JUDGMENT K.N. Srivastava, J.
1. This is an appeal against the judgment and decree passed by the Civil Judge, Ballia, against the judgment and decree passed by the Munsif, Ballia. The Munsif had decreed the suit for redemption of the mortgage on payment of Rs. 2,000. The lower appellate court came to the conclusion that plaintiffs were entitled to certain amount by way of damages and, therefore, they were entitled to redeem the mortgage on payment of Rs. 377 only. It is against this judgment and decree that the defendant has filed this appeal.
2. The facts giving rise to this appeal are as follows:
On 30-1-1923 a mortgage was executed by Prahlad Hajjam in favour of Baldeo Singh and Ram Govind. On 8-6-1954 the mortgagors sold the property to the plaintiffs, On 4-10-1962 the vendees brought a suit that the mortgagees had dug pits in the disputed land making the Land unfit for agriculture and, therefore, they were liable to pay Rs. 1,500 as damages. They also alleged that they had paid Rs. 80 as rent and Rs. 43 was claimed as interest. Thus the plaintiffs claimed that they were entitled to Rs. 1,623 out of the mortgaged money and the mortgage be redeemed on payment of the balance.
3. The suit was contested by the defendant-appellant who alleged that he did not dig any pits in the land in suit; that the suit was barred by time and that the plaintiffs were not entitled to the reliefs claimed.
4. There is a finding of fact based on the evidence on record that the mortgagees had dug a pit 15 or 16 years back. This finding was not assailed in this second appeal. All that was argued was that according to Articles 32 and 41 of the old Limitation Act, the mortgagor could claim damages for this act of the mortgagee within two years or three years and as no such damages were claimed within the aforesaid period, the suit for damages was barred by time.
5. The learned lower appellate court held that the rent was paid by the plaintiffs and the plaintiffs were entitled to the damages claimed. Therefore, the suit was decreed for redemption of the mortgage on payment of Rs. 377 to the appellant.
6. Article 32 of the old Limitation Act reads as below:--
32. Against one who having a right to use property for specific purposes perverts it to other purposes.
Two years When the perversion first becomes known to the person injured thereby.
7. Article 41 of the old Limitation Act reads as below:
41. To restrain waste.
Three years When the waste begins.
As against this, the learned counsel for the respondents relied on the following portion of Section 76 of the Transfer of Property Act:--
"If the mortgagee fails to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this Chapter, be debited with the loss, if any occasioned by such failure."
8. The learned counsel for the appellant contended that the plaintiffs were entitled to claim the amount of damages at the time of redemption as provided under the aforesaid portion of Section 76 of the Transfer of Property Act. This section has been subject of interpretation in several cases of this court and of other High Courts.
9. This question came up for consideration in Mahabir v. Sheo Shankar, AIR 1929 Oudh 124. In this case it was held as below:--
"As regards the second point, so far as the bamboo clumps situate in Mahal Abbas Husain are concerned, it might be possible for the mortgagors with the loss occasioned to them by their having been cut in the accounts which take place at the time of redemption but I am not prepared to hold that the plaintiffs are in any way debarred from claiming the damages in the present suit. The last clause of Section 76, T.P. Act which has been relied upon used the word "may". The learned counsel for the defendants contends that this word should be considered as having the force of 'must'. I am not prepared to accept the contention. The cases of Sivachidambara Mudalye v. Kamaleshi Ammal and Angad Singh v. Kashi Prasad which have been referred to on this point are quite distinguishable and cannot afford any help in determining the question under consideration."
10. Thus it was, therefore, held in this case that a mortgagor can claim the amount of damages at the time of redemption but all the same he had also a right to claim it separately in an earlier suit claiming damages. This clearly indicates that in view of Section 76 of the Transfer of Property Act, Articles 32 and 41 of the old Limitation Act would be of no avail to the appellant.
11. In another case Mohammad Sher Khan v. Seth Bisheshwar Dayal, AIR 1925 Oudh 654, it was held that in a suit for waste by a mortgagee, the question is to be determined at the time of preparation of decree and a separate suit for the same could not lie. In this case reliance was placed on Section 144, C.P.C.
12. In Kanakraj v. B.V. Sundaraja Iyer, AIR 1968 Mad 394 it was observed as below:--
"To sum up, the law does not permit the mortgagor to the separate suit against the mortgagee; the law does not compel him to file such suits. On the other hand he ought to and is entitled to combine all the reliefs in the suit for possession without any time-limit."
13. Making this observation, reliance was placed by the Bench on Mulla's Transfer of Property Act, Fifth Edition page 534.
14. The view I am taking is thus supported by the decisions cited above The suit for claiming damages is not, therefore, barred and the plaintiffs can sue for redemption and claim the damages. No doubt he can also claim it in a separate suit if he so chooses. Therefore, the claim of the plaintiffs would not be barred under Articles 32 and 41 of the old Limitation Act.
15. No other point was pressed in this appeal, The appeal has no force in it. It is hereby dismissed with costs. The stay order is vacated.