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1999 DIGILAW 1154 (RAJ)

Sanware v. State of Rajasthan

1999-09-09

J.C.VERMA

body1999
JUDGMENT 1. :- One Raghunath is said to have mortgaged certain land as detailed in the writ petition and also in the impugned orders with Alam Chand son of Chhoga Lal Mahajan of Beer on 2.10.1906. The mortgagee was put into possession. The mortgagor had died issue-less. The mortgagee's rights were later on transferred in favour of the present petitioners. 2. The plaintiffs, present private respondents, claiming themselves to be the heirs of the deceased Raghunath had filed an application under section 3 of the Ajmer Merwara Redemption of Mortgage Regulations, 1928 (here-in-after referred to as 'the Regulations of 1928') against the petitioner for redemption of mortgaged land. The application was opposed by the present petitioners. The present petitioners had also challenged the right of the plaintiffs to file the application for redemption. Issues were framed in this regard by the authorities dealing under the Regulations of 1928. Ultimately the redemption was ordered vide order dated 15.12.1970, copy of which is attached as Annexure-4 to the writ petition. 3. During the pendency of the redemption under the Regulations of 1928, the non-petitioners had also filed another suit for declaration, injunction and possession against the petitioners in the court of Assistant Collector, Ajmer. A copy of the complaint is attached as Annexure-6. 4. As many as 11 issues were framed 'in the suit. However, issue Nos. 1 to 4 were decided on the basis of the judgment delivered by the Assistant Collector in the redemption proceedings under the Regulations of 1928. The suit was partly decreed on 19.3.1971 vide Annexure-8. The first appeal was filed by the petitioners before the Revenue Appellate Authority, Jaipur, which was also rejected on 18.10.1974 vide Annexure-9. The second appeal filed before the Board of Revenue Ajmer against both the orders of redemption and declaration were also dismissed vide judgment dated 26.10.1978. The petitioners still tried to get the order of the Board of Revenue reviewed which was also rejected on 14.3.1986, copies of these orders have been attached as Annexures 10 and 11. The petitioners are aggrieved against the orders Annexures 8, 9, 10 and 11 which is a concurrent finding of fact. 5. The petitioners still tried to get the order of the Board of Revenue reviewed which was also rejected on 14.3.1986, copies of these orders have been attached as Annexures 10 and 11. The petitioners are aggrieved against the orders Annexures 8, 9, 10 and 11 which is a concurrent finding of fact. 5. The only contention raised by the petitioners in the present case is that despite the issue having been framed by the Assistant Collector in Annexure-8 in regard to locus strand of the plaintiffs to file the suit and issues 1 to 4, no finding has been given by the courts below, the issues Nos. 1 to 4 as in Annexure-8 are reproduced as under: 1. Whether Raghunath alias Raghu mortgaged his half share of khudkasht cultivatory rights in suit lands as alleged in para 1 of the plaint ? 2. Whether defendants Nos. 1 and 2 cultivated suit lands as tenants of defendant No.3 and they have become khatedar tenants of the suit lands ? 3. Whether the rights of personal cultivation are subsisting even on the enforcement of Rajasthan Zamindari and Biswedari Abolition Act, 1959. If so what is its effect as the present suit ? 4. Whether the plaintiffs are heirs of successors of the mortgagee Shri Raghunath along with Dula, Bhala, Sanwal, Pokhar and are they entitled to redeem half share to the lands in dispute ?' 6. This contention of the petitioner cannot be accepted for the reasons that in the judgment Annexure-8 it has been specifically observed that as agreed by the parties so far issue Nos. 1 to 4 are concerned, the findings given by the authority in the decision dated 15.12.1970 while exercising the power under Regulations of 28 are binding and there was no necessity to go into the matter afresh in view of the finding given in the order dated 15.12.1970. Being confronted by the present situation, the counsel for the petitioner states that even if the concession was given by or on behalf of the petitioner in regard to the fact that the finding given on issue No.1 to 4 in the judgment dated 15.12.1970 shall be kept intact, this concession is beyond the scope of law and not binding on the petitioners for the reasons that the authority under the Regulations of 1928 could only decide the matter if the facts or claims are admitted. This contention of the petitioner is also liable to be rejected in view of Section 10 and 11 read with Section 7(b) of the Regulations of 1928 which reads as under:- 7. If the mortgagee appears and the petitioner does not appear when the petition is called on for hearing, the Collector, (a) ..... (b) if the mortgagee admits the claim, make an order (i) that the mortgage be redeemed; (ii) if the mortgage is with possession, that the mortgagor be put in possession of the mortgaged property as against the mortgagee; (iii) that the mortgagee deposit with the Collector the mortgage-deed, if any, if then in his possession or power, and that it be delivered to the petitioner; and (iv) that, subject to the mortgage-deed, if any, being so deposited by the mortgagee, the sum in deposit be paid to him; Provided that no such order shall be made inconsistent with any condition of the mortgage whereby a season or period of the year is fixed for redemption or for surrendering possession;' 10. If the mortgagee raises objection on any ground other than the amount of the deposit, or if the petitioner is not willing to pay the sum demanded by the mortgagee, the Collector may either (a) for reasons to be recorded dismiss the petition, or (b) make a summary inquiry, regarding the objection raised by the mortgagee or regarding the sum due.' 11. If on inquiry regarding any objection so raised by the mortgagee the Collector is of opinion that redemption is barred or that there is sufficient cause for not proceeding further with the petition, he shall, unless he dismisses the petition under section 12, make an order as laid down in clause (b) of Section 7. 7. From the above said narration and provisions of law, it is clear that the objections were raised by the present petitioners before the authority regarding redemption under Regulations of 1928 and inquiry was made by such an officer as has been empowered under section 10 and 11 and redemption order was made in regard to the said property which was quite lawful. The contention of the petitioner that under the Regulations of 1928, the order of redemption could have been passed only on the admission or concession has no merit for the reason that even in the contentious case, the authority was bound to pass a redemption order as per law.All the three courts have already given a concurrent finding and in view of the above said narration of facts and law, the writ petition has no merits and is dismissed.Petition Dismissed. *******