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2000 DIGILAW 75 (HP)

BHADAR SINGH v. JUMI

2000-04-05

SURINDER SARUP

body2000
JUDGMENT Surinder Sarup, J.—This appeal has been preferred by the plaintiff against the judgment and decree of the Court of the learned Additional District Judge, Kullu, dated 19.11.1992. By the said judgment, the appeal filed by the defendant-respondent has been accepted and reversing the judgment and decree of the trial court, namely the Senior Sub-Judge, Lahaul & Spiti District at Kullu, dated 16.7.1988 whereby the suit of the plaintiff-appellant was decreed, the said suit has been dismissed. Hence, the present second appeal. 2. The plaintiff-appellant had filed a suit for declaration to the effect that he is owner in possession of the suit land measuring 8 Bighas and 12 Biswas to the extent of 1/2 share i.e. 4 Bighas and 6 Biswas by way of adverse and hostile possession, matured into title, to the knowledge of the defendant-respondent and the order of the Tehsildar, Kullu, dated 27.1.1986 is void, illegal and without jurisdiction. Relief of declaration was also claimed to the effect that right of redemption of the defendant-respondent had been foreclosed by the lapse of 30 years period of limitation prior to filing of the application for redemption in the Court of Tehsildar, Kullu. Permanent prohibitory injunction thereby restraining the defendant-respondent from interfering with the possession of the plaintiff over the suit land was also prayed for in the suit by the plaintiff-appellant. 3. According to the plaintiff, defendant Smt. Jumi was owner of Khasra Nos. 1575, 1359 and 1484, measuring 8 Bighas and 12 Biswas to the extent of 1/2 share, measuring 4-6-0 Bighas. She mortgaged her whole share in the suit land to the father of the plaintiff by the name of Tandu. This mortgage was with possession for a consideration of Rs. 500/- and in consequence thereof, a mortgage deed was also executed on 8.1.1951 registered on the next day i.e. 9.1.1951. It was further pleaded by the plaintiff that possession of the suit land was also delivered to his father Tandu (since deceased), but the defendant paid mortgage money of Rs. 500/- to the plaintiffs father in the year 1952. But, however, the possession of the suit land was not returned to the defendant, thus its possession by the plaintiffs father remained open, hostile and adverse since the year 1952. 500/- to the plaintiffs father in the year 1952. But, however, the possession of the suit land was not returned to the defendant, thus its possession by the plaintiffs father remained open, hostile and adverse since the year 1952. After his fathers death, the plaintiff came into possession of the suit land and has been in adverse possession thereof which has ripened into his valid title due to the efflux of time i.e. 12 years from the date of payment of mortgage money by the defendant. 4. Further the case of the plaintiff was that the suit land had been partitioned. However, by misrepresenting the facts, the defendant moved an application for correction of entries in the revenue record on 11.4.1983, but the same was subsequently withdrawn. Thereafter in the year 1984, defendant filed an application under the provisions of H.P. Relief of Agricultural Indebtedness Act for the redemption of mortgage without payment of any mortgage amount. According to the plaintiff, the defendant is estopped by her act and conduct from filing the above said application and the right of redemption should be deemed to have been foreclosed in as much as she remained silent about the possession of the mortgaged land in dispute till 7.3.1983. However, on the basis of wrong order of the Tehsildar, Kullu, she is interfering with the possession of the plaintiff over the suit land, giving rise to the filing of the suit by him. 5. In the written statement, the defendant-respondent took up the stand that the plaintiff is not in actual physical possession of the suit land, therefore, the suit for declaration and injunction is not maintainable. The order passed under Section 3(e) of the H.P. Relief of Agricultural Indebetedness Act has become final and conclusive as no appeal or revision was filed against it by the plaintiff. The plaintiff was stated to have no locus standi and cause of action to maintain the suit which was also stated to be not properly valued for the purposes of court fee and jurisdiction. It was stated in the written statement of the defendant-respondent that she had mortgaged the suit land to Tandu without possession and an entry to the effect that the mortgage was with possession to plaintiffs father Tandu was wrong. It was stated that in fact, the possession of the suit land remained with the defendant right from the beginning. It was stated in the written statement of the defendant-respondent that she had mortgaged the suit land to Tandu without possession and an entry to the effect that the mortgage was with possession to plaintiffs father Tandu was wrong. It was stated that in fact, the possession of the suit land remained