JUDGMENT

Wazir Hasan, A J C - This is the plaintiffs' appeal in a suit for possession of certain plots of land which together constitute a grove. The relief to possession is prayed by way of redemption of a mortgage which the plaintiffs' predecessor-in-interest made in favour of the defendant's ancestor in the year 1887. The defence to the suit was that three years after the alleged mortgage the mortgaged property was sold by the mortgagor to the mortgagee in full satisfaction of the mortgage-debt. This defence has succeeded in both the lower Courts with the result that the suit for redemption has been dismissed.

2. The necessary facts are that on the 29th April 1887 a mortgage of the property in suit, simple in its nature, was made by the plaintiffs' predecessor-in-interest in favour of the defendants ancestor for a sum of Rs. 300. It is common ground that for a year or so the interest payable on the mortgage was paid by the mortgagor. It is also agreed that subsequently the mortgagor failed to pay the accruing interest and it is also common ground that on account of failure of the payment of interest the mortgagee was put in possession of his mortgaged property. The plaintiffs' case as set forth in the pleadings is that possession was delivered in lieu of interest thereby converting the simple mortgage into a usufructuary one. The plea in defence was that the possession was delivered by virtue of a sale in satisfaction of the mortgage-debt. Both the Courts below are agreed that the plaintiffs have failed to establish their case as to the nature of the defendant's possession and they are also agreed that the defendant's plea as to the sale has been established.

3. The only ground on which this finding of fact could be challenged was that the sale not being evidenced by a registered instrument was invalid. That may be so but the sale having taken place as a matter of fact as is found by the Courts below it certainly gives a starting point for adverse possession in the character of a purchaser. This is the view of law which was taken in the case of Bashir Husain v. Chandrapal Singh #18;A.I.R. 1922 Oudh 133, With that view I agree. Both the Courts below have found that since the date of the invalid sale the defendant has been exercising proprietary possession over the property in suit and that finding holds good once the fact of the sale is established.

4. The result is that the appeal fails and is dismissed with costs.