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PETITIONER: SMT. DILBOO (DEAD) BY LRS. & ORS.

       Vs.

RESPONDENT: SMT. DHANRAJI (DEAD) AND ORS.

DATE OF JUDGMENT:       12/09/2000

BENCH: V.N. KHARE J. & S.N. VARIAVA J.

JUDGMENT:

S. N. VARIAVA,J.

L...I...T.......T.......T.......T.......T.......T.......T..J

   This  Appeal is against an Order dated 13th July 1982 in a Second Appeal No.  2100 of 1973 wherein the High Court has proceeded to appreciate evidence and on questions, purely of fact,  overruled concurrent findings of facts by two  Courts below.   Cross  objections  have  been   filed  by  the  1st Respondent  against  directions in the impugned Judgment  to have ascertained, amongst others, the state of the different parts or portions of the suit property and improvements made therein  and  their value.  Briefly stated the facts are  as follows:   On  30th August 1902 Smt.  Lakshamania  widow  of Narayan  Sonar  mortgaged  two houses and  twenty  trees  in favour  of Ram Charan Sonar.  The mortgage was for a sum  of Rs.  499/-.  It is claimed by the Appellants that Ram Charan Sonar  and his brother Swaroop Sonar were already staying in the  suit  property  with  Narayan  Sonar.   The  said  Smt. Lakshamania  died on 3rd November, 1908.  One Smt.   Piyari, claiming  to  be  the nearest heir of the  husband  of  Smt. Laxmina, filed Suit No.  328 of 1908 and made a claim to the suit  property.  This Suit was dismissed on the ground  that Smt.   Piyari  was  not an heir of Shri Narayan or  of  Smt. Lakshamania.  One Shri Bharat Sonar, claiming to the heir of Smt.   Laxmina, filed Suit No.  17 of 1914 making a claim to the  suit  property.   This Suit was also dismissed  on  the ground  that  Shri  Bharat  Sonar was not an  heir  of  Smt. Laxmina.   In  this Suit Ram Charan Sonar and Swaroop  Sonar had  averred,  in  their written statement,  that  the  suit property  had  come  to  them under an  oral  Will  by  Shri Narayan.   Thus as far back as in 1914/1915 Ram Charan Sonar and  Swaroop Sonar set up a title adverse to the estate.  To be  remembered that Swaroop Sonar was not a mortgagee  under the  mortgage  deed  of 1902.  On 12th  September  1916  Ram Charan Sonar and Swaroop Sonar executed a mortgage in favour of  one Hanuman.  This mortgage was in respect of one of the houses  (which  for  sake  of   convenience  is  called  the ’southern house).  The mortgage was for a fixed period of 10 years.   Thus  the rights of the mortgagor to redeem  within the  period  of  10  years was  being  affected.   Also,  as indicated  above, Swaroop Sonar was not a mortgagee.  He had already claimed ownership of this property in suit No, 17 of 1914.   Now he was mortgaging as owner.  Thus an interest in excess  of the interest of the mortgagee was being  created. The  mortgagee Hanuman was put in possession of the southern

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house  as  a  mortgagee.  On 26th October, 1942  Ram  Charan Sonar  sold  a  part of the other house (which for  sake  of convenience  is called the northern house) to one Ram Charan Teli.   We  have  seen  the sale  deed.   Ram  Charan  Sonar described  the  northern  house as my  personal  property. Thus  Ram  Charan  Sonar sold not as a mortgagee but  as  an absolute  owner.   Thus again an interest in excess  of  the interest  of  a mortgagee was created.  Ram Charan Teli  was put  in  possession  of  the  house sold  to  him.   On  4th December,  1948  Appellant  No.  8 (who is the  son  of  Ram Charan Sonar) along with Appellant No.  9 (who is the son of Swaroop  Sonar)  sold  the  southern  house  to  Ramraj  and Lakshman.   The  Sale Deed was registered on  15th  January,     1949.  Ramraj and Lakshman were given a right to  redeem the mortgage from Hanuman.  This sale property.  was also on the  footing  that  the sellers were owners of the  On  20th December,  1954 Ram Charan Teli sold the house to Lakhan and Mahavir  Kandu.   They were put in possession of the  house. Ram  Raj  and  Laxman  filed Suit No.  85  of  1959  against Hanuman  for  redemption  of  the mortgage.   In  this  Suit objections   were  sought  to  be   taken  by  some  of  the predecessors  in  title  of the present Respondent  No.   1. That Suit was compromised and on the basis of the compromise a  decree  for redemption was passed against Hanuman and  in favour  of Ram Raj and Lakshman.  By two sale deeds dt.  1st March  1960  and 21st March 1960 Sita Ram,  Ganesh,  Bechni, Rajwanti, Bhoju and Bhuwel, claiming to be the heirs of Smt. Laxmina,  sold  their  equity  of   redemption  to  the  1st Respondent.   On  25th February 1963 two further sale  deeds confirming  the earlier two sale deeds were executed.  These were  got registered.  On 4th October 1960 i.e.  before  the registration of the subsequent sale deeds, Respondent No.  1 demanded  redemption of the mortgage executed as far back as on  30th August, 1902.  This was refused and, therefore, the 1st  Respondent filed the present Suit, i.e.  Suit No.  3 of 1961,  for  redemption  of  mortgage.    In  this  suit  1st Defendant  was  the  son  of  Ram  Charan  Sonar.   The  2nd Defendant  was  the grandson of Swaroop Sonar.   Ramraj  and Lakshman  were Defendants 4 and 5 respectively.  Lakhan  and Mahavir  Khandu  were  Defendants  5  and  6   respectively. Hanuman  was  made  Defendant  No.  7.   Sita  Ram,  Ganesh, Bechni,  Rajwanti, Bhoju and Bhuwel were Defendants 8 to  13 respectively.   We have seen the plaint.  The Suit is merely for  redemption  of mortgage.  In the suit, as  regards  the transfers,  it is averred as follows:  4.  That Ram  Charan Sonar,  mortgagee right in respect of part of the  mortgaged house given in Schedule Aa of the plaint to Ram Charan Teli. Thereafter  deceased  Ram Charan Teli transferred it to  the defendants  5  and 6 who have been in possession thereof  as transferees  from the mortgagee and the remaining portion of the house Schedule Aa of the plaint has been in possession of the defendants 1 and 2 as a mortgagees.

