Tileshwar Singh v. Suresh Prasad Singh — 1999 DIGILAW 846 (PAT)

Judgment P.K.Deb, J. 1. This revision petition has been preferred against the order dated 21.11.1998 passed by the 4th Additional District Judge, Vaishali at Hazipur debarring the grant of ad-interim injunction by the Munsif lst, Hazipur in Title Suit No. 60 of 1996. Such refusal has been recorded in the Misc. Appeal No.14 of 1998 preferred by Opposite party No.2. 2. The facts of the case run in a narrow compass. The disputed land stands over plot No.265 Khata No. 398 of Hazipur measuring 1 katha out of which 5 1/2 Dhurs are only of real dispute. The lands belonged to defendant Opposite party No.1 Suresh Prasad Singh who sold different portions of same plot to different persons. According to the Plaintiff-petitioner he mortgaged 5 1/2 dhurs with shop thereupon to the plaintiffs father vide registered mortgaged bond dated 23.6.1970 and put him in possession. The mortgaged bond was for a sum of Rs.3000/- and it was a usufructuary mortgage for specific period of five years. On the death of the plaintiffs father plaintiff petitioner came in possession. Admittedly the defendant No.1 executed a Mahadanama prior to the mortgage in the year 1969 in favour of defendant No.2. On the basis of that Mahadanama suit for specific performance being Title Suit No.57 of 1971 was filed by defendant No.2 against defendant No.1. The suit was ultimately decreed. In that Mahadanama admittedly the plaintiff was a witness and in the suit also he deposed and deposited his mortgaged bond and the suit was decreed and appeal was preferred by the defendant No.1 but the appeal was also dismissed. Then the defendant No.2 put the decree in execution in execution case No.3 of 1986 and in that execution case sale deed was executed by the Court in favour of the defendant No.2 on 19.1.1987 on behalf of defendant No.1. Then the decree-holder defendant No.2 sought for delivery of possession. The plaintiff then filed the present suit being Title Suit No.60 of 1996 seeking a declaration that defendant No.1 had no right to take possession over disputed 5 1/2 Dhurs of land without redeeming his subsisting mortgage deed and the mortgagee plaintiff cannot be bound by a decree passed in Title Suit No. 57 1971 or the appellate decree passed in First Appeal No.27 of 1986. A prayer for permanent injunction was also made restraining the defendant No.2 from taking over possession over 5 1/2 Dhurs of land which was mortgaged in favour of the plaintiff petitioner by the defendant No.1. Objection was filed and according to the defendants the money was already paid to the plaintiff of the mortgaged bond on a photo copy of the registered mortgaged bond but that was disbelieved by all the Courts and a temporary injunction was granted in favour of the plaintiff petitioner. Against that appeal was preferred by the defendant no. 2 and the appellant Court reversed the order of injunction holding that the plaintiff was a subsequent mortgagee while Mahadanama was executed long before the mortgaged bond and it was within the knowledge of the plaintiff, and, as such, balance of convenience was held to be not in favour of the plaintiff nor the primafacie case and, as such, injunction order has been reversed. On a revision being preferred by the plaintiff petitioner the same was once heard by this Bench in the absence of the petitioners counsel as he was not found in the Court and the Revision petition was disposed of with a direction that the Opposite party shall deposit the Bharna amount by tendering it to the plaintiff in the Court below within three weeks next and after such tendering the Opposite party shall be at liberty to take possession through execution proceeding but by filing a restoration petition the order was passed by this Court was kept in abeyance and the revision petition has again been heard at the admission stage itself. 3. Mr. Dvivedi, Senior counsel appearing for and on behalf of the plaintiff petitioner has submitted that admitting the whole position the legal position remains that the plaintiff being the mortgagee over a portion of the land decreed the same portion cannot be taken into possession by the decree-holder unless and until the mortgaged bond is redeemed on payment of Bharna amount. It should be mentioned here that on the previous order being passed by this Court on 24.3.1999 the decree-holder Opposite party who was defendant in the suit had already deposited the Bharna amount but the plaintiff had refused to accept the same on being tendered. Mr. Dvivedis submission is wholly on the super technicality of the legal provisions. It should be mentioned here that on the previous order being passed by this Court on 24.3.1999 the decree-holder Opposite party who was defendant in the suit had already deposited