P. Ray, J.
1. The plaintiff-appellant took a loan of Rs. 200/ - from Rama Chandra Sahu, defendant No. 1-respondent and executed an unregistered and unstamped document of mortgage on March 16, 1982. The plaintiff also delivered possession of the suit properties to the said defendant No. 1. It was stipulated that the plaintiff would redeem the suit properties within three years from the date of mortgage. The plaintiff did not do that and the defendant No. 1 continued in possession. On May 12,1980 the plaintiff filed an application under Section 83 of the Transfer of Property Act which was registered as Misc. Case No. 12 of 1980 of the Court of Munsif, Narasingpur. The said miscellaneous case was dismissed on some technical ground. Thereafter in April, 1981 the plaintiff filed the present title suit being T.S. No. 4/81.
2. In the suit, the plaintiff has claimed that the mortgage stood discharged in terms of the provisions of Section 17 of the Orissa Money Lenders Act, 1939 (hereinafter referred to as the 'Act'). His further case is that under Section 17(2) of the Act defendant No. 1 was required to deliver possession of the suit property within three months from September 22, 1975. He has claimed that defendant No. 1 not having delivered possession he is entitled to mesne profits with interest thereon from December 22, 1975. He filed the suit for obtaining delivery of possession and the mesne profits.
3. Defendant No. 1 has contested the suit by filing a written statement. In the written statement defendant No. 1 admitted the mortgage. The further case of the defendants is that the plaintiff sold the suit properties to defendant No. 1 for a sum of Rs. 193.50 P. by an unregistered document and thereafter by a family partition in 1967 the suit properties were allotted to the share of the defendant No. 2. The defendants have claimed that defendant No. 2 being in possession of the suit properties for more than 12 years before the date of institution of the suit has perfected his right by way of adverse possession. They have also claimed that the suit is barred by limitation, and that in view of the dismissal of the application under Section 83 of the Transfer of Property Act, the suit is hit by the principles of res judicata.
4. The learned Munsif, Narasingpur by his judgment and decree dated May 7, 1982 decreed the suit, inter alia, holding that the mortgage stood automatically discharged under the provisions of the Orissa Money Lenders Act; that the defendant No. 1 is liable to deliver possession; that the defendants have failed to prove that the plaintiff sold the suit properties to defendant No. 1; that the defendant No. 2 has not acquired any interest by way of adverse possession and that the suit is not barred either by limitation or by the principles of res judicata.
5. Against the said judgment and decree the defendants preferred Title Appeal No. 7/82 of the court of Sub-Judge, Athgarh. By judgment and decree dated February 15, 1985, the First Appellate Court allowed the appeal holding, inter alia, that the suit is time barred and that defendants 1 and 2 have perfected their right and title by way of adverse possession. The present second appeal has been preferred by the plaintiff.
6. The First Appellate Court has held that the suit is barred by limitation upon the view that the suit should have been filed within 12 years from the date fixed for redeeming the mortgage, i.e., March 16, 1965 or in the alternative the same should have been filed within 3 years from December 26, 1975 when the defendant No. 1 was liable to deliver possession of the suit properties to the plaintiff in terms of Section 17(2) of the Money Lenders Act, 1939.
7. It appears that the First Appellate Court has not at all adverted to the provisions, of the Limitation Act and proceeded upon a misconception. Under Article 61 (a) of the Limitation Act a suit to redeem or recover possession of the immovable property mortgaged can be filed within 30 years from the date when the right to redeem or recover of possession accrues. The suit has been filed on, April 22, 1981 clearly within 30 years. There is no material or any finding to show that Article 61 (b) of the Limitation Act is attracted in the present case. In the facts and circumstances of the case, it cannot be held that the suit is barred by limitation.
8. It further appears that the First Appellate Court proceeded upon the view that there was a valid mortgage and it declined to consider the contention that the document being unregistered and unstamped, there could not be any valid mortgage merely because the defendant No. 1 admitted in his written statement that the suit property was mortgaged to him. The First Appellate Court committed error in this respect. It has failed to take note of Section 59 of the Transfer of Property Act which clearly lays down that where the principal money accrued is Rs, 100/- or upwards, a mortgage, other than a mortgage by deposit of title deeds can be effected only by a registered instrument, signed by the mortgagor and attested by at least two witnesses. There was thus no valid mortgage on the date when the mortgage was sought to be made.
