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2001 DIGILAW 628 (PNJ)

Kundan Singh v. Kartar Singh (Dead) By LRs.

2001-05-31

K.C.GUPTA

body2001
JUDGMENT K.C. Gupta, J. - This regular second appeal is directed by the defendant against the judgment and decree dated 8.5.1980 whereby his appeal was dismissed by the Additional District Judge, Amritsar and he up-held the judgment and decree of the Sub Judge IIIrd Class, Tarn Taran, whereby the suit of the respondent (plaintiff) for possession by redemption of land measuring 7 Kanals 18 Marlas situated in village Sohal, Tehsil Tarn Taran was decreed on the payment of Rs. 3,000/-. 2. The facts of the case are that Smt. Baksho d/o Bakshish Singh resident of Village Sohal Thathi was owner of land measuring 7 Kanals 18 Marlas comprised in Khasra No. 227/2/1-2/2 as per Jamabandi for the year 1971-72. She mortgaged it with possession in Kundan Singh, appellant (defendant) for Rs. 3,000/- vide mortgage deed, Ex.P2, dated 28.2.1967 with the condition that she would not get it re-deemed for a period of six years. Smt. Baksho subsequently mortgaged the land measuring 13 Kanals 11 Marlas, including the suit land, comprised in Khasra No. 227/2/1 and 2/2 to Kartar Singh, respondent (plaintiff) for Rs. 9,000/- vide mortgage deed Ex.P1 dated 12.7.1968. 3. It was next averred that the appellant purchased the equity of redemption from the original owner, Smt. Baksho, in the suit land vide sale deed, Ex.D1 dated 6.4.1973 for Rs. 10,000/-. 4. After expiry of period of six years on 28.2.1973, Kartar Singh, respondent, requested the appellant to receive Rs. 3,000/- as mortgage amount and to get redeemed the suit land and to deliver possession of the same but he refused to do so and as such, he filed an application for redemption in the Court of Collector, Tarn Taran, on 8.4.1974. It was rejected by holding that the application involved complicated questions of law and fact which should be decided by the Civil Court. Thereafter, the respondent filed a civil suit for setting aside the order of the Collector but the same was rejected on 9.11.1976 with the stipulation that a regular suit for redemption was competent. 5. With these allegations, the respondent (plaintiff) filed a suit for possession by redemption of the aforesaid land on payment of Rs. 3,000/- as redemption money. 6. The appellant contested the suit and filed written statement on 24.3.1977. He took certain preliminary objections including the one that the suit was time barred. 5. With these allegations, the respondent (plaintiff) filed a suit for possession by redemption of the aforesaid land on payment of Rs. 3,000/- as redemption money. 6. The appellant contested the suit and filed written statement on 24.3.1977. He took certain preliminary objections including the one that the suit was time barred. On merits, he stated that he had purchased the equity of redemption in the suit land from Smt. Baksho vide registered sale deed dated 6.4.1973 and as such, had become the owner of the suit land. He next stated that the mortgagee rights had merged in his ownership rights and he had become proprietor of the same and the respondent had nothing to do with the suit land. 7. With these pleadings, the following issues were struck on 7.4.1973 :- "1. Whether the suit is within time ? OPP 2. Whether defendant had purchased the land from the original owner Gurbax ? If so to what effect ? OPD 3. Whether plaintiff had a right to file the suit being a subsequent mortgagee ? OPP 4. What is the effect of the dismissal of the application by the Collector, Tarn Taran, on 30.6.1975 ? OPP 5. Whether a suit filed by the plaintiff was dismissed on 9.11.1976 by the court of Shri Dhina Singh, Sub Judge, Tarn Taran ? If so to what effect ? OPD 6. Relief." 8. The Sub Judge IIIrd Class, Tarn Taran, tried this case. He, after hearing counsel for the parties, vide his judgment dated 21.1.1978, decreed the suit of the respondent-plaintiff for possession by redemption by holding under Issue No. 1 that the suit was within time. Under issue No. 2, it was held that the appellant had purchased the equity of redemption in the suit land from Smt. Baksho and as such, he had become entitled to the rights as held by Smt. Baksho over the suit land. Under issue No. 3, it was held that the respondent being subsequent mortgagee had the right to redeem the land from prior mortgagee. Issue Nos. Under issue No. 3, it was held that the respondent being subsequent mortgagee had the right to redeem the land from prior mortgagee. Issue Nos. 4 and 5 were also decided against the appellant by holding that the dismissal of the application by the Collector, Tarn Taran dated 30.6.1975 had got no effect on the rights of the respondent as he had not decided the application on merits but had simply held that since the matter was complicated and as such, should be got decided from the Civil Court. He further held that the order of the Collector would have become final and would have been fatal to the maintainability of the suit if he had held that the respondent had no right to redeem the property. He next held that the dismissal of the suit had also got no effect as it was only against the order of Collector dated 30.6.1975. 