with the defendant right from the beginning. It was denied that a sum of Rs. 500/- had been paid by her to the father of the plaintiff i.e. Tandu in the year 1952 as alleged. Further the case of the defendant in the written statement was that the application for correction of the revenue record was filed by her counsel without her permission. It was denied in the written statement that the defendant has caused any sort of interference with possession of the plaintiff, as alleged by him. 6. On the pleading of the parties, the following issues were framed:— (1) Whether the defendant paid the mortgage amount without taking delivery of the suit land back from Tandu? O.P.P. (2) Whether the plaintiff became owner of the suit land by adverse possession? O.P.P. (3) Whether there was a private partition between the co-sharers? If so whether the suit land was placed in exclusive possession of the plaintiff? O.P.P. (4) Whether the defendant was not a debtor under the definition of Himachal Pradesh Agricultural Relief and Indebtendness Act, 1976 and the order dated 27.1.1986 of Tehsildar Kullu is illegal and against law? O.P.P. (5) Whether the defendant is estopped by her act and conduct to challenge the plaintiffs suit? O.P.P. (6) Whether the suit for permanent injunction without possession is not maintainable? O.P.D. (7) Whether the jurisdiction of this Court is barred under Agricultural Indebtedness Act, 1976? O.P.D. (8) Whether the plaintiff has no locus standi and cause of action to maintain the suit? O.P.D. (9) Whether the suit property is under valued for the purposes of court fee and jurisdiction ? O.P.D. (10) Whether the suit is bad for non-joinder of other co-sharers? O.P.D. (11) Wheter the suit land was mortgaged without possession and redeemed on the appointed day i.e. 13.11.1975? O.P.D. (12) Relief. 7. Issues No. (1) and (2) were decided in the affirmative in favour of the plaintiff, while issue No. (3) was decided against him. O.P.D. (10) Whether the suit is bad for non-joinder of other co-sharers? O.P.D. (11) Wheter the suit land was mortgaged without possession and redeemed on the appointed day i.e. 13.11.1975? O.P.D. (12) Relief. 7. Issues No. (1) and (2) were decided in the affirmative in favour of the plaintiff, while issue No. (3) was decided against him. Issue No. (4) was decided in favour of the plaintiff, while issue No. (5) was decided against him, while issue No. (6) was decided against the defendant. Issues No. (7) to (11) were decided against the defendant. In view of these findings the suit of the plaintiff-appellant was decreed by the learned trial Court by judgment dated 16.7.1988 to the effect that a decree for declaration that the plaintiff has become owner in possession of the suit land to the extent of 1/2 share i.e. 4 Bighas and 6 Biswas, out of the total land measuring 8 Bighas and 12 Biswas was passed. In addition a decree for issuance of permanent prohibitory injunction thereby restraining the defendant permanently from interfering in the possession of the plaintiff over the suit land was also passed, Thereafter the defendant-respondent filed an appeal before the learned lower appellate Court which having been accepted by the Court of first appeal has resulted in the present second appeal being filed. 8. The learned counsel for the parties have been heard at length and the records of the case have also been perused. 9. The learned counsel for the appellant has referred to para-19 of the impugned judgment of the learned lower appellate Court wherein it has been stated that the proved case between the parties is that the suit land was mortgaged by defendant Jumi to the father of the plaintiff Shri Tandu for a consideration of Rs. 500/- vide document Exbt. PW-6/A, which in turn shows that the mortgage was with possession. It has also been stated therein that the Jamabandis Exbt. P-5 to Exbt. P-7 and the Girdwaries Exbts. P-8 and P-9 continuously show the plaintiff in possession to the extent of 1/ 2 share as a co-owner and on the other 1/2 share as a mortgagee in respect of the suit land. From this, it has been concluded therein that the mortgage qua the share of the defendant was with possession with Shri Tandu, father of the plaintiff. P-8 and P-9 continuously show the plaintiff in possession to the extent of 1/ 2 share as a co-owner and on the other 1/2 share as a mortgagee in respect of the suit land. From this, it has been concluded therein that the mortgage qua the share of the defendant was with possession with Shri Tandu, father of the plaintiff. Deriving support from these conclusions of the learned lower appellate court, the learned counsel for the appellant has submitted that there was a bar of limitation as per Section 3 of the Limitation Act, 1963. However, there is a great fallacy in this submission of the learned counsel. First no such ground has been taken in the grounds of appeal, nor even any substantial question of law has been formulated to that effect. All that is stated in ground No. 3 thereof is whether the right of defendant to redeem was