and occupancy tenancy lands; that a mortgage of such land was void in law; that the defendants were in possession as proprietors and not as mortgagees. They further urged that the mortgage money had not been paid out of the usufruct of the mortgaged property.

( 3 ) IT appears that previous to the institution of the present suit the mortgagors had filed an application under Section 12 of the Agriculturists Relief Act for redemption. That was dismissed, as one of the mortgagors was found not to be an agriculturist. On the pleadings set out above, the trial court held on the evidence before it, that the plaintiff was proved to be the adopted son of Netra Singh; that the property mortgaged being ex-proprietary tenancy and occupancy tenancy lands the mort gage was void in law. It further held that the mortgage money had not been paid up out of the usufruct of the mortgaged property. It held, however, that, in the circumstances of the case, equities should be adjusted between the parties and possession of the defendants being permissive, no question of limitation could arise. It held the plaintiffs entitled to redemption of the mortgage on payment of the mortgage money of Rs. 500/ -. It passed a preliminary decree for redemption. It is stated that the mortgage money was deposited by the mortgagor and possession has been obtained by him.

( 4 ) DISSATISFIED with this decision the defendants appealed. The finding of the trial Court that the plaintiff was the adopted son of Netra Singh was confirmed on appeal. The appellate court was further of opinion that the plaintiff was entitled to get possession of his property on payment of rs. 500/- and it dismissed the appeal. The present appeal was preferred by the defendants against this decision.

( 5 ) IT was contended by the learned counsel for the appellant that the mortgage being void no suit for redemption could lie. In case the plaintiff sought any further relief he should be asked to bring a suit in a proper form seeking such relief. I am clear that there is no substance in this contention. The principle laid down by a Full Bench of this Court in Mahabal Singh v. Ram Raj, 1950 All 604 (AIR V 37) (A) applies to this case. It was held in that case that in cases of void mortgages, which under the law could not be mortgages, the mortgagor is entitled to recover possession subject to payment of the money received from the mortgagees, and no question of limitation arises in the case. The possession of the mortgagee is permissive possession and the, only right he has is to be allowed to claim the money which the mortgagor had received from him. In this view of the matter the plaintiff is entitled to get back possession of his property.

( 6 ) IF instead of bringing a suit for possession, the mortgagor brought a suit for redemption there can be no good ground for refusing him the relief asked for, or strictly speaking the relief to which he is entitled. Under our law of procedure a party is entitled to state facts and to ask for, appropriate relief. It is always open to the court to grant the party entitled to a relief other than what he a