   5.   That  Ram  Charan Sonar had executed  a  fictitious mortgage  deed  in  favour of Hanuman, defendant No.   7  in respect  of  house  of  Schedule  Ba  of  the  plaint  and thereafter the defendants 1 and 2 transferred the said house in  favour  of  Ram Raj and Laxman, defendants 3 and  4  and their possession will be treated as of mortgagees.

   There is no averment that the sale deeds are not genuine and/or  not  binding.  No declaration, challenging the  Sale Deeds of 26th October, 1942 and 4th December, 1948, has been sought.   The  only  relief  claimed is  for  redemption  of mortgage.   At this stage it must be mentioned that in  para

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10  of  the plaint there is a reference to Suit No.   17  of 1914.    This  shows  that  Respondent   No.   1   and   her predecessors  in  title were aware of the pleadings in  that suit  and were thus aware that as far back as 1914/1915  Ram Charan  Sonar and his brother Swaroop Sonar had made a claim adverse  to the estate.  Seven written statements were filed by  the  various  sets  of Defendants.  A  large  number  of defences  were taken up.  For purposes of this Appeal we  do not  need  to reproduce or deal with all the defences.   The main defences were that the persons from whom 1st Respondent got title were not heirs of Lakshamania and that they had no right  to  transfer the equity of redemption.  It  was  also claimed  that the old houses had fallen down and Ram  Charan Sonar   and  Swaroop  Sonar  had,   to  knowledge  of   all, constructed  new houses on the land and were occupying those as owners.  It was claimed that Ram Charan Sonar and Swaroop Sonar  had  perfected title by adverse possession.   It  was further claimed that the suit was barred by limitation.  The transferee  Defendants also took up defence under Section 41 of  the Transfer of Property Act.  In an additional  written statement  filed by Defendants 1 to 4 it was also  contended that  on  the date the suit was filed the Plaintiff  had  no title  as  the earlier sale deeds were invalid and that  the subsequent  sale  deeds of 25th March 1963 did not cure  the defect.   This Suit was dismissed by the Trial Court on 20th March,  1967.  The Trial Court held, on proper  appreciation of  evidence,  that  it  had  not been  proved  by  the  1st Respondent  or on her behalf that her predecessors in  title were  heirs of Smt.  Lakshamania.  It was noted by the Trial Court that the predecessor in title were party defendants in the  Suit  and yet none had stepped into the witness box  in order  to  prove that they were the heirs.  The Trial  Court took  note  of the fact that some documents had been  relied upon  to prove the relationship.  The Trial Court  correctly held  that  no reliance could be placed on those  documents. The  Trial  Court noted that an admitted relative i.e.   one Smt.   Mantorani gave evidence and stated on oath that  some of  the predecessors in title of the 1st Respondent were not heirs  of Lakshamania.  The Trial Court, which was the  best judge of her testimony and demeanor, believed her testimony. The Trial Court held that the 1st Respondent had acquired no right,  title  or interest in the suit property and was  not entitled  to claim redemption.  The Trial Court also gave  a finding that the predecessors in title of the 1st Respondent had  full knowledge of the transactions of mortgage and sale by  Ram  Charan  Sonar and his brother Swaroop  Sonar.   The Trial  Court  noted that in the mortgage deed and  the  sale deed executed by the brothers and then by Defendants 1 and 2 they  had claimed themselves to be owners.  The Trial  Court noted that none of the admitted heirs of Lakshamania had, in spite of knowledge of such claims, made any protest or filed a  suit.   The Trial Court held that the suit was barred  by limitation.   The Trial Court also held that Ram Charan Teli as well as Ramraj and Lakshman were bona fide purchasers for value  without notice.  Being aggrieved by this Judgment 1st Respondent  filed Civil Appeal No.  149 of 1967.  The  first Appellant Court found, on a proper appreciation of evidence, that  Ram  Charan  Sonar and Swaroop Sonar had  been  making claims to be owners of the property, ever since the death of Lakshamania,  and  that no heir of Lakshamania  had  refuted this  claim.  The first Appellate Court also noted that  the predecessors  in title of the 1st Respondent had not stepped into  the  witness  box to prove that they were  related  to Lakshamania.   The first Appellate Court also held that  the documents relied upon by the 1st Respondent viz Ex.  20, Ex.