lost and the application was barred by limitation. This is just a general and vague so called substantial question of law formulated by the appellant and no heed can be paid to it. Secondly, Section 3 of the Limitation Act creates bar of limitation to a suit which has been instituted after the prescribed period of limitation. In the present case, the suit was filed by the appellant and not by the respondent. Therefore, this submission is contrary to the factual position in the case. Moreover, the word "application" occurring in Section 3 of the Limitation Act has to be read alongwith the definition clause vide Section 2 which says that application includes a petition. Additionally, application in this context is referable to the third division of the schedule to the Limitation Act which provides for various periods of limitation in respect of applications in specified cases. For all these reasons, this argument of the learned counsel is absolutely misconceived. 10. The learned counsel for the appellant has then argued that there is no finding in the impugned judgment of the learned lower appellate Court regarding the plaintiff having become the owner of the suit land by lapse of time. Here again, no such ground has been taken in the present second appeal. So it cannot be allowed to be raised now. 11. Here again, no such ground has been taken in the present second appeal. So it cannot be allowed to be raised now. 11. Attention of this Court has been drawn by the learned counsel for the appellant to Section 60 of the Transfer of Property Act which provides for right of the mortgagor to redeem on payment or tender of the mortgage money and then to require the mortgagee to deliver the possession of the mortgaged property. In this context, the learned counsel has referred to para-14 of the impugned judgment, according to which PW-5 Hirde Ram has corroborated the version of the plaintiff regarding the payment of mortgage amount by the defendant. PW-6 Chet Ram, Reader of Tehsildar, Kullu has proved the documents Exbt. PW-6/A to Exbt. PW-6/K. PW-7 Niranjan Dass, petition writer has proved the application for correction moved by the defendant and the other application moved by her under the H.P. Relief of Agricultural Indebtedness Act. 12. However, the learned appellate Court has taken the view that by the order of the Tehsildar exercising the powers as Assistant Collector, 1st Grade, dated 27.1.1986 (Exbt. PW-6/C), the defendant was declared as a marginal farmer. On the basis of this, the conclusion in the impugned judgment is that it has been proved on record by admission of the plaintiff, his witnesses and the application Exbt. PW-6/A. that the defendant had paid the mortgage amount to Shri Tandu, the father of the plaintiff, in the year 1952 and the possession of the suit land remained with him and after his death with the plaintiff. But these bundle of facts, according to perception of the learned lower appellate court do not go to show that the plaintiff has acquired the title to the suit land by way of adverse possession. This is because in the instant case, the plaintiff asserted his adverse possession for the first time in the month of July, 1984 against the defendant in respect of the suit land vide his reply Exbt. PW-6/ J. Before that, he never raised any claim of possession of the suit land in a hostile and adverse manner, to the knowledge of the defendant, so as to constitute the ingredient of having perfected his title by adverse possession. 13. PW-6/ J. Before that, he never raised any claim of possession of the suit land in a hostile and adverse manner, to the knowledge of the defendant, so as to constitute the ingredient of having perfected his title by adverse possession. 13. In para-27 of the impugned judgment, the finding given is that the revenue record shows the plaintiff and defendant as co-sharers of the suit land. After paying back the mortgage amount by the defendant as indicated from the record, the position of the plaintiff or his father remained as co-sharer with the defendant. On these premises, the learned lower appellate Court has correctly interpreted the legal position, i.e. that the possession of a co-sharer is possession on behalf of all other co-sharers unless a complete ouster is pleaded and proved. This legal position, the plaintiff completely failed to prove, as correctly held by the learned lower appellate Court. 