9. Aggrieved by the said judgement and decree, the defendant filed an appeal before the Additional District Judge, Amritsar, but the same was dismissed vide judgment dated 8.5.1980. 10. Still feeling dis-satisfied with the judgment of the Additional District Judge, the defendant has filed the present Regular Second Appeal. 11. Kartar Singh, respondent, had died during the pendency of the appeal and his legal representatives were brought on record vide order dated 20.3.1986. They were represented by Sh. Gurbachan Singh Cheema, Advocate. Notice was sent to Sh. Gurbachan Singh Cheema, Advocate, who was served but did not turn up. 12. I have heard counsel for the appellant, Sh. Sanjay Majithia alongwith Sh. Shailender Sharma, Advocate and carefully gone through the evidence on record. 13. There is no denying the fact that Smt. Baksho d/o Bakhshish Singh had mortgaged the land measuring 7 Kanals 18 Marlas comprised in Khasra No. 227/2/2 (1-4) and 227/2/1 (6-14) to Kundan Singh, appellant, for Rs. 3,000/- vide mortgage dated 28.2.1967, copy Ex.P2. It is also proved on record that subsequently vide mortgage deed dated 12.7.1968, Ex.P1, Smt. Baksho had mortgaged the land measuring 13 Kanals 11 Marlas, including the suit land, to Kartar Singh, respondent, for Rs. 9,000/-. He had left Rs. 3,000/- as Amanat belonging to Kundan Singh, appellant, as the suit land was under mortgage with Kundan Singh for Rs. 3,000/-. 9,000/-. He had left Rs. 3,000/- as Amanat belonging to Kundan Singh, appellant, as the suit land was under mortgage with Kundan Singh for Rs. 3,000/-. It is also proved on file that Smt. Baksho d/o Bakhshish Singh sold land measuring 11 Kanals 7 Marlas, including the suit land, to the appellant, Kundan Singh, for Rs. 10,000/- and Rs. 3,000/- were adjusted as the suit land was under mortgage with Kundan Singh for the said amount vide sale deed Ex. D1 dated 6.4.1973. 14. It has been observed by this Court in Karam Chand Moola Ram and others v. Telu Ram and others, AIR 1968 Punjab & Haryana 473, that the contention that no suit for redemption is competent, though not agitated in the lower appellate Court, is purely one of law and neither the admission of the counsel nor his non-urging of the point in the lower appellate Court will bind the appellant. Therefore, this point can be agitated in this appeal. It has been observed by Single Judge of this Court in Hari Singh and another v. Chand Singh and others, 1971 PLJ 654, that where a mortgagee purchases the equity of redemption, he may keep the mortgage alive for his own defence as against the puisne encumbrancer. But this does not mean that he is obliged to do so. In the instant case, there was no question of the appellate (defendant) keeping alive the mortgage in his favour for defence. The appellant claims that by reason of purchase of equity of redemption, the mortgage in his favour was wiped out. The question of intention to keep it alive does not arise. Moreover, it is equally well settled that the union of a charge and ownership of an estate amounts to merger because a lesser estate is drowned in the bigger. A man cannot be his own debtor. This is precisely what happened when the first mortgagee purchased the equity of redemption. Therefore, the subsequent mortgagee could in no case redeem the first mortgage and dispossess the appellant when he had become the owner of the suit land by reason of the applicability of the doctrine of merger. Therefore, in view of this proposition of law, there is no need to go into the other issues. 15. Therefore, the subsequent mortgagee could in no case redeem the first mortgage and dispossess the appellant when he had become the owner of the suit land by reason of the applicability of the doctrine of merger. Therefore, in view of this proposition of law, there is no need to go into the other issues. 15. Accordingly, I allow this appeal, set-aside the judgments and decrees of the Courts below and dismiss the suit of the respondent for possession by redemption of the suit land. 16. However, what I have said will not affect the mortgage made by Smt. Baksho in favour of Kartar Singh, respondent. The remedy of respondent, Kartar Singh, would be to file a suit for the recovery of mortgage amount. Appeal allowed.