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1979 DIGILAW 170 (PAT)

Ajij Mian v. Kewal Ahir

1979-08-07

SHIVANUGRAH NARAIN

body1979
Judgment Shivanugrah Narain, J. 1. This application is directed against the order dated 5th August, 1978 of the 3rd Additional District Judge, Arrah, by which he has rejected the contention of the appelb. nt before him that the appeal before him had abated in view of the provisions of Seciton 4 (c) of the Bihar consolidation of Holdings and Prevention of Fragmentation Act, 1955 (hereinafter referred to as the Act) and directed the parties to come ready for hearing of the appeal on the date fixed. In my opinion, the application must be allowed because the learned Additional District Judge should have held that the appeal of the suit out of which it arose had abated in view of the provisions of Sec.4 (c) of the Act and by his wrong decision on the point he has assumed a jurisdiction to decide the appeal which he did not possess. 2. The relevant facts are these : The appeal before the Additional district Judge arose out of a suit for redemption which had been decreed by the trial court and the defendants 3rd party were the appellants before the learned Additional District Judge. The plaintiff-respondent had brought the suit for redemption of two mortgage deeds dated 1st July, 1945 and 15th June, 1951 both having been executed by Budhu Mian in favour of Devi Dayal singh in respect of celain lands situate in village saidanpur in the district of Shahabad on the allegations that the mortgagee had sold the mortgaged lands along with other lands to him by a registered sale-deed dated 12th september, 1951 for a consideration of Rs.2000/- and that he had tendered the mortgage amount at first to the original mortgagee Devi Dayal Singh, defendant 1st party and subsequently to the defendants 2nd party in whose favour by a registered deed dated 11th July, 1965 the original mortgagee had assigned the mortgagee, but both had refused to accept the same and, thereupon, he had deposited the mortgage money under section 73, T. P. Act and still the defendants 2nd party hud not delivered possession to him over the lands mortgaged which were in their possesion. The plaintiff prayed for an adjudication that he was entitled to a decree of redemption in respect of the suit lands and for recovery of possession therefore and mesne profits for the year 1967 and the period between the date of the institution of the suit and recovery of possession. The suit was contested by some of the defendants 3rd party who were the heirs of the mortgagor Budhu Mian. Their principal defence was that the sale deed in favour of the plaintiit was a sham transaction executed with a view to save the properties from different creditors and, the plaintiff had, therefore, no right to redeem the mortgages. The plea of defendants 2nd party was substantially the same and they further denied that the plaintiff had even tendered the mortgage money. 3. It is not in dispute now that a notification under section 3 of the act has been issued in respect of the area in which the suit lands lie and that consolidation operations are going oa in that area. That being so, in my opinion, the suit out of which the appeal arode had clearly abated in view of the provisions of Sec.4 (c) of the Act. According to Sec.4 (c), so far as it is relevant, "every suit. . . . . in respect of declaration of rights or interest in any land lying in the area (to which the notification under section 3 relates)or for declaration or adjudication of any other right in regard to which proceeding can or ought to be taken under the Act, pending before any court or authority whether of first instance or of appeal, reference or revision, shall, on an order being passed in that behalf by the court or authority before whom such suit or proceeding is pending stand abated. " if, therefore, the suit out of which the appeal arose was a suit in respect of the declaration of right or interest in land, there can be no question that the suit stood abated after an order to that effect is passed. 4. In my opinion, a suit for redemption and consequent recovery of possession of the mortgaged lands and mesne profits thereof is essentially a suit in respect of declaration of rights or interest in land. Sec.60, transfer of property Act, 1882, provides that a suit for redemption is a suit to enforce the right to redeem. 4. In my opinion, a suit for redemption and consequent recovery of possession of the mortgaged lands and mesne profits thereof is essentially a suit in respect of declaration of rights or interest in land. Sec.60, transfer of property Act, 1882, provides that a suit for redemption is a suit to enforce the right to redeem. In Ram Adhar Singh V/s. Ramroop Singh ( AIR 1968 SC 714 ), the Supreme Court held that the expression "every suit and proceeding in respect of rights or interest in any land", are comprehensive enough to take in a suit for possession of land because before a claim for possession is accepted, the court will have necessarily to adjudicate upon the rights or interest of the plaintiff in respect of the disputed properties taking into account the claim of the opposite party. On a parity of reasoning it must be held that if the right to redeem a mortgage in respect of lands is a right or interest in the lands mortgaged, the expression "every suit and proceeding in respect of the declaration of rights or interest in any land" in section 4 (c) of the Act is comprehensive enough to take in a suit for redemption of a mortgage in respect of lands because before a claim for redemption is accepted the court will have necessarily to adjudicate upon the right of the plaintiff to redeem the mortgage in respect of the lands. 