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21  and  Ex.   22 would not establish  relationship  as  the persons  who could give the best evidence had been available and  had  not  stepped  into the  witness  box.   The  first Appellate  Court noted that the only family member who  gave evidence  was Smt.  Mantorani and she had deposed that  some of  the predecessors in title of the 1st Respondent were not related.   The  first Appellate Court thus held that it  was not  proved  that  the  predecessors in  title  of  the  1st Respondent  were  related to Smt.  Lakshamania.   The  first Appellant  Court also held that the Suit was time barred  so far  as  the Mortgage Deed of 12th September, 1916  and  the Sale  Deed of 26th October, 1942 were concerned.  The  first Appellate  Court  noticed  that  the Sale  Deed  dated  26th October,  1942 was for a sum of Rs.  800/- which created  an interest in excess of the one held by the alleged mortgagee. The  first  Appellant Court held that the Suit  against  the purchasers  was barred by Article 134 of the Limitation Act. With  these findings the Civil Appeal was dismissed on  20th March,  1967.   1st Respondent then filed Second Appeal  No. 2100  of 1973.  To be noted that the question whether or not the  predecessors in title of the 1st Respondent were  heirs of  Smt  Laxmina was purely a question of fact.  It went  to the root of the case.  That it was purely a question of fact was  also  noted by the High Court.  This is clear from  the fact  that in the Judgment it is recorded as follows:   "The second point before the lower appellate court related to the plaintiff’s  right to sue.  The finding that Sitaram was not the  son  of  Paltan and Bechni and Rajwanti  were  not  the daughters of Gajadhar and Madho respectively, is undoubtedly a  finding  of fact, but here again it was contended by  Mr. V.K.S.   Choudhary  that  here the finding  is  vitiated  by errors of law and procedure."

                               (emphasis supplied)

   In  spite  of so noting the High Court then proceeds  to re-appreciate  evidence  in  a Second Appeal.   Reliance  is placed  on  Exs.  20, 21 and 22 to arrive at a finding  that these  documents  established  the relationship.   The  High Court  holds  that  non examination of the  predecessors  in title  of  the 1st Respondent did not matter as  they  would only  have confirmed the statements in these documents.  The High  Court disbelieves evidence of Smt.  Mantorani  without any  cogent  reasons.   High  Court  tries  to  justify  its appreciation  of  evidence  in the  following  manner:

     findings  arrived at by the lower  appellate  court were  vitiated  by  an  error  of  law  in  excluding   from consideration the documentary evidence on this question

   The  law  on the subject is very clear.  Even under  the unamended  Section  100 of the Code of Civil Procedure,  the Court  could  only  interfere  on a  question  of  law.   As admitted   by   High  Court   the  question,   whether   the predecessors in title were heirs of Lakshamania was purely a question  of  fact.   Both  the   Courts  below  had   given concurrent  findings  that  it  was   not  proved  that  the predecessors  in title of the 1st Respondent were related to Smt.   Lakshamania.  The justification sought to be given by the  Judge  that  there  was an error of  law  in  excluding documents  from  consideration is patently wrong.  Both  the Courts   below   had  not   excluded  the   documents   from consideration.   Both  the Courts below had  considered  the documents.  Both the Courts below had rightly held that mere statements  in  documents prepared  by  concerned/interested

