Gyanendra Kumar, J.
1. This is a second appeal by the defendant arising out of a suit for possession of two plots Nos. 208 and 209 situated in village Raipur, Pargana Kewai in the district of Allahabad. Briefly stated the plaintiff's case was that one Raghunandan Singh was an occupancy tenant of the two plots in suit and had mortgaged the same for Rs. 50/- with Bindra, father of the defendant-appellant about thirty years ago i.e., in or about the year 1921 and that Bindra aforesaid was first in possession of the mortgaged plots and after his death the defendant has continued in permissive possession. The plaintiff's case further was that though the mortgage of an occupancy holding was void yet the plaintiff was entitled to recover possession of the land on payment of the debt of Rs. 50/-to the defendant. The defendant contested the suit, inter alia, on the ground that the mortgage set up by the plaintiff did not exist and was only imaginary, that the defendant was in possession of the property as a mortgagee for 60 years under a different mortgage deed dated Phagun Badi 10, Samwat 1929 (1883) Ex. P. 9 for Rs. 99/- executed by the said Raghunandan Singh in favour of the defendant's father. It was further pleaded that after the expiry of 60 years, the defendant's possession became adverse, which had matured into fulfledged occupancy rights after the efflux of another 12 years; as such the suit was barred by limitation.
2. The trial Court held that the mortgage set up by the plaintiff was not proved and, therefore, dismissed the suit on this ground alone. It did not go into the question of limitation pleaded by the defendant. Being aggrieved against the aforesaid decree of the trial Court, the plaintiff preferred an appeal, which was allowed by the Court below, decreeing the plaintiff's suit for possession on payment of Rs. 99/- to the defendant on the ground that although the plaintiff had failed to prove his case as set up in the plaint, yet he was entitled to a decree on the case as set up by the defendant; hence this appeal by the defendant.
3. The learned Advocte General appearing on behalf of the defendant appellant has, in the first place, urged that the Court below acted illegally and beyond its jurisdiction in decreeing the suit on the pleas which had not been set up by the plaintiff in the plaint. It is true that normally the plaintiff has to lay foundation in the plaint for the relief sought by him and the Court would not decree the suit if the plaintiff had failed to establish his case, as set forth in his pleadings. If he wants a relief on an alternative plea which is inconsistent with his pleadings, the proper course for him is to get the plaint duly amended, so that the defendant may have good notice thereof and may not be taken by surprise. However, if a definite case has been set up by the defendant inhis pleadings and the plaintiff subsequently acceptsthe same, the Court would be justified in decreeingthe suit in terms of the defendant's case if theplaintiff is found to be entitled to a decree evenon that basis, in such a case it is not necessaryfor the plaintiff to get his plaint amended or toinstitute a fresh suit for the relief allowable tohim on the basis of the case set up in the writtenstatement.
In support of his contention Mr. G.P. Bhargava, learned counsel for the plaintiff-respondent has invited my attention to the case of Jai Nandan Tewari v. Umrao Koeri : AIR1929All305 wherein Ashworth, J. observed :
'When in the case of usufructuary mortgage a plaintiff sues on the allegation that the property was mortgaged under two mortgages of which he gives the terms from hearsay and the defendant mortgagee admits that he holds the property as mortgagee but under 12 mortgagees, the Court is entitled to allow the plaintiff to succeed upon the admission of the defendant........ even thoughhis plaint set forth mortgages different in number and in other respects.'
Unfortunately Ashworth, J. had not ascribed anyreason for the above dictum which has now beenclearly, expounded by their Lordships of the Supreme Court in Firm Sriniwas Ram Kumar v.Mahabir Prasad : [1951]2SCR277 . In that casea suit for specific performance of a contract wasfiled in part performance of which the plaintiffalleged to have paid the defendants some money;the defendants denied the contract and pleaded thatthe money was taken by them as a loan. In sucha contingency, it was held that the Court can passa decree for recovery of loan in favour of theplaintiff on his failure to prove the contract eventhough the plaintiff had failed to Plead and claimrelief on the alternative case set up by the defendants.In his leading judgment Mukerjea, J. pointedout that the High court had taken an undoubtedly rigid and technical view in dismissing the suitof the plaintiff, inasmuch as it was certainly opento the plaintiff to take an alternative case andmake a prayer in the alternative for a decree formoney even if the allegations of the money beingpaid in pursuance of a contract of sale set up byhim could not be established by evidence. His Lordship further observed :
'The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the C. P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in hiswritten statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the defdt's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the pltf. to a separate suit.'
4. In support of the principle laid down by their Lordships of the Supreme Court in the above case, reliance was placed upon the pronouncement of the Judicial Committee in B. Mohan Manucha v. Manzoor Ahmad Khan, . The appeal had arisen out of a suit brought by the plaintiff to enforce the mortgage security. The plea of the defendant was that the mortgage was void. The privy Council held that it was open in such circumstances to the plaintiff to repudiate altogether the transaction set up by him and claim a relief outside it in the form of restitution under Section 65 of the Contract Act. Although no such alternative claim was made in the plaint, yet the privy Council allowed to be advanced and gave a decree on the ground that the respondents could not be prejudiced by such a claim at all and the matter could not be left to a separate suit. That being the position of law, the Court below was perfectly justified in decreeing the suit of the plaintiff on the case set up by the defendant in his written statement, without insisting on the amendment of the plaint or directing the plaintiff to a separate suit.