5. Now there can be no question that the right to redeem a mortgage in respect of lands is a right or interest in the lands mortgage, it is well settled that in India the interest which remains in a mortgagor, whatever be the form of the mortgage, is a legal interest in the property mortgaged and what is transferred to the mortgagee is not an absolute interest. Before the due date of payment of the mortgage money, the mortgagor has a legal interest in the property mortgaged and after that he has the legal right of redemption given him by Sec.60 of the T. P. Act, 1882. And in each case he retains a legal interest in the property. See the decision of the Judicial committee of the Privy Council in Ram Kinkar Banerjee V/s. Satya Charan Srimati (66 Indian Appeals page 50 ). And in each case he retains a legal interest in the property. See the decision of the Judicial committee of the Privy Council in Ram Kinkar Banerjee V/s. Satya Charan Srimati (66 Indian Appeals page 50 ). Sec.60 of the T. P. Act, 1882, so far as it is relevant, runs thus : -"60. Right of mortgage to redeem.- At anytime after the principal money, has become due, the mortgagor has a rights, on payment or lender, at a proper time and place of the mortgage-money, to require the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged properly, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to retransfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished : "provided that the right conferred by this section has not been extinguished by act of the parties or by decree of a court. "the right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption. . . . . . . . . . . . " Thus, a right to redeem means the right of the mortgagor to have the mortgaged property retransferred to him or to his nominee or to obtain in acknowledgement in writing from the mortgagee that any right transferred to the mortgagee has been extinguished and in a case where the mortgagee is in possession of the mortgage money to have the possession thereof delivered to him. Such a right in respect of the property mortgaged is undoubtedly and manifestly a right or interest in the said property. It follows, therefore, that a suit for redemption of a mortgage in respect of a land specially in which there is a prayer for recovery of possession of the mortgaged land is a suit covered by Sec.4 (c) of the Act. 6. It follows, therefore, that a suit for redemption of a mortgage in respect of a land specially in which there is a prayer for recovery of possession of the mortgaged land is a suit covered by Sec.4 (c) of the Act. 6. I am fortified in this conclusion by the observation in Jagernath dubey V/s. Ram Kripal Tiwary (Civil Revision no 1481 of 1971, disposed of on 19th March, 1979 in which a learned single Judge of this Court while holding that the suit for redemption of a mortgage bond after a declaration that the auction sale with regard to the suit land was null and void was not covered by Sec.4 (c) of the Act, observed "therefore, if it was only a suit for recovery of possession after redemption of mortgage bond, then it would have been covered under section 4 (c) of the Consolidation Act. The present suit is a simple suit for recovery of possession after redemption of the mortgage lands and for means profits and is, therefore, clearly covered by Sec.4 (c)of the Act. 7. In my opinion, once it is held that the suit is in respect of, declaration of rights or interest in any land lying in the area in which the consolidation operations are going on, the suit is one covered by Sec.4 (c) of the act. The expression in regard to which proceedings can or ought to be taken under this Act construed according to the rules of grammer qualifies the proximate substantive any other right and not also the previous antecedants "in respect of declaration of rights or interest in any land lying in the area" occurring in Sec.4 (c) of the Act. According to the rules of gramer, the qualifying words, phrases and clauses are applied to the antecedant immediately proceeding. See the decision in Mahadeolal Kanodia V/s. Administrator General of West bengal ( AIR 1960 SC 936 at 939) and also the decision in Irrawady Fletila Co V/s. Bugwan Das (ILR 18 Calcutta 620 Privy council at page 627 ). There is nothing in the context which requires that those qualifying words in regard to which proceedings can or ought to be taker, in this Act" should qualify the expression "in respect of declaration of rights or interest in any land. There is nothing in the context which requires that those qualifying words in regard to which proceedings can or ought to be taker, in this Act" should qualify the expression "in respect of declaration of rights or interest in any land. It is true, as was pointed out in Gorakh Nath dubeys case ( AIR 1973 SC 2451 ) with respect to Sec.5 (2) of U. P. Consolidation of Holdings Act 1954 which corresponds to Sec.4 (c) of our Act," the whole object of this provision of the Act was to remove from the jurisdiction of ordinary civil and revenue courts, for the duration of the consolidation operations all disputes which could be decided in the course of consolidation proceedings before special courts governed by special procedure. But this object does not require that we should read the clause in regard to which proceedings can or ought to be taken under this Act as governing the previous antecedant in respect of declaration of right or interest in any land. there can be no question that the consolidation authorities have to adjudicate upon the rights or interest in any land lying in the area in which consolidation operations are in progress. They have to prepare up to-date record of rights of the lands before consolidation- vide Sec.8 of the Act. They have to prepare register of lands under section 9 of the Act showing the name of the raiyat and the particulars of lands held by him etc. Under section 10 they have to decide disputes regarding correctness and nature of the entries and the records prepared by them. Under section 11 (4) (vi) the draft scheme notified has to contain the encumbrances, if any, to any plot comprised in the existing holding of any raiyat As a matter of fact, adjudication upon rights or interest in land is inherent in the consolidation of holdings. Before the holdings can be consolidated the persons who have an interest in the holding have to be ascertained. It is not necessary to provide specifically that the exclusion shall be only with regard to suits in respect of declaration of right or interest in lands which can be adjudicated upon in the consolidation proceedings by the authorities under the Act. It is not necessary to provide specifically that the exclusion shall be only with regard to suits in respect of declaration of right or interest in lands which can be