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parties  cannot  establish  proof of facts  stated  therein. Parties who could establish the relationship were available. They  were  party Defendants to the suit.  Both  the  Courts below had rightly noted that these parties had chosen not to step  into  the  witness box.  In our view both  the  Courts below  had correctly appreciated the evidence and arrived at the  correct conclusion.  The High Court in  re-appreciating evidence  and  arriving at a contrary conclusion  erred  not only  in  law  but  also on facts.  To  be  remembered  that Defendants  3 to 7 were outsiders.  They were not members of the family.  As they had denied relationship the same had to be  established.  It had to be established in a manner which would  give  them  an  opportunity to  repudiate  it.   Mere statements  made  by  interested family members  in  earlier documents would not bind them or be proof against them.  Now let  us  see  whether  the reliance on  these  documents  is justified.   The documents relied upon are Exs.  20, 21  and 22.   Exs.   20  and  21 were  documents  in  which  Sitaram described himself as son of Paltan.  One fails to understand on what basis the Judge holds that this statement of Sitaram in the documents would prove relationship.  Sitaram is party Defendant  No.   8.  He is available to give  evidence.   He chooses  not  to  step  into   the  witness  box.   In  such circumstances  both the Courts below had correctly held that no reliance could be placed on these documents as the person who  made  the  statement chose not to  subject  himself  to cross-examination.  We also find very strange the comment of the  High Court that had he stepped into the witness box  he would  have confirmed the statement in these documents.  The High  Court  seems to have forgotten that parties  may  make statements in documents which are not true but that they may not  be  willing to support those statements in the  witness box  because they would be subject to cross-examination  and the  falsity  of  the   statement  established.   The  other document  relied upon by the High Court is Ex.  22.  This is the  Will of one Nauragi.  In this Will Bechni is  described by  Nauragi  as her daughter.  The Court below  had  rightly noted  that  this did not prove that Bechni was daughter  of Gajadhar.   The Will does not say so.  We fail to understand how  the  High  Court presumes that  this  establishes  that Bechni  is daughter of Gajadhar.  More importantly Bechni is Defendant  No.  10.  She does not step into the witness  box to depose that she is daughter of Gajadhar and/or to support the  Will.   The Courts below had thus rightly held that  no reliance could be placed on this document.  Thus the finding of the High Court, in the Second Appeal, cannot be sustained at all.  Both the Courts below were right in concluding that it  had not been established that the predecessors in  title of  the 1st Respondent were related to Smt.  Lakshamania  or Shri  Narayan.  Both the Courts below were right in  holding that  the  1st Respondent thus acquired no title and had  no right  to  claim redemption.  The 1st Respondent could  thus not  maintain  the  suit  and  the  same  should  have  been dismissed  on this ground itself.  At this stage it must  be mentioned  that Mr.  Chaudhary sought to support the finding of  the  High Court by submitting that Ram Charan Sonar  and Swaroop Sonar had in the written statement filed in Suit No. 17  of  1914 given a genealogy of the family and  that  that genealogy established the relationship.  We see no substance in this submission.  The Judge has not based his findings on that  genealogy.   In 1914 neither Sita Ram nor Bechni  were born.   That genealogy does not show Defendants 8 or 9 or 10 or  11 or 12 or 13.  Thus that genealogy does not  establish relationship.   If  anything that genealogy  disproves  case that  these  Defendants  were  relations.   In  any  case  a

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genealogy  prepared  by Ram Charan Sonar and  Swaroop  Sonar would  not  bind  Defendants 3 to 7.  In this  view  of  the matter  nothing further requires to be considered.   However before we part it must be mentioned that the High Court also seriously  erred in reversing the finding of both the Courts below that the Suit was barred by limitation.  This Suit was governed  by the Limitation Act of 1948.  Arts.  134 and 148@@                                                      JJJJJJJ read  as  follows:  134.  To recover possession Twelve  When@@ JJJJJJJJJJJJJJJJJJ the  transfer  of  immovable years  becomes  known  property conveyed  or  to  the  plaintiff:  bequeathed  in  trust  or mortgaged  and  afterwards  transferred by  the  trustee  or mortgagee for a valuable consideration.

   148.   Against  a mortgagee Sixty When the right  to  to redeem  or  to  years  redeem or to  recover  possession  of recover possession immovable property accrues:  mortgaged.

