Badri Singh v. Baldeo Singh — 1961 DIGILAW 119 (PAT)

Judgment Ramratna Singh, J. 1. This appeal is directed against a judgment of the first appellate court dismissing a suit for redemption and recovery of possession of some areas of cultivable land an area of 5 bighas 9 kithas and odd in respect of which redemption was sought was given to Khiro Singh, the ancestor of the defendants-respondents in sudbharna (usufructuary mortgage) of Peman Singh, the ancestor of the plaintiffs-appellants in 1899 A. D. The other area measuring 15 kathas and odd in respect of which there is a prayer for recovery of possession and rendition of accounts, was also put in possession of the ancestor of the respondents after some years. The respondents are admittedly in possession of both the areas, 2. Then the case of the appellants is that in 1908 the area of 15 kathas and odd was given by Peman Singh orally to the mortgagees, because it was agreed that the mortgagees would thereafter pay the rent (so far paid by the mortgagor in accordance with the terms of the bond of 1899) of the sudbharna land to the malik out of the income of this area and the balance of the income would be adjusted towards the principal mortgage debt. The respondents are said to have refused to render accounts and to return the land on payment of their dues, if any. On the other hand, the respondents say that Peman Singh sold both the areas orally to them in 1917. He accepted Rs. 90 only as the price of the equity of redemption of the sudbharna land. Further, in or about 1915 the sudbharna land went under water and remained inundated for two years. Hence in lieu of compensation for the loss suffered by the mortgagees due to the inundation, (sic) Peman Singh sold the area of 15 kathas and odd also orally to them. In the alternative, the defendants-respondents claimed acquisition of title to the suit lands by adverse possession. 3. The trial court accepted the case of the plaintiffs and decreed the suit, but the appellate court accepted the case of the defendants and dismissed the suit. Hence, the present appeal by the plaintiffs. 4. The first contention by Sri Lalnarain Sinha. In the alternative, the defendants-respondents claimed acquisition of title to the suit lands by adverse possession. 3. The trial court accepted the case of the plaintiffs and decreed the suit, but the appellate court accepted the case of the defendants and dismissed the suit. Hence, the present appeal by the plaintiffs. 4. The first contention by Sri Lalnarain Sinha. learned advocate for the appellants, was that the finding of the appellate court regarding oral sale was vitiated by a complete misapprehension of the case of the respondents and the evidence adduced on their behalf, but this contention is not well founded. The appellate Judge at first examined the case of the parties regarding 15 kathns and odd. He found that the witnesses examined on the point on behalf of the plaintiffs were incompetent and pointed out the improbability of the alleged oral agreement between the parties regarding this area, in view of the written agreement in the registered sudbharna bond that the rent of the sudbharna land was payable by the mortgagor. He then discussed certain circumstances and documents which made the case of the defendants-respondents probable. The original survey khatian (Ext. 3) of this area was produced from the custody of the respondents and this fact supported the defendants version that the khatian was made over to them in token of the oral sale. The custody of this khatinn by itself does not prove the case of oral sale; but, in the absence of any explanation on behalf of the plaintiffs, it is a circumstance against them- The survey khatian prepared by the Khasmahal authorities in 1919 shows a major portion of this area as raiyati land of Khiro Singh, the ancestor of the respondents. This khatian has, of course, not the same weight as the khatian prepared under the Tenancy Act, but it is a piece of evidence. In view of all these facts, he rightly accepted the case of the defendants regarding 15 kithas and odd. 5. Then the learned Judge discussed the evidence regarding 5 bights 9 kathas and odd. He accepted the oral evidence of the witnesses examined on behalf of the defendants-respondents and relied on an unregistered yaddasht (Ext. E) dated the 18th Poos 1327 Fasli (corresponding to some date in October 1920) said to have been executed by plaintiff Ramkhelawan Singh. 