9. On behalf of the respondents it has been urged that in absence of a valid document creating the mortgage, the possession of the defendant No. 1 was adverse from the very beginning and his title was perfected by dint of continuous possession for more than 12 years. Reliance hay been placed on the decision reported in AIR 1961 Orissa 102 (Govind Jiew Thakur v. Surendra Jena). The said contention is founded on the assumption that a mortgagee in possession under a void deed obtains an absolute right of ownership on the expiry of 12 years of uninterrupted continous possession.
10. The said assumption is not correct, The legal position has been made clear by two decisions of this Court. In AIR 1950 Orissa 213 (Purusottam Das v. S. M. Desouza) a Division Bench of this Court discussed various case laws on the question and held that where a person obtains possession under a void mortgage, he acquires on the lapse of twelve years, a prescriptive right to the limited interest by way of mortgage. The facts of the said case are almost similar to those of the present case. It has been clearly stated that the 'assumption that the possession of the mortgagee under a void mortgage is adverse in respect of the absolute title of the owner is unfounded.'
11. The same view has been reiterated and followed in AIR 1964 Orissa 258 (Mst. Nilabati Padhiani v. Pirabati PadhianiJ. It has been stated therein :
'...... It is also the settled view that where aperson obtains possession under an invalid mortgage and there is nothing to show that at any time he has asserted possession under any claim of absolute right, he acquired on the lapse of 12 years prescriptive right to the limited interest of mortgagee.'
12. In the present case also there is nothing to show that at any point of time the mortgagee-in-possession asserted any other right or claim. In the written statement a plea was taken that the plaintiff sold the suit properties in 1965 by an unregistered document. No such unregistered document has been produced. Only two receipts showing payment of a total amount of Rs. 193.50 P. have been exhibited. There is also nothing to indicate that at any time before the institution of the suit any such claim was put forward by the defendant No. 1.
13. In view of the aforesaid direct decisions reported in AIR 1950 Orissa 213 (supra) and AIR 1964 Orissa 258 (supra), the decision reported in AIR 1961 Orissa 102 (supra) does not apply to the facts of the present case.
14. Thus, in the facts and circumstances of the present case, the defendant No. 1 obtained only a mortgagee's limited right on the expiry of 12 years from the date of a mortgage and there could not be any question of claiming any adverse possession thereafter.
15. However, both the Courts below committed error in taking the view that the mortgage stood discharged before 26th September, 1975 in accordance with Section 17 of the Act. There being no valid mortgage deed, no possessory mortgage was there till March 1974. It has been held in AIR 1950 Orissa 213 that: -
'....... for the purpose of the Orissa Money Lenders Act the prior period for which he was in possession as an invalid mortgagee does not count.'
The defendant No. 1 became a mortgagee-in-possession on and from March 16, 1974 and Section 17 of the Act was attracted from that day. By operation of Section 17(1) of the Act the said mortgage stood discharged on and from March 16, 1981. Upon expiry of seven years from March 16, 1974 the mortgagee was liable to put the mortgagor in possession of the suit properties free from mortgage and other encumbrances, if any.
16. For the aforesaid reasons, it is held that the plaintiff is entitled to get back the possession of the suit property. In absence of any evidence or finding that the suit property was fetching any income, I am not inclined to allow mesne profits for the period prior to the judgment. The plaintiff will, however, be entitled to mesne profits at the rate of Rs. 50/- per month from the date of this judgment till he is handed over possession of the suit property by the defendant.
17. In the result, the appeal is allowed. The plaintiff-appellant gets a decree for recovery of possession of the suit properties from the defendants and also for mesne profits at the rate of Rs. 50/ - per month from the date of this judgment till he is given possession of the suit properties. The defendants are directed to deliver possession of the suit properties within three months from today failing which the plaintiff will be at liberty to execute the decree.
18. The judgment and decree of the first appellate Court are set aside. The suit is decreed in the above terms.
There will be no order as to costs.