   Thus  a  Suit for redemption of mortgage could be  filed within  60  years.   But  if the mortgagee  had  created  an interest  in  excess  of the right enjoyed by  him  then  to recover  possession against the third party the Suit had  to be  filed within 12 years of the transfer becoming known  to the  Plaintiff.  The rational in cutting down the period  of 60  years  to  12 years is clear.  The 60  years  period  is granted  as a mortgagee always remains a mortgagee and  thus the  rights  remain the same.  However when an  interest  in excess  of the interest of the mortgagee is created then the third  party  is  not  claiming under  the  mortgagee.   The position  of such a person could not be worse than that of a rank  trespasser who was in open and hostile possession.  As the  title  of  the rank trespasser would get  perfected  by adverse  possession on expiry of 12 years so also the  title of  such transferee would get perfected after 12 years.  The period  of 12 years has to run from the date of knowledge by the  Plaintiff of such transfer.  It is always for the party who  files  the Suit to show that the Suit is  within  time. Thus  in cases where the suit is filed beyond the period  of 12  years,  the Plaintiff would have to aver and then  prove that  the Suit is within 12 years of his/her knowledge.   In the  absence of any averment or proof, to show that the suit is  within  time,  it  is  the  Plaintiff  who  would  fail. Whenever  a document is registered the date of  registration becomes  the date of deemed knowledge.  In other cases where a  fact  could  be discovered by due diligence  then  deemed knowledge  would  be attributed to the Plaintiff  because  a party  cannot  be allowed to extend period of limitation  by merely  claiming that he had no knowledge.  As set out above Swaroop Sonar was claiming ownership rights from as far back as  1914/1915.   It  is  not the Plaintiffs  case  that  her predecessors  were not aware of Suit No.  17 of 1914 or  the pleadings therein.  On the contrary in para 10 of the Plaint a  mention is made about this suit.  This clearly shows that predecessors  in title were aware of the suit and the  claim made  therein.   They  and/or  the   other  heirs  of   Smt. Lakshamania,  who  were  alive at that time,  chose  not  to challenge  Swaroop Sonar within 12 years of such  assertion. As  stated above Swaroop Sonar was not a mortgagee.  So  his title  got perfected by adverse possession long before  1960 when this suit was filed.  It is clear that the predecessors in  title had informed Plaintiff about Suit No.  17 of 1914. It was for the Plaintiff to aver and prove that her suit was in time against Swaroop Sonar and his family members.  There

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is  no  averment  or proof as to how the suit was  in  time. Apart  from this, as set out above, other interest in excess of rights of mortgagee had been created.  They are:  (a) Ram Charan  Sonar  created  a  mortgage for  10  years,  of  the southern  house,  on  12th September 1916.  (b)  Ram  Charan Sonar and Swaroop Sonar sold a part of the northern house to Ram  Charan Teli on 26th October 1942.  (c) On 4th  December 1948  a  sale takes place in favour of Ramraj and  Lakshman. This  is  registered  on 15th January 1949.  In  the  Plaint there  is no averment or statement that the predecessors  in title  of  the  1st  Respondent  were  not  aware  of  these transactions.   In evidence there is no deposition that  the predecessors  in title were not aware of these transactions. The  mortgagee  i.e.  Hanuman and the purchasers  i.e.   Ram Charan  Teli and Ramraj and Lakshman were put in  possession of  the property sold to them.  There was no attempt to hide these  transactions.  The moment that the respective  person i.e.   Hanuman,  then  Ram Charan Teli and then  Ramraj  and Lakshman took possession the predecessors were put to notice that some right had been created in favour of a third party. With  a  little diligence and minimal enquiry it could  have been  found out what that right was.  The fact that there is no  evidence  that the predecessors in title were not  aware clearly  establishes that they were aware.  The suit is only filed on 6th December 1960.  On this date it is clearly time barred  so  far  as transactions at (a) and  (b)  above  are conscerned.   Yet the High Court holds that the suit is  not time  barred  and grants redemption of the entire  property.   Let  us  now see the erroneous and  absolutely  fallacious reasoning  adopted  by the High Court to hold that the  suit was  not  transactions.  barred by limitation in respect  of these  two  In respect of the mortgage dt.   12th  September 1916  the  High  Court states as follows:  "So  far  as  the mortgage  deed of 1916 Ex.A/4- is concerned, it has  already been seen above that Hanuman, defendant No.  7, thus clearly stated  that  he was not in possession under  that  Mortgage deed.   The  mortgage has been re-deemed vide-compromise  in Suit  No.   85 of 1959 dated the 11th April,  1962,  between Ram,  who  was  the  plaintiff in that  suit  and  is  third defendant  in  the  present   suit,  and  Hanuman,  Mahadeo, Sankatha  and  others of whom Hanuman, Mahadeo and  Sankatha are  defendants Nos.  1, 2 and 7 respectively in the present suit.   At any rate the usufructuary mortgage is not a  kind of transfer which could attract the applicability of Article 134  of  the  schedule to the Indian Limitation  Act,  1908. Accordingly,  I hold that the present suit could not be said to  be  barred by limitation under Article 134 by reason  of the transfers made by Ex.A/4."