5. Then the learned Judge discussed the evidence regarding 5 bights 9 kathas and odd. He accepted the oral evidence of the witnesses examined on behalf of the defendants-respondents and relied on an unregistered yaddasht (Ext. E) dated the 18th Poos 1327 Fasli (corresponding to some date in October 1920) said to have been executed by plaintiff Ramkhelawan Singh. Exhibit E was rightly used for a collateral purpose, namely, to show the nature of possession. The case of the respondents is that they took this document from Ramkhelawan as the Khasmahal did not record their names as raiyats of the land in the Khatian of 1919 apparently because Khiro Singh was recorded as sudbhamadar in the remarks column of the cadastral survey Khatian prepared long before, but as stated by the judge, these defendants-respondents were recorded as raiyats of this 13nd except a few kathas in the subsequent khatians of Khasmahal. Hence, the learned Judge rightly accepted the case of the respondents regarding the execution of the Yaddasht. There is also a good explanation as to why plaintiff Badri Singh, the eldest member of the family, did not execute the Yaddasht The explanation is that admittedly Badri Singh was in service elsewhere and Ram Khelawan used to look after the family affairs at home. The recital in the yaddasht supports the case of the respondents regarding the oral sale of the equity of redemption for a sum of Rs. 90 only as also the sale of 15 kathas and odd in lieu of compensation for the loss on account of diluvion of the sudbharna land. There is also a recital to the effect that the oral sales had taken place in the time of Peman Singh a few years before the execution of the Yaddasht. If is true that the area of the sudbharna land said to have been sold is Only 5 bighas in the Yaddasht and that is why in the subsequent Khasmahal Khatian a few kathas of land situated in Ramdi-hari is not shown as raiyati land of the defendant-respondents; but this difference does not matter, because it is admitted that the entire area is still in possession of the respondents. In this connection, the appellate Judge referred to a Kabuliat admittedly executed by Ramkhelawan on the 14th January 1921 and observed that "it would be idle to presume that he (i.e. Ramkhelawan) was a young boy, not in a position to execute the yaddasht, in or about the same year." Sri Lalnarain Sinha commented on the words "in or about the same year" and said that the appellate court was wrong in treating the year of the oral sale as the year of the kabuliat. But the oral sale had been executed by Pemansingh and the appellate court used these words with reference to the yaddasht which is of December 1920 and the Kabuliat which is of January, 1921. Sri Sinha also said that instead of taking a Yaddasht, the defendants could have got the admission made by Ramkhelawan before the survey authorities; but the necessity for the Yaddasht arose after the Khatian was ready. In the circumstances, the learned Judge rightly accepted the case of oral sale. 6. Sri Lalnarain Sinha then commented on some observations of the learned Judge. A comment has been made by the Judge that the plaintiffs closed their case on the 19th August 1955, the defendants started adducing evidence on the 23rd August, 1955 and then Ramkhelawan was recalled and P. W. 7 was examined to deny the fact that the Yaddasht was executed by Ramkhelawan. Sri Lalnarain Sinha said that the plaintiffs were entitled to do this, because they had the right to adduce evidence in rebuttal; and this contention is correct But the learned Judge does not say that the defendants had no right to deny the fact at this stage. What he says is that the denial at this stage "does not create any impression". Moreover, this is not the only ground for accepting the case of the defendants-respondents. Another observation of the appellate Judge is in respect of the remarks of the trial court regarding the condition of the yaddasht. The Munsif observed that the paper on which the Yaddasht is written "seems to be a scrap of paper generally used in grocers shop to bundle miscellaneous articles and the very sight of it draws suspicion in every mind regarding the genuineness of such an important deed." The appellate Judge has said that this observation "is not at all justified. The Munsif observed that the paper on which the Yaddasht is written "seems to be a scrap of paper generally used in grocers shop to bundle miscellaneous articles and the very sight of it draws suspicion in every mind regarding the genuineness of such an important deed." The appellate Judge has said that this observation "is not at all justified. I am inclined to agree with the, appellate Judge and I would add that, the observation of the Munsif shows that he has no idea about the paper used by villagers for Yaddasht, which are merely memoranda of such facts as have taken place earlier. Another observation of the Munsif was that "the revenue stamp used at the top of the document seems to be as, fresh as anything", and the appellate Judge said that this observation "has also no force". Sri Sinha said that the Munsif had seen the document in August, 1955, whereas the appellate Judge saw it in May 1956. But there too I am inclined to agree with the appellate Judge. It is improbable that the revenue stamp in vogue in 1953, when the suit was instituted, could not have been in vogue in 1923. If, therefore, the Munsif thought that a revenue stamp of recent years had been used On the Yaddasht. he could have made inquiries from the press at Nasik where such stamps are printed. Another argument of Sri Lalnarain Sinha was that a property which was given in Sudbharna for Rs. 665/- could not be Worth Rs. 665/- plus Rs. 90.00 only. But he has not pointed out to us anything on the record to show that the plaintiffs made out a case at any time that the property was worth more than this amount. 