the Bharna amount but the plaintiff had refused to accept the same on being tendered. Mr. Dvivedis submission is wholly on the super technicality of the legal provisions. He wants to take advantage on behalf of the plaintiff petitioner to retain his possession until a redemption suit is filed and decreed in favour of the decree-holder. Mr. Dvivedi has fairly submitted that he has no grievance about the lands decreed besides his 5 1/2 Dhurs wherein a shop house was situated and possessed by the plaintiff on the basis of Bharna deed i.e. the mortgaged bond. The legal position remains on the factual aspect of the present case that the plaintiff petitioner entered into the mortgaged bond with the full knowledge that the parties had already been agreed upon for sale by the original owner in favour of the decree-holder defendant No.2. He was a witness to the mortgaged bond. He deposed in that suit but he preferred not to appear in that suit as an intervenor. Mr. Dvivedis contention is that it was the duty of the plaintiff of that suit for specific peformance to implead the plaintiff petitioner in that suit to get an effective decree for possession but when it has not been done the decree-holder shall have to suffer till the mortgaged bond is redeemed. The plaintiff petitioner being a mortgagee cannot have any exclusive right over the mortgaged land rather he has a charge over it alongwith possession being a usufructury mortgage till the mortgaged amount is repaid. In the present circumstances it appears that the amount has already been tendered to the plaintiff petitioner but he has refused to accept the same and, as such, the same has been deposited in the Court. The plaintiff petitioner can accept the same and return the mortgage bond. In the present circumstances it appears that the amount has already been tendered to the plaintiff petitioner but he has refused to accept the same and, as such, the same has been deposited in the Court. The plaintiff petitioner can accept the same and return the mortgage bond. If he feels that he is entitled to much more amount towards interest although, in my view, being an usufructury mortgage he might not be entitled for any amount towards interest but even if he is entitled to any interest he can have claimed for that amount and then release the mortgaged bond but he cannot frustrate the decree-holder in this way and retain the possession till a redemption suit is filed. The period of mortgage has already been over in the year 1975 but the petitioner did not come up for any suit for foreclosure rather he is coming up with a suit for injunction to retain the possession although he did not get himself impleaded in the earlier suit. The tendering of the amount of mortgage is permissible under Section 83 of the Transfer of property Act and such tendering has already been made from the side of the defendant No.2, and, as such, it remains the duty of the plaintiff either to accept the amount and release the mortgage bond and if he feels that he is entitled for some more amount he can claim so in the Court itself and it has been fairly submitted from the side of the counsel for the Opposite party that his client is ready to pay more towards interest if the same is claimed from the side of the plaintiff-petitioner. A person who has got a decree after fighting for several years he cannot be debarred on such pleas to get the fruit Of the decree. It has rightly been held by the learned Court below that the balance of convenience is definitely in favour of the Opposite party and not the plaintiff petitioner. A person who has got a decree after fighting for several years he cannot be debarred on such pleas to get the fruit Of the decree. It has rightly been held by the learned Court below that the balance of convenience is definitely in favour of the Opposite party and not the plaintiff petitioner. Considering the peculiar circumstances of the case and on equitable relief to be granted by a Court of law it is ordered that the Opposite party shall be entitled to take immediate possession of his decreetal land save and except 5 1/2 Dhurs and the money tendered by the Opposite party shall be construed as a tendering or deposit under Section 83 of the Transfer of Property Act and the Court where such deposit has already been made should finalise the matter and return mortgage bond etc., within a period of three months from this date and after that the Opposite party shall be entitled to take rest of the decreetal land i.e. 5 1/2 dhurs of land. The plaintiff petitioner cannot stand as a barrier when the mortgage money had already been deposited in execution of the decree with regard to 5 1/2 dhurs of land after three months is elapsed from this date. 4. In the facts and circumstances of the case, no order as to costs.