   In  so  holding the High Court conveniently ignores  the fact  that  the  redemption only took place in  1959.   Long before that the right to make a claim, provided predecessors in  title  stepped into shoes of mortgagor, against  Hanuman was  already  time  barred.  The redemption  by  Ramraj  and Lakshman  was  not on behalf of the mortgagors but under  an independent right claimed by them.  Therefore the redemption did not extend limitation or give any fresh right to the 1st Respondent  or her predecessors.  It must be remembered that Ramraj  and  Lashman were permitted to redeem in  their  own right in spite of objections by the predecessors in title of the  1st Respondent.  Also it is entirely erroneous to  hold that  Article  134  would  not apply  to  a  transaction  of mortgage  where  an interest in excess of the right  of  the mortgagee  has  been created.  Thus the finding of the  High Court on this count cannot be sustained at all.

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   In  respect of the sale in favour of Ram Charan Teli  on 26th October 1942 the High Court holds as follows:  "Another@@      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ sale  deed referred to was that dated the 26th October, 1942 in  favour  of Ram Charan Teli, who in his turn  executed  a sale  deed  dated  the  20th December,  1954  in  favour  of defendants No.  5 and 6.  This refers to a part of the house under  Mad  ’As’ of the plaint.  Defendant No.  5 is  Lakhan Kandu  who appeared as D.W.3 and gave his name as Ram Lakhan Sahu.   The plea of the bar of limitation under Article  134 was  based  on  paragraph  18 of the  written  statement  of defendants  Nos.   5 and 6 in which it was stated  that  Ram Charan  Sonar  sold  the house as  owner;   Paltan’s  family members  were  aware  of  it,  but  they  never  raised  any objection  within  12 years thereof, nor did they  file  any suit,  hence, the suit is barred by limitation prescribed by Article  134.  In cross-examination Ram Lakhan Sahu  (D.W.3) stated:   (Translated  into English for convenience  to  the Hon’ble Judges):

   "In  para 18 of the written statement the family members of  Paltan had knowledge.  How it is written, I do not know. Whether  this  thing is written rightly or wrongly I  cannot tell."

   This  statement  of Ram Lakhan Sahu (D.W.3)  knocks  the bottom  out  of the plea raised by defendants Nos.  5 and  6 that  the suit for possession in respect of the house  under Mad ’as’ which was under their possession and which they had purchased  from  Ram  Charan  Teli,  who  in  its  turn  had purchased  it under a sale deed dated the 26th October, 1942 -   Ex.A/2-  was  barred  by  limitation.   The   limitation prescribed  by  Article  134 of the Schedule to  the  Indian Limitation   Act,  1908,  for   recovery  of  possession  of immovable  property  which was mortgaged and  is  afterwards transferred  by the mortgagee for a valuable  consideration, was  12 years from the date when the transfer becomes  known to   the  plaintiff.   The   plaintiff  had  purchased   the properties  in suit in the year 1960 and the suit was  filed on  the  6th  Dec.,  1960.   It  is  the  knowledge  of  her predecessors-in-interest  which  mattered  for  purposes  of computating  the  limitation of 12 years prescribed  by  the said  Article  134.   The  predecessors-in-interest  or  the persons  from whom the plaintiff had purchased the  property were  the  members  of the family of  Narayan.   Paltan  was admittedly  a collateral of Narayan and when defendants Nos. 5  and  6 pleaded in paragraph 18 of the  written  statement that the family members of Paltan were aware of the purchase of the property of Ram Charan Sonar as owner, they meant the predecessors-in-interest  of the plaintiff from whom she had purchased  the  properties in suit.  The sworn statement  of Ram  Lakhan  Sahu  (D.W.3) wipes out the plea  contained  in paragraph  18 of the written statement.  But Ram Lakhan Sahu (D.W.3)  had also stated in his examination-in-chief that  : (translated  into  English  for convenience to  the  Hon’ble Judges):

   "When I got the sale deed executed by Ramlakhan Teli, at that time Sitaram had objected."

   And  in  cross-examination he stated:  (translated  into English for convenience to the Hon’ble Judges):

   "Sitaram  tells  him as son of Palton but he is not  his

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son.   When Sitaram had come to make objection against  my sale deed, I was knowing him even from before it.  I did not write  in my written statement about the point of  objection of Sitaram."

   Looking  to the evidence it appears that while it  could be  said that the plaintiff or her  predecessors-in-interest were  aware  of the fact that the defendants Nos.  5  and  6 were  exercising  rights of full ownership over the part  of the  house  under  Mad  ’Aa’  since  the  purchase  made  by defendant  no.  5 in the year 1954, and saw that house being made  packka two or three years thereafter, vide-  statement of  Sukh  Deo  (P.W.4),  I have not been able  to  find  any evidence  to show that they were aware of the fact that  Ram Charan Sonar had sold the full ownership in the house to Ram Charan  Teli  by the sale deed dated the 26th October,  1942 (Ex.A/2).   The  finding  that  the   suit  was  barred   by limitation  under  Article  134  in  respect  of  the  house purchased by defendant no.  5 under Mad ’Aa’ is thus without any  basis and being based on no evidence it is vitiated  in law and liable to be set aside as such."

