IMPORTANT POINT
When person gets into possession of property as mortgagee, he cannot by unilateral act or declaration of his prescribe for title by adverse possession against mortgagor, because in law his possession is that of mortgagor.

Raghubir Dash, J.—This Second Appeal is against the judgment and decree dated 2.12.1995 and 16.12.1995, respectively, passed by the learned District Judge, Dhenkanal-Angul, Dhenkanal in Title Appeal No.52 of 1991 reversing the judgment and decree dated 4.10.1991 and 4.11.1991 passed by the learned Subordinate Judge, Talcher (now Civil Judge (Senior Division) in T.M.S. No.6 of 1986.

2. The plaint averment in brief is that one Mithan Bibi died in 1957 leaving her brother Fatula Khan as her sole survivor to succeed to all her properties. Her sister Najo had predeceased her. Fatula Khan died in 1970. He had three sons, namely, Gafur Khan (Plaintiff), Majid Khan (D.8) and late Md. Khan. Since Md. Khan predeceased Fatula leaving behind two daughters D.10 and D.11, they fail to get any share. Md. Khan had another daughter Tairun but she had died during life time of Md. Khan. So, Sk. Nizamuddin and Sk. Riazuddin (D.12 and D.13) who claim to be sons of Tairun do not get any share in the property.

Said Mithan Bibi was the original owner of the suit property. She mortgaged it to one Gouranga Moharana on 27.12.1924 subject to condition that if the same be not redeemed within twelve years, the mortgagee would become absolute owner of the mortgaged property. After death of Gouranga, his widow Sushila Moharana executed different sale deeds, alienating portions of the suit land shown in Plaint Schedule B, C, D, E to D.5, 6, 7 and 9, respectively. After such sale transactions, the suit has been filed by said Gafur Khan challenging the sale transactions contending that since the suit land was mortgaged to Gouranga, neither the mortgagee nor his wife did acquire title in the suit land and, for that matter, his widow had no right to sell the same to D.5 to D.9. So, the plaintiff filed the suit for recovery of possession of the suit land from D.1 to 4 who are the legal heirs of late Gouranga and his widow Sushila with a prayer to direct them to retransfer Schedule ‘A’ property in favour of Plaintiff and D.8 free from all encumbrances. The Plaintiff further claims that the Orissa Money Lenders Act amended in 1975 entitles the Plaintiff and D.8 to get back the property.

D.5 and D.6, sons of Sushila, in their joint written statement assert, inter alia, that their vendor Sushila had acquired title in the suit property and had full right to alienate the same; that they have acquired title over their purchased land out of suit land and even otherwise also they have acquired title by way of adverse possession. D.7 and D.9, the other two purchasers from Sushila, have filed separate written statement taking a stand which is similar to that of D.5 and D.6.

D.10 and D.11 in their joint written statement have contended that they themselves and D.12 and D.13 have equal right over the suit land as heirs of Mithan Bibi. According to them, Mithan and Fatula did not die in 1957 and 1970, respectively, and Md. Khan did not predecease his father Fatula. Their specific case is that Fatula died in 1954, Mithan died in 1957 and Md. Khan died in 1974. Md. Khan died leaving behind three daughters D.10, D.11 and late Tairun Bibi, who is mother of D.12 and D.13. These facts are admitted by the Plaintiff in his plaint in another suit bearing T.S. No.3/79 in the Court of Additional Munsif, Talcher. According to these defendants Fatula having predeceased Mithan, the former could not inherit the latter’s property. Thus, these defendants assert that the Plaintiff cannot claim right, title and interest over the suit land. According to them D.6 has valid title over the property he has purchased.

D.12 and D.13 in their joint written statement take a stand which is similar to that of D.10 and D.11. That apart, they also plead that D.5 and D.6 have perfected their title over their purchase land by way of adverse possession.

Here it may be mentioned that the mortgage was a possessory mortgage subject to condition stipulated in the mortgage deed that the mortgagor can redeem t