7. On a consideration of all the facts and circumstances, I am of the opinion that the findings of the appellate Judge in respect of the facts in dispute are not vitiated by any misapprehension of the cases of the parties or the evidence adduced by them. In this connection, it is well to remember the scope of Section 100 of the Code of Civil Procedure, which has been reiterated by the Supreme Court in Deity Pattabhiramaswamy V/s. S. Hanymayya, AIR 1959 SC 57 thus: "The. provisions of Sec.100 are clear and unambiguous. In this connection, it is well to remember the scope of Section 100 of the Code of Civil Procedure, which has been reiterated by the Supreme Court in Deity Pattabhiramaswamy V/s. S. Hanymayya, AIR 1959 SC 57 thus: "The. provisions of Sec.100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on ths ground of erroneous finding of fact however cross the error may seem to be. Nor does the fact that the finding of the first appellate court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate court based upon an appreciation of the relevant evidence". 8. The next contention of Sri Sinha was that, inasmuch as the plaintiffs-appellants denied the oral sale, it was incumbent upon the respondents to prove not only the actual sale but also the fact that it was a good and valid sale for legal necessity of the joint family of which Peman was karta and the respondents have neither alleged legal necessity nor have they adduced any evidence to prove such necessity for the sale. Of course, the plaintiffs did not say anything about want of legal necessity nor did they raise any issue about it; but it was not necessary for the plaintiffs to do so in view of Order 6, Rule 13 of the Civil Procedure Code which lays down that a Party need not allege any matter of fact "which the law presumes in his favour or as to which the burden of proof lies upon the other side". Another contention of Sri Sinha was that, in the absence of a registered deed, the sale was not valid in law. Both these contentions are well founded. Mr. P.R. Das, who appeared for respondents, conceded that the sale was invalid but he asserted that the respondent acquired title to the suit land as owners on account of their adverse possession for more than twelve years, as has been found by the appellate Judge. 9. Both these contentions are well founded. Mr. P.R. Das, who appeared for respondents, conceded that the sale was invalid but he asserted that the respondent acquired title to the suit land as owners on account of their adverse possession for more than twelve years, as has been found by the appellate Judge. 9. Regarding the plea of adverse possession, Sri Lalnarain Sinha contended that a mortgages in possession cannot defeat the right of the mortgagor to redeem the mortgage unless he is in possession of the property for more than sixty years; and in support of this contention he relied on the Privy Council decision in Khiarajmal V/s. Daim, 32 Ind App 23 (PC) and a Bench Decision of this Court in Mir Wajid Ali V/s. Alidad Khan, AIR 1940 Pat 45, Which followed the Privy Council Decision. Put these were cases of unilateral acts; and it is well settled that a mortgage cannot by a mere assertion of his own, of, by a unilateral act on his own part, convert his possession as mortgagee into that of a absolute owner. The principle applicable to the consequences of a bilateral act of the mortgagor and the mortgagee is, however, different. In a Bench decision of this Court in Markanda V/s. Kameshwar Rao, ILR 26 Pat 717 r (AIR 1949 Pat 197) a large number of decisions, including the above two decisions, were considered; and after reiterating the above well recognised principle, their Lordships added: "But where, as in the present case, the bilateral acts of the parties, referred to above though invalid and, therefore, inoperative to convey title on the dates of those transactions, would operate to give adverse possession which if continued for the statutory period, would ripen into a good title". The decision of the Privy Council was distinguished, because in that case (a) the equity of redemption still subsisted, inasmuch as some of the heirs of the mortgagors were not parties to the decree or execution proceedings and, therefore, their interests were not affected