A mortgagee in possession cannot simultaneously claim ownership through adverse possession without unequivocally repudiating the mortgage.

The respondent-plaintiff claimed ownership of the suit property and had earlier instituted a suit for possession on the basis of title, alleging that the appellant-defendant was a trespasser.

Although the Trial Court initially decreed that suit, the First Appellate Court held that the defendant had been recorded as a mortgagee in possession since 1972/1976 and that the plaintiff could obtain possession only after redemption of the mortgage.

The plaintiff consequently instituted the present suit for possession by way of redemption of mortgage.

The defendant contested the suit on grounds including res judicata, Order II Rule 2 CPC, limitation, non-compliance with Form 46, and adverse possession.

He also claimed ownership by adverse possession, although in the earlier proceedings he had asserted the status of a mortgagee.

Both subordinate courts decreed the suit, finding that the defendant was a mortgagee in possession and that the plaintiff was entitled to redemption and delivery of possession.

The defendant preferred the present regular second appeal.

The Court applied the principles governing redemption of mortgage and possession following redemption, along with the limitation rule that a suit for redemption is generally subject to a 30-year limitation period; it further observed that no limitation is prescribed in the case of an equitable mortgage, as stated in the judgment.

The Court applied the doctrine of res judicata, holding that the earlier decision did not bar the present suit because the earlier appellate judgment had recognised the mortgage relationship and thereby enabled the plaintiff to seek redemption.

It also applied the rule that a party cannot approbate and reprobate or rely on a representation in one proceeding and deny it in a subsequent proceeding, particularly where the party had secured an earlier judgment on that basis.

The Court relied on the evidentiary value of the revenue entries and the defendant’s prior admission that he was a mortgagee for Rs. 2,500, and held that the requirements concerning particulars of the mortgage were sufficiently established by the evidence.

The earlier appellate judgment, read with the rapat rojnamcha of 1972 and the jamabandi for 1976–77, conclusively established that the defendant entered possession as a mortgagee and continued in that capacity.

Since the plaintiff’s right to seek redemption followed from the judicial recognition of the mortgage, the present suit was not barred by res judicata or Order II Rule 2 CPC.

The suit, filed on 20 August 1991, was within the applicable 30-year limitation period calculated from 1972.

The defendant could not simultaneously rely on his status as mortgagee to defeat the earlier possession suit and later deny the mortgage to claim adverse possession.

No evidence showed that he had repudiated or abandoned the mortgage after the earlier judgment; consequently, adverse possession was not established.

The objection based on Form 46 also failed because the defendant’s prior testimony and the documentary evidence established both the commencement of the mortgage in 1972 and the mortgage amount of Rs. 2,500.

The findings of the courts below were concurrent findings of fact based on proper appreciation of evidence and disclosed no substantial question of law.

The defendant remained a mortgagee in possession and failed to prove acquisition of ownership by adverse possession.

Finding no substantial question of law, the Court dismissed the regular second appeal and affirmed the judgments and decrees of the courts below granting redemption of the mortgage and delivery of possession to the plaintiff.