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2001 DIGILAW 1105 (PNJ)

Nand Singh v. Kartar Kaur

2001-10-08

AMAR DUTT

body2001
JUDGMENT Amar Dutt, J. - This plaintiffs appeal seeks to challenge the judgment of Additional District Judge, Faridkot by which the defendants appeal against the judgment and decree dated 13.3.1984 of Additional Senior Sub Judge, Moga was partly accepted and declaration given in favour of the plaintiff to the effect that he had become the owner of the land in dispute, was reversed. 2. The plaintiff had filed a suit asserting that the land in dispute was originally owned by Kehar Singh, Karam Singh, Raghbir Singh (husband of defendant No. 4) and defendant No. 5. It was allotted to them in consolidation in lieu of the land originally mortgaged with Nand Singh. It is further alleged that Kartar Kaur defendant No. 1 claims to have purchased the land from defendants No. 2 and 3 which fact is not correct and the sale in her favour is not valid. The plaintiff, it was submitted, had acquired ownership rights on account of the fact that the land had not been redeemed within the prescribed period of limitation. In the alternative, the plaintiff had sought to protect his possession on the ground that he was a tenant at will of the suit land according to the revenue records. 3. The suit was contested by defendants No. 2 and 3 asserting that they were in hissadari possession of the land and had sold it vide a registered sale deed dated 24.11.1981 for Rs. 25,000/- to Kartar Kaur, defendant No. 1. They also asserted that the possession of the plaintiff was not that of a mortgagee but one of a mere tenant. Kartar Kaur, defendant No. 1 also took the same plea and submitted that she had no notice of any defect in title of the aforesaid defendants. According to her also the possession of the plaintiff was that of a tenant and not of a mortgagee. 4. On filing the replication the following issues were framed by the trial court : 1. Whether the plaintiff was mortgagee and had acquired the rights of ownership by passage of time ? OPP 2. Whether the plaintiff is entitled to declaration prayed for ? OPP 3. Whether the plaintiff is entitled to permanent injunction as alleged ? OPP 4. Whether defendant No. 1 is bona fide purchaser of suit land ? If so to what effect ? OPD 5. Relief. 5. OPP 2. Whether the plaintiff is entitled to declaration prayed for ? OPP 3. Whether the plaintiff is entitled to permanent injunction as alleged ? OPP 4. Whether defendant No. 1 is bona fide purchaser of suit land ? If so to what effect ? OPD 5. Relief. 5. The trial court found that the plaintiff was entitled to a declaration as prayed for as there was no evidence to hold that the land had been redeemed. Issues No. 1 and 2 were decided in favour of the plaintiff and while disposing of issue No. 4 the trial court came to the conclusion that defendants No. 2 and 3 had no subsisting right, therefore, no valid title had been acquired by Kartar Kaur. Suit of the plaintiff was decreed. Kartar Kaur defendant No. 1 preferred an appeal against the judgment and decree of the trial court. The Additional District Judge reversed the findings in relation to issues No. 1 and 2. However, the plaintiff was found to be in possession, and it was ordered that he be not dispossessed except in due course of law. 6. I have heard the learned counsel for the parties and have gone through the record. 7. On behalf of the appellant, the judgment and decree of the lower appellate Court were sought to be assailed firstly on the ground that no redemption of mortgage can take place except by moving a petition under section 4 of the Redemption of Mortgages (Punjab) Act, 1913 (hereinafter referred to as "the Act"). It is also submitted that pleadings in the present case were at variance with the proof as no question had been put to the plaintiff regarding property having been redeemed and, therefore, the judgment and decree had to be set aside and the suit decreed holding that the appellant had become owner of the land in dispute by adverse possession. 8. I have carefully considered the arguments advanced by the learned counsel for the parties but find myself unable to accept either. 9. In this case, a suit had been filed by Nand Singh for a declaration that he became owner of the land in dispute by lapse of time as the mortgage executed in his favour had not been redeemed for more than 30 years. 9. In this case, a suit had been filed by Nand Singh for a declaration that he became owner of the land in dispute by lapse of time as the mortgage executed in his favour had not been redeemed for more than 30 years. The lower appellate Court had found as a fact that there was sufficient evidence on record to show that the suit land had been duly redeemed and documents in relation to this fact were available as Exhibits D2 and D3. It had consequently reversed the findings on issues No. 1 and 2. In appeal to the reversal this finding is sought on the ground that in law no redemption of mortgage could take place except by filing an application under Section 4 of the Act. The provisions of Section 4 of the Act relied upon by the counsel for the appellant read as under : "Petition for redemption, verification, Deposit and Particulars to be contained in petition. - The mortgagor or other person entitled to institute a suit for redemption may, at any time after the principal money becomes payable and before a suit for redemption is barred, present a petition to the Collector applying for an order directing that his mortgage be redeemed, and where the mortgage is with possession that he be put in possession of the mortgaged property. The petition shall be duly verified in the manner prescribed by law for the verification of plaints, and shall state the sum which the petitioner declares to the best of his belief to be due under the mortgage. The petitioner shall at the same time deposit such sum with the Collector. The petitioner shall state in his petition such particulars and file therewith such documents as may be prescribed." 10. A perusal of the aforesaid Section indicates that the same empowers a mortgagor to move an application for redemption in cases where the mortgagee is not conceding this right to him. There is nothing in law which prevents the mortgagor from redeeming a mortgage by paying the amount due thereon to the mortgagee out of the Court and taking back the possession of his land. The argument of the appellant cannot be sustained and has to be rejected. 11. With regard to the second submission regarding there being variance between the pleadings and proof, the same to is not sustained by the evidence on record. The argument of the appellant cannot be sustained and has to be rejected. 11. With regard to the second submission regarding there being variance between the pleadings and proof, the same to is not sustained by the evidence on record. There is much variance an as such the same too has been rejected. 12. For the reasons recorded above, this appeal fails and is dismissed. Appeal dismissed.