                               (emphasis supplied)

   Thus  the  High Court seeks to hold that the suit is  in time  on the ground that Lakhan was not able to sustain  his averment  that the Plaintiffs predecessors had knowledge  of the  nature of the sale executed on 26th October 1942.   The High Court has seriously erred in forgetting that it was for the Plaintiff to aver and to prove that her predecessors had no  knowledge of this sale or its nature.  There is no  such averment  or proof.  The High Court is itself commenting  on the fact that it has not been able to find any evidance that the predecessors had knowledge.  What the High Court forgets is  that in para 4 of the plaint a referance is made to this sale.   Thus  the  1st Respondent and her  predecessors  had knowledge  of this sale.  It was for them to aver and  prove that  their  knowledge was within 12 years of the suit.   It was for them to aver and prove that they had no knowledge of the  nature  of  this   transaction.   Even  after  repeated questions  from Court the learned counsel for the Respondent could  not  show  to  us any averment  or  proof  that  this knowledge  was  within  12 years of the suit.   Also  to  be remembered  that  Lakhan purchased from Ram Charan  Teli  on 20th  December, 1954.  How did the High Court expect him  to depose  about knowledge of Plaintiff predecessors about  the transaction  of  26th October, 1942.  To be remembered  that Ram  Charan  Teli was put in possession of the property  and started  staying there with his family.  It is impossible to believe that the predecessors would not know that a stranger had started residing there.  A simple enquiry would disclose under  what rights he was staying there.  Advisably there is no  averment  that the predecessors were not aware  of  this transaction  or its nature and advisably nobody stepped into the witness box to state that they were not so aware.  There was  no burden or duty on the Defendants to prove  knowledge on  part  of the Plaintiff.  It is only after, and  if,  the Plaintiff  first  averred and then proved that the suit  was within  12  years of the date they gained knowledge  of  the transaction  that  the  burden  will  have  shifted  on  the Defendant  to  show that the Plaintiff claims is false.   In the  absence  of any such averment and proof  the  Plaintiff must  fail.   No question arose of the Defendants having  to show  that the Plaintiff or her predecessors had  knowledge. By  wrongly  casting  the  burden on the  Defendant  and  by

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ignoring the fact that the Plaintiff had neither averred nor proved  that  her predecessor did not have knowledge of  the transaction prior to 12 years of the filing of the suit, the High  Court has seriously erred in law.  The High Court  has also  seriously  erred  in considering bona-  fides  of  the transaction  of 20th December 1954.  The remedy was  already barred  by  reason  of  the transaction of  sale  dt.   26th October  1942.  Ram Charan Teli had perfected his rights  in the property as that sale was not challenged within 12 years of knowledge of the Plaintiffs predecessors.  By the sale of 20th  December 1954 Ram Charan Teli was selling rights which he  had acquired.  He was not selling mortgagees interest or rights.  Thus considering bona-fides of the purchasers under transaction  of  20th  December 1954 did not arise  at  all. Even  otherwise in Article 134 the Legislature has purposely omitted  the words bona- fide.  All that is required is  a purchaser  for  valuable consideration.  It is nobodys  case that  the  sales of 26th October 1942 and/or  20th  December 1954 were not for valuable consideration.  Also pertinent to note  that the High Court does not hold that the transaction of 26th October 1942 was not bonafide.  Thus Ram Charan Teli     would  also  get  the protection of Section  41  of  the Transfer  of  Property  Act.   Thus the  sustained  at  all. findings  of  the  High Court in this regard  cannot  be  In respect  of  the transaction of sale dt.  4th December  1948 the  High  Court holds that the date of knowledge  would  be date  of registration on 15th January 1949 and that the suit was  within  12 years of that date.  However what  the  High Court ignores is that the sale is also by the son of Swaroop Sonar.   As set out above Swaroop Sonar had perfected  title by adverse possession.  Therefore, even if the Plaintiff had a right, no relief could have been granted in respect of the share of Swaroop Sonar.  Thus the Judgment of the High Court is unsustainable also on the question of limitation.  On the above  mentioned  two  grounds  the Suit  should  have  been dismissed.   Before  we pronounce the Order the  authorities relied  upon  by Mr.  Choudhary have to be dealt with.   Mr. Choudhary  has  relied  upon Patel Bhudarbhai  Maganbhai  v. Patel  Khemabhai Ambaram reported in (1997) 10 S.C.C.   611. In  this case one Bai Jivi had mortgaged the property to one Kana.   The wife of Kana executed the mortgage in favour  of one Kuber.  Bai Jivi then filed a suit for redemption of the mortgage.   The  defence  taken  up was that  Bai  Jivi  had asserted a right as an owner by executing a mortgage deed in favour  of  Kuber  and that this mortgage deed  was  in  the knowledge  of  the  plaintiff and, therefore, the  suit  for redemption  which  has  been filed beyond the period  of  12 years  could not be maintained.  This Court held that once a mortgagee  always  a  mortgagee.  This  Court  further  also observed  as  follows:   "It is seen that Bai  Jivi  or  her successor-in-interest  were  not made parties either to  the second  mortgage  executed on 31-5-1935 or to the  suit  for redemption  nor  any acknowledgment in that behalf has  been pleaded  or established.  It is also seen that in the plaint the  only  pleading  was  that  Hati  became  aware  of  the execution  of the mortgage in favour of the second mortgagee in  1935.   It  is  true  that Bai  Jivi  had  knowledge  of assertion  of any hostile title either as an owner or of any other  title  detrimental to her interest and acquiesced  to it;  perhaps the contention bears relevance."