14. The above are the findings of fact based on appreciation of evidence by the learned lower appellate Court. No substantial question of law arises in the present case, much less the legal question whether the right of the defendant to redeem was lost and the application for redemption was barred by limitation, which has been formulated as a substantial question of law No. 3 alongwith the grounds of appeal and on the basis of which the appeal was admitted for a final hearing in this Court, in addition to substantial questions of law No. 1 and 2. But the facts and circumstances as have come on the record on the basis of the evidence which has been discussed in toto by the learned lower appellate Court, no substantial question of law arises in the present case. 15. The learned counsel for the appellant has placed reliance on some case law. He has first cited the case of P.K. Rarnachandran v. State of Kerala and another, 1998(1) SLJ 626. That was a case relating to condonation of delay under Section 5 of the Limitation Act and has no bearing on the facts and circumstances of the present case. He has next cited Ananthan Potti v. Krishna Pillai, AIR 1957 Trav-Co 145. He has first cited the case of P.K. Rarnachandran v. State of Kerala and another, 1998(1) SLJ 626. That was a case relating to condonation of delay under Section 5 of the Limitation Act and has no bearing on the facts and circumstances of the present case. He has next cited Ananthan Potti v. Krishna Pillai, AIR 1957 Trav-Co 145. In that case, it has been laid down that the question whether the possession of the mortgagee after the mortgage debt has been satisfied is adverse to the mortgagor or not, is always a question of animus or intention of the parties concerned. The whole of the circumstances have to be considered in order to find out whether the mortgagees in the case continued in possession as mortgagees or as owners in respect of the property. In the present case, the facts and circumstances as have come on the record as per the evidence go to show that the possession of the suit land by the plaintiff and before him his father, the original mortgagee, had not ripened into ownership and continued to be in the capacity of a mortgaged. Therefore, this ruling is also of no avail to the appellant. 16. The matter can be looked at from another angle also. On behalf of the respondent, my attention has been drawn to the statement of the plaintiff as PW-2 when he stepped into the witness box in support of his case. He has nowhere stated nor asserted his hostile possession or title on the suit land to the knowledge of the respondent, as can be made out from a perusal of his statement as PW-2. In this context, the learned counsel for the respondent has placed reliance on the case of Sankaran Parmeswara Pillay v. Sankaran Chandrasekharan Pillay and others, AIR 1974 Kerala 102, wherein it has been laid down that possession by a mortgagee whose mortgage has been discharged by the payment of mortgage money, does not by the mere act of extinguishment of the mortgage become adverse to the mortgagor. In the case of Pandya Vinodrai Ramrai v. Lavar Prabhudas Nathuram (deed) and others, AIR 1972 Gujarat 204, it has been laid down that it is always a question of intention, whether the person in possession of property is claiming a limited interest or a full interest by adverse possession or not and that intention is to be gathered and established by the evidence which may be adduced by the respective parties in support of the various contentions, and unless these questions are gone into and evidence led and appreciated in order to find out which contention of the respective parties is right, it is not open to the Court to say that such a suit is or is not maintainable. In Abdul Quadir (dead) by Lrs. v. Maimoona Khatoon (Smt) (dead) by LRs. and others, (i996) 3 SCC 500, it has been laid down that whether a person is in adverse possession of the suit property, is a finding of fact. 17. On the basis of these authorities, it has been rightly contended by the learned counsel for the respondent that on the basis of the evidence on the record, more particularly his own statement as PW-2, the appellant has not been able to prove his case regarding the adverse possession over the suit land. 18. In fairness to the learned counsel for the appellant, he has drawn my attention to the finding of the learned trial Court in para-19 of his judgment to the effect that the plaintiff can also be considered to have become owner of the suit land by lapse of time for the redemption of mortgage. This finding has not reversed by the learned lower appellate court, according to the learned counsel. In other words, what is sought to be argued is that the plaintiff has become the owner of the suit land by virtue of foreclosure of the right to redeem the mortgage by the respondent of the suit land. But this argument stands countered by the learned counsel for the respondent by inviting my attention to the contents of para-2 of the plaint, wherein no such plea has been raised. Indeed, it appears to be a case where this argument regarding the foreclosure is being raised for the first time in second appeal, which is not permissible under the law. Indeed, it appears to be a case where this argument regarding the foreclosure is being raised for the first time in second appeal, which is not permissible under the law. As rightly contended by the learned counsel for the respondent the appellant cannot be permitted to approbate and reprobate at the same time in the matter. 19. For the reasons recorded above, there is no merit in this appeal. The same is, therefore, dismissed, but without any order as to costs. Appeal dismissed.