5. It was next contended by the learned Advocate General that the suit was barred by 60 years rule of limitation as prescribed under Article 148 of the Limitation Act and by 12 years rule envisaged by Article 144 of the Act, inasmuch as the defendant had remained in adverse possession for over 12 years, after the expiry of the period of 60 years reserved for redemption of mortgages. Thus he claimed the benefit of Articles 142 (148?) and 144 of the Indian Limitation Act. I am afraid, this argument, though plausible, is without any force. Even if the relationship between the plaintiff and the defendant was considered to be that of mortgagor and mortgagee, the latter was estopped under Section 115 of the Evidence Act from denying the title of the plaintiff mortgagor and setting up an adverse possession in himself, unless the defendant mortgagee had actually left the land and had further entered into possession of the property under a different status and title. Before, he could take advantage of the provisions of Articles 142 and 144 of the Indian Limitation Act he was bound to do some overt acts evidencing that he had left the holding as a mortgagee and had re-entered the same claiming adverse possession by setting up a title in himself. In : AIR1929All305 (Supra) Ashworth, J. had also observed 'It is well established that a mortgagee cannot deny the title of his mortgagor and set up adverse possession unless he actually leaves the holding and re-entersunder a different status.'
6. As a matter of fact and law, the provisionsof Articles 142, 144 and 148 of the Indian Limitation Act are not applicable to the instant case because the mortgage of the occupancy holdings was void ab initio. In this case, the relationship of mortgagor and mortgagee had never come into existence. The possession of the defendant was merely permissible in nature and would continue to be so, in spite of the efflux of any length of time. In Mahabal Singh v. Ram Raj : AIR1950All604 this Court had held that an usufructuary mortgage of an occupancy holding was void and the so-called mortgagor was not entitled to recover possession of the occupancy holdings without being called upon to return the consideration. It was further pointed out by their Lordships that the remedy of such a mortgagor was by way of instituting a suit for possession and not by way of seeking redemption. The debtor was, however, entitled to seek the relief of possession against the creditor in a civil Court, even though it was not open to him to obtain that relief by redemption. It was also pointed out that a relief for possession could be sought against the so-called mortgagee in all cases where he has been in possession for over 12 years as it is well-settled that the mortgagee prescribes no more than the mortgagee's interest.
7. The well-known maxim 'once a mortgage always a mortgage' is fully applicable to a case of the present nature. The possession of a mortgagee being admittedly permissive, it would continue to be so, in spite of the efflux of any length of time. If his possession In the eye of law was held to be not that of mortgagee, he would still be deemed to be in possession as a licensee. Such permissive possession cannot mature his title into ownership or even acquire occupancy rights, by any length of possession, unless, of course, he repudiates the title of his mortgagor or licensor, leaves the holding and re-occupies the same under a different right, title and status.
8. A case very similar to the one in question came up for consideration before a Division Bench of this Court in Barhu Singh v. Kharpattu, : AIR1956All436 . In that case an usufructuary mortgage of an occupancy holding created when the N. W. P. Act No. XII of 1881 was in force, must be treated as a valid transaction but in a qualified sense, i.e. in the sense of sub-letting with a covenant that the mortgagor will not be entitled to recover possession without payment of mortgage money and further that a transfer of an occupancy holding was not created by the mortgage but a mere right to occupy the holding was created upon certain covenants. In that view of the matter it was held that the mortgagee of an occupancy holding under the Rent Act of 1881, would have no right to claim an extinguishment of the mortgagor's interests in the property by the enforcement of the rights created by the mortgage. If the mortgagee did not get any interest in the occupancy holding he could not claim to obtain that interest by expiry of the period of limitation fixed for the redemption of the mortgage.
The right of redemption of the mortgagor in a usufructuary mortgage of this nature, will therefore, not be deemed to have become barred bylapse of time under Article 148 of the Limitation Act and the mortgagor could institute a suit for possession at any time upon payment of mortgage money, because his cause of action for recovery of possession would accrue upon his demand for possession upon payment of the mortgage money, and refusal thereof by the so called mortgagee.
The above principle was reiterated in a recent case of this Court in Hamid Husain v. Ram Naresh Mallah, 0065/1965 : AIR1965All221 where a Division Bench in a slightly different context held that in order that a person may be covered by Clause (d) of Sub-section (1) of Section 21 of the Zamindari Abolition and Land Reforms Act, he must be a mortgagee in law. The position of a mortgagee of an occupancy holding, the transfer whereof was forbidden by law, could not be that of a mortgagee in law. He was a mere licensee and consequently he could not be treated to be mortgagee in possession for purposes of Section 21(1)(d) of the Act. Such a person, therefore, could not become an asami within the meaning the said provisions of law. It was consequently held that a mortgagee under a void mortgage of an occupancy holding, like the present, does not acquire the status of an Asami under the provisions of the U. P. Zamindari Abolition and Land Reforms Act, that being the legal position of the parties, the plaintiff was entitled to regain possession of the disputed land after paying the defendant creditor a sum of Rs. 99/-, as was rightly found by the Court below.
The possession of the defendant as alleged by mortgagee continued to be permissive in nature and was that of a mere licensee. He could not, therefore, have acquired any better rights, title or status than that of a mere licensee, with the result that in spite of the efflux of period of 68 years (computed from the creation of the mortgage to the institution of the suit) his possession did not become adverse to that of the plaintiff nor did he mature the same so as to convert it into the rights and title of a proprietary or occupancy tenant or an asami. The suit of the plaintiff was, therefore not barred by limitation and he was entitled to delivery of possession as decreed by the Court below.
9. The appeal has no force and it is dismissed with costs.