   This  Court further held that the mortgage of Kuber  had been  redeemed by Shivi and, therefore, Shivi only continued as  a mortgagee and against her the period of limitation was 30  years.  In the present case it is to be seen that  there

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was  an  absolute sale in favour of Ram Charan Teli on  26th October,  1942.   Then, on 4th December 1948, there  was  an absolute  sale  in  favour  of  Ramraj  and  Lakshman.   The mortgage  executed in favour of Hanuman was redeemed not  by Ram  Charan Sonar and his brother but by Ramraj.  Ram Charan Teli,  Ramraj  and  Lakshman  were  claiming  title  not  as mortgagees  or  sub-mortgagees but in their own rights.   On the  above  quoted  observations of this Court it  would  be clear that by executing these documents Ram Charan Sonar and Swaroop  Sonar were claiming title hostile to the  mortgagor and  had created absolute interest in the property in favour of  third  parties.   The suit against those  third  parties would  become  barred  if not filed within a  period  of  12 years.  This authority, therefore, is not of much assistance to Mr.  Choudhary.  For the same reason the cases of Krishna Prosad  v.  Baraboni Coal Concern Ltd.  reported in AIR 1937 P.C.   251, Jai Nandan v.  Umrao Koeri reported in AIR  1929 Allahabad  305,  Lachman  v.   Munia reported  in  AIR  1925 Allahabad  759 and Iswar Dass Jain v.  Sohan Lal reported in (2000)  1  SCC  434  can  be of no  assistance  to  the  1st Respondent.   Mr.   Choudhary also relied upon the  case  of Lalji  Jetha  v.  Kalidas reported in AIR 1967 SC  978.   In this  case  one Sundarji mortgaged two shops in Jamnagar  on 11th  December, 1907.  The mortgagee was put in  possession. On  25th August, 1930 family members of Sundarji, who had in the meantime died, entered into an Agreement to Sell the two shops  and  certain other property to the mortgagee.   After having  entered  into such an Agreement to Sell  the  family members  of Sundarji sold the said shops to one Lalji  Jetha and  Kanji  Jetha  on 10th September, 1930.   The  mortgagee filed  a  suit for specific performance of the Agreement  to Sell  and for setting aside the subsequent Sale Deed.   This Court  ultimately  held  that  the Sale Deed  could  not  be declared  to  be void but that the Sale Deed was subject  to the  Agreement to Sell in favour of the mortgagees.  In  our view  this  Judgment has no application to the facts of  the present  case  and is entirely irrelevant.   Mr.   Choudhary also  relied  on the case of Sant Lal Jain v.   Avtar  Singh reported  in AIR 1985 SC 857.  In this case a lease has been created  in favour of a party.  The lessee gave a licence to a  third  party  for a specific period.   That  licence  was terminated  and a suit for recovery was filed by the lessee. In the meantime the licensee purchased the property from the owner.   This  Court held that even though the licensee  may have purchased the property from the registered owner, still the  licensee could not, deny the title of the lessor.  This Court held that the licensee must first surrender possession and  seek  his  remedy separately in case  he  has  acquired title.   There  could be no dispute with the proposition  of law.   But they have no application so far as Swaroop  Sonar and the purchasers under sale deeds of 12th October 1942 and 4th  December  1948 are conscerned.  These parties were  not claiming  any  rights  under the mortgage.   For  the  above reasons the Appeal is allowed.  The impugned Judgment is set aside.  The suit will stand dismissed.  In the view which we have taken, it is not necessary for us to consider the cross objections which had been filed by the 1st Respondent.  This Appeal stands disposed of accordingly.  In the circumstances of the case there will be no order as to costs.