adjudicated upon in the consolidation proceedings by the authorities under the Act. 8 Further, it cannot be said that a suit for redemption is not a suit in respect of declaration of rights or interest, in land in regard to which proceedings can be taken under tne Act. As I have stated, the consolidation authorities have under section 11 (4) (vi) to enter in the draft scheme the encumbrances, which expression includes mortgage, if any, to any plot comprised in a plot in the existing holdings of any raiyat. Under section 12, any person, whose right or interest is substantially prejudiced or affected by the draft consolidation scheme, or who disputes the propriety and correctness of the entries in the draft scheme, may file objection before the authorities which has to be decided by them in accordance with the procedure laid down under the Act. The question whether there is a subsisting mortgage in respect of any land within the area and as to who is the mortgagor or the mortgagee have necessarily to be decided by the authorities under the Act. In a suit for redemption, the court necessarily has to decide whether there is a subsisting mortgage in respect of the land which is the subject-matter of the suit and whether the person claiming the right to redeem is the mortgagor or his legal representative or assignee. The present suit can only be decreed after the court has adjudicated that the plaintiff is the purchaser of the equity of redemption and that the mortgage subsists. These questions the consolidation authorities certainly have the power to decide. 9. It may be that the consolidation authorities may not decide whether payment under the mortgage has become due and the right to redeem has accured and may not, therefore, pass an order of redemption. But even assuming that they have no such power, a suit for redemption does not cease to be a suit in respect of declaration of right or interest in land which the consolidation authorities arc competent to adjudicate upon. The words used in section are "suits in respect of declaration of rights or interest" and not suit for declaration of right or interest (emphasis supplied ). The words used in section are "suits in respect of declaration of rights or interest" and not suit for declaration of right or interest (emphasis supplied ). If the suit involves declaration of any right or interest in any land which the consolidation authorities have power to adjudicate upon, it is one covered by Sec.4 (c) of the Act even though the precise relief asked for in the suit may be one which the consolidation authorities may not have power to grant. It would not be a suit for the declaration of a right which the consolidation authorities have the power to declare, but it will be suit connected with and, therefore, in respect of declaration of right or interest in land in regard to which proceedings can be taken under the Act, i e. which the consolidation authorities have the power to adjudicate upon. The entire object of the consolidation operations would be frustrated if the consolidation authorities were to hold that there is a subsisting mortgage in respect of any land, and the civil courts were permitted to hold to the contrary during the continuance of the consolidation proceeding. If it were to be held that only that suit is covered by Sec.4 (c) of tne Act the precise relief asked for in which can be granted by the consolidation authorities, even a suit for recovery of possession of the land can not be held to abate under section 4 (c) because no power has been conferred upon the consolidation authorities to make an order for recovery of possession of an unconsolidated holding. But it is well settled that a suit for recovery of possession of land is covered by section 4 (c) of the Act. See the Bench decision of this Court in Bijali Thakurs case (1977 PLJR 410) which is based upon the Supreme Court decision in chattar Singhs case ( AIR 1975 SC 1499 ). 10. The learned counsel appearing on behalf of the opposite parties contends that the suit cannot be held to have abated as the main point of dispute in the suit, namely, whether the sale-deed in favour of the plaintiff was a sham transaction or a valid and operative document, cannot be decided in the course of a consolidation proceeding by the consolidation authorities as the question of validity of the sale-deed could not gone into by them. I am unable to agree. In Gorakh Nath Dubeys case (supra) which was relied upon by the learned Advocate for the opposite parties, the Supreme Court held that the claim that the sale-deed was invalid, inoperative and void could be adjudicated upon by the consolidation authorities and, therefore, the suit for such a declaration would abate. Of course, in that case it was observed that "where there is a document the legal effect of which can only be taken away by setting aside or its cancellation, it can be urged that the consolidation authorities have no power to cancel the deed". But in the present case not only there is no prayer for cancellation of a deed, but if the case of the defendants that the sale-deed in question was a sham transaction is accepted, the sale deed would be void and not merely voidable and, therefore, the defendants case that the sale-deed was invalid and void could be adjudicated upon by the consolidation authorities. The decision of the supreme Court, therefore, not only does not support the contention that the dispute could not be adjudicated upon by the consolidation authorities but negatives it. 11. Thus, the conclusion is irresistible that the present suit in respect of declaration of right or interest in land and as the lands admittedly lie in the area in respect of which a notification under section 3 of the Act is in force, there can be no escape from the conclusion that the suit is covered by section 4 (c) of the Act and must abate in view of its clear and explicit language. And I hold accordingly. 12. I, accordingly, allow the application, set asside the impugned order dated 5th August, 1978 of the learned Additional District Judge, Arrah and hold that the Title Appeal no.217 of 1971 before the learned Additional district Judge as also the Title Suit no.120 of 1967 in the Court of Munsif, arrah stand abated. There will be no order as to costs.