by the execution, sales and (b) there was no evidence of any delivery of possession to the auction purchasers. The Patna decision in Mir Wajid Alis case, AIR 1940 Pat 45 was also distinguished in these words: "But in this case as in the case of 32 Ind App 23 (PC) the equity of redemption was purported to be sold out by auction sale to which one of the cosharers was not a party and their Lordships held that the equity of redemption was wiped out in respect of the shares of those co-sharers, who were parties to the mortgage decree, hut that the share in the equity of redemption belonging to the other cosharer, who was not represented in the mortgage action, still remained intact in spite of the lapse of more than twelve years". The principle regarding the consequences of the bilateral acts of the mortgagor and the mortgagee, laid down in Markandas case, ILR 26 Pat 717 : (AIR 1949 Pat 197) was reiterated by another Division Bench of this Court in Sukhdeo V/s. Lekha, ILR 36 Pat 753 : ( AIR 1957 Pat 502 ). The facts of that case were these. On the 19th May 1914 the defendants 2nd party executed an ijara deed or usufructuary mortgage in favour of the ancestor of the defendants 1st party in respect of the suit land. A rent suit was instituted by the land-lord against the mortgagors and the mortgagees; on the 17th August 1921 the suit was compromised; and in the compromise petition the position of the mortgagees as kebaladars of the ijara land was admitted by the mortgagors. The defendants 2nd party thereafter sold the ijara land under a registered sale deed dated the 23rd May 1945 to the ancestor of the plaintiffs. After sometime the plaintiffs instituted the suit for redemption, as the mortgagees refused to accept the ijara money Or to deliver possession of the suit land. The mortgagee-defendants resisted the suit as kebaladars of the suit land and, in the alternative, pleaded acquisition of title by adverse possession since the 17th August 1921. Their Lordships said : "In the present case ........ The mortgagee-defendants resisted the suit as kebaladars of the suit land and, in the alternative, pleaded acquisition of title by adverse possession since the 17th August 1921. Their Lordships said : "In the present case ........ even assuming that the compromise of 1921 was invalid, because of not being registered as required by law, and, as such, it did not amount either to a valid release, or to a valid transfer of the property in jlispute, still it represented the consensual act of the parties, and it was not merely a unilateral assertion of the mortgagees alone, and, as such, it had the effect of wiping out and extinguishing the equity of redemption of the plaintiffs vendors, by the defendants first party being in adverse possession for more than the statutory period, and, as such, the right of the defendants first party ripened into a right of full ownership by lapse of statutory period. The adverse possession of the defendants first Party began to run from 1921, when as a result of and under the compromise the defendants first party were "recognised as purchasers, and, the character of their possession as mortgagees changed into that of possession as absolute owners. The defendants first party being to adverse; possession since then against the defendants second party, the defendants first patty by being in possession for more than twelve years since then, acquired a right of full ownership, and, therefore, in 1945, the equity of redemption of the defendants second party was extinguished by adverse possession of the defendants first party; and, the defendants second Party had nothing left to convey to the plaintiffs." 10. The facts in the present case are similar. The first court of appeal has accepted the case of the defendants-respondents that they are in possession of the suit lands as purchasers since 1917; and there is no reason to disturb this finding of fact. The sale--a bilateral act--was, however, invalid for non-compliance with certain provisions of law. But, the respondents, who were originally mortgagees, have been asserting their right as purchasers since 1919-20 at the latest and they acquired a title as absolute owners of the suit lands by 1932. The finding of the lower appellate court must, therefore, be upheld on this point as well. 11. But, the respondents, who were originally mortgagees, have been asserting their right as purchasers since 1919-20 at the latest and they acquired a title as absolute owners of the suit lands by 1932. The finding of the lower appellate court must, therefore, be upheld on this point as well. 11. In the result, the right of redemption conferred on the plaintiffs-appellants by Sec. 60 of the Transfer of Property Act, was extinguished in 1932 at the latest; and the suit has bee" rightly dismissed. The appeal is accordingly dismissed with costs. Kanhaiya Singh, J. 12 I agree.