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1966 DIGILAW 206 (RAJ)

Narain v. Kalu

1966-09-23

S.L.KAKAR

body1966
This revision is directed against the order of the Revenue Appellate Authority, Udaipur dated the 19th March, 1963 under which he upheld the order of the Assistant Collector Vallabhnagar dated the 21st September, 1962. The facts of the case in brief are that the non-applicant brought a suit for redemption of agricultural land in the Court of the Assistant Collector Vallabhnagar on 13-1-58. During the proceedings an objection was raised by the defendant applicant that as the cause of action had not accrued at that time as the period of redemption having not expired the suit was pre-mature. The trial court did not agree with this contention. An appeal was filed in the court of the Revenue Appellate Authority but i|t met with no success ; hence this revision. The main contention raised before me was that both the courts below had gone wrong in holding that the suit was not pre-mature or that the suit of this nature was competent in a revenue court in view of recent ruling of the Rajasthan High Court in Bhera versus Kesar Singh (RLW 1966 page 305). I have carefully gone through the authority relied upon by the learned counsel for the applicant. It was on a reference made by the Munsif Rajsamand under sec. 243(2) of the Rajasthan Tenancy Act. The facts of that case were that according to the plaint the holding was mortgaged with possession in favour of Kesar Singh defendant for Rs, 88/- about 3 years prior to the institution of the suit, that the mortgage-deed which was executed on a stamped paper by him was in the possession of defendant No. 1 and that the mortgaged money had been fully paid out of the profits from the land. The mortgage should therefrom be redeemed without payment, or in the alternative it was stated that the plaintiff was willing to pay whatever might be found due on the mortgage. His lordship Jagatnaraian J. who decided this case held discussing secs. 43, 43-A, 183 and 187 of the Tenancy Act came to the conclusion, that after amendment of S. 43-A the Rajasthan Tenancy Act "contains no provision similar to that contained in it before amendment and a suit for redemption of a usufructuary mortgage made before the commencement of the Rajasthan Tenancy Act, 1955, therefore, lies in the Civil Court, unless sec. 43(2) is applicable to it, that is, unless a period of twenty years has elapsed since the mortgage was made has expired." The ratio-decidendi of this authority, however, is not applicable to the facts of this case. The mortgage in this case was a usufructuary mortgage but the time when the suit was filed, sec. 43 had not been amended. This amendment came into force on 5th of April 1961. Provisions of sec. 43-A were not made applicable to usufructuary mortgages. The present mortgage was a usufructuary mortgage but the suit was filed prior to this amendment. Therefore, revenue court was competent to entertain the same. If the suit had been filed after 5th of April 1961 the contention of the counsel for the applicant that the revenue court was not competent to entertain it would have been tenable in view of the authority cited above. Since the present suit was properly instituted in a revenue court the only point for determination in this case, is whether if before the expiry of the period of limitation, a suit for redemption is filed it can continue or should be dismissed. As we have seen above Bhera vs. Kesar Singh is not an authority on this point. There is, it appears, some conflict of authority between various High Courts on this point. The Madras High Court has held (AIR 1926 Madras 595) that a suit in such a case should be dismissed but the Lahore High Court in AIR 1923 Lahore page 410 has held that such a suit should continue. In a Full Bench ruling of the Travancore High Court (AIR 1956 Travancore page 203) following 1946 Calcutta page 118 it was held that where a suit for redemption is dismissed by the trial court as premature, but during the pendency of appeal the right of redemption matures, the appellate court can take notice of this subsequent event and pass a decree for redemption for the purpose of doing complete justice between the parties and to avoid further litigation. In this case as we have seen, the suit was filed in 1968. As yet there is nothing on record to show what was the period of redemption. In this case as we have seen, the suit was filed in 1968. As yet there is nothing on record to show what was the period of redemption. The counsel for the non-applicant only conceded for the sake of argument that even if the period of redemption be taken to be 20 years, it had expired by the time objection was raised for disposal of the suit in the trial court. If a suit is brought and during the course of proceedings, and even in appeal, as held in AIR Travancore 1956 page 203 right of redemption or other rights accrue to the plaintiff, I think it would be denial of justice to dismiss the suit at this stage on the ground that at the time the plaint was filed the right did not accrue. It will only lead to unnecessary litigation. In my opinion, both the courts have therefore rightly held that such a suit should continue. I see no force in this revision and reject the revision application.