JUDGMENT

Srivastava, J - This is a defendant's appeal against the judgment and decree, dated 30th September 1931, of the Subordinate Judge of Sultanpur, reversing the judgment and decree, dated 22nd August 1930 of the Munsif of Amethi at Sultanpur. It arises out of a suit for redemption of a mortgage. The plaintiff's case as set up in his amended plaint was that on 14th May 1878 Sheoparshan Singh, grandfather of defendants 2 to 5, executed a usufructuary mortgage-deed in favour of Ganesh Singh, grandfather of defendant 1, in three plots, Nos. 1256, 1504 and 1505, for Rs. 50, that the mortgagee under cover of this mortgage took possession of two other plots, Nos. 1224 and 1225, along with the mortgaged plots and obtained mutation in respect of the five plots on the basis of the aforesaid mortgage-deed. It was further alleged that the mortgagee had acquired mortgagee rights in respect of plots Nos. 1224 and 1225 also, under the mortgage deed, dated 14th May 1878, by prescription. It was also stated that the mortgagee was no longer in possession of plots Nos. 1256, 1504 and 1505. The plaintiff, who claimed to be a lessee of the mortgagor therefore sued for a decree for redemption in respect of the two plots, Nos. 1224 and 1225, which were said to be still in possession of defendant 1 as representative of the mortgagee under the mortgage-deed dated 14th May 1878. Defendant 1 contested the suit inter alia on the ground that the mortgage-deed dated 14th May 1878 had been redeemed long ago and that he was in possession of the two plots in suit as owner. The trial Court upheld the defendant's plea and dismissed the suit. On appeal the learned Additional Subordinate Judge, after remanding the case for a finding on certain issues remitted to the lower Court, came to the conclusion -that the mortgage dated 14th May 1878 had been redeemed more than 12 years before the institution of the present suit. He however was of opinion that the redemption of the mortgage-deed dated 14th May 1878 did not affect the plaintiffs right to redeem the plots in dispute in the present suit.

2. He accordingly allowed the appeal, set aside the decree of the lower Court and gave the plaintiff a decree for redemption of the two plots in dispute on payment of the sum of Rs. 50, the principal money secured under the mortgage-deed dated 14th May 1878. Defendant 1 has come to this Court in second appeal. It is contended on his behalf that assuming the plaintiff's case, about the plots in dispute having become part of the property mortgaged under the deed dated 14th May 1878 and the defendant-appellant having acquired the position of a mortgagee under that deed in respect of these plots also, to be correct, the present suit for redemption could not lie and the defendant-appellant must be deemed to have acquired full title as an absolute owner by adverse possession of the plots in dispute for over 12 years after the redemption of the mortgage. In my opinion this last contention is correct and must succeed. The learned Counsel for the plaintiff-respondent has admitted before me that the mortgage-deed dated 14th May 1878 was paid up more than 12 years ago. The evidence on the record shows definitely that the mortgage money was paid by Sheoparshan Singh, the original mortgagor, to defendant 1 about 24 or 25 years ago, that the fact of payment was endorsed by defendant 1 at the back of the mortgage-deed and the mortgage-deed was returned. The question whether possession of a mortgagee after the mortgage debt has been satisfied is adverse to the mortgagor or not is always a question of animus or intention: vide Keshab Lall v. Bhola Nath, AIR1930Cal402 . The fact that the mortgage money was paid by Sheoparshan Singh, that the endorsement of payment and redemption of the mortgage was made at the back of the mortgage-deed, and that the mortgage deed was returned to the mortgagor, Sheoparshan Singh, leaves little doubt that the intention of the parties was to put an end to th