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2002 DIGILAW 291 (HP)

HIRA CHAND v. UTTAM RAM

2002-10-16

S.S.NEGI

body2002
ORDER S.S. Negi, IAS, FC. - This is an appeal filed by Shri Hira Chand and 4 others residents of village Bhajivara Phati Balagad, Kothi Shikari, Tehsil Banjar, Distt. Kullu against the order dated 29.6.1992 passed by the Divisional Commissioner Mandi in Misc. Appeal No. 19/91 whereby the appeal filed by two of the present respondents S/Shri Daulat Ram and Khimi Ram was accepted and the order dated 4.10.1989 of the Collector was set aside. 2. The facts of the case briefly stated are that S/Shri- Daulat Ram and 4 others the present petitioners filed an application under Section, 4 of the Restitution of Mortgage Lands Act, 1976, seeking restitution of: possession of mortgaged land i.e. 1/3rd share of land measuring 18-13 i Bighas comprised in Khata/Khatoni No. 325/404 to 406, Khasrea Nos 4762, 900 min 900 min, khata Khatoni No. 326/407, Khasra No. 1758, khata/Khatoni No. 328/1/409/1, 409/3 and 409/2, Khasra Nos. 880, 898, 908, 874, 892, 880 min, 892 min, 896, as per the Jamabandi for the year 1984-85 situated in Phati Behar, Kothi Chehuni Tehsil Banjar, Distt. Kullu. The lands were mortgaged by one Sh. Jhanph, the grand father of present petitioners No. 1 to 4 and father in law of petitioner No. 5 to one Shri Sahibi for an amount of Rs. 40/- and mutation No. 172 was attested on 30.6.1916. The petitioners submitted that the respondents or their predecessor had derived the profit of more than twice of the mortgage debt, therefore they were entitled for the restitution of the mortgaged property without making any payment of the mortgage debt. It was accordingly prayed that the possession of the land be ordered to be restored to them and they be recorded as absolute owners in possession of the land. 3. The Collector Banjar Sub Division after hearing both the parties and going through the record, allowed the application of S/Sh. Daulat Ram and others with cost of Rs.200/- vide order dated 23.3.1991 and they were ordered to be put in possession of the land by ejecting the respondents. 4. Aggrieved of this order of the Collector Banjar dated 23.3.1991, S/Sh. The Collector Banjar Sub Division after hearing both the parties and going through the record, allowed the application of S/Sh. Daulat Ram and others with cost of Rs.200/- vide order dated 23.3.1991 and they were ordered to be put in possession of the land by ejecting the respondents. 4. Aggrieved of this order of the Collector Banjar dated 23.3.1991, S/Sh. Daulat Ram and Khimi Ram the present respondents No. 3 and 4 filed an appeal under section 10 of the H.P. Restitution of Mortgaged I Lands Act, 1976 (Act No. 20 of 1976) before the Divisional Commissioner Mandi on the grounds that the court below had acted illegally and with material irregularity in accepting the application for restitution and awarding cost to the tune of Rs. 200/- as the application , for the restitution of mortgaged land was filed on 7.10.1989 i.e. after more than 74 years which application should have been rejected by the Court below as the rights of mortgagors stood extinguished and they (mortgagees) have become owners of the same and that the Collector Banjar was not the Collector under the relevant Act as the notification relied upon by the Collector was related only to those SDO(C) as existed on 6.1.1982 whereas the Sub Division Banjar was created only 1989. 5. The learned Commissioner Mandi Division after hearing both the parties and perusal of case record held that application of restitution of land was filed after the period of limitation, and therefore, accepted the appeal vide order dated 29.6.1992 and set aside the order of the Collector dated 23.3.1991. 6. Feeling aggrieved and dissatisfied with the order of Commissioner Mandi Division dated 29.6.1992, S/Sh. Hira Chand and others have filed the present appeal before this Court: 7. The records were requisitioned and the parties have been heard. The learned Counsel appearing for both the sides have filed written arguments also which have been placed on the case file. 8. The learned Counsel for appellants have contended that the land was mortgaged with possession vide mutation No. 172 attested on 30.6.1916 for a consideration of Rs. 40/- only and the respondents or their predecessors have since derived the benefits from the land far in Excess of the mortgaged amount and therefore the appellants are entitled to the restitution of the property. 40/- only and the respondents or their predecessors have since derived the benefits from the land far in Excess of the mortgaged amount and therefore the appellants are entitled to the restitution of the property. Their claim for- restitution was maintained by the Collector, but the learned Commissioner set aside the orders of Collector wrongly by applying the provisions of Limitation Act, whereas restitution is governed by the provisions of I Restitution of mortgaged Lands Act where under no limitation for restitution of the property has been provided. The learned Counsel has contended that there is no period of limitation prescribed for restitution of the property under the aforesaid Act and general law of limitation cannot be pressed into service as general law cannot prevail over special law. The learned Counsel has accordingly prayed that the expression "at any time" in the Restitution Act entitles the appellant to seek restoration of property any time and impugned order be set aside. 9. The learned Counsel for the respondent has submitted that the appellants have lost the right in the property as the prescribed period for redemption of the property has lapsed and the right has thus extinguished after the statutory period. It was accordingly pointed out that since the mortgage did not subsist, therefore there is no question to restitute the land to the appellants. 10. On consideration of the facts and submissions the admitted position of the matter is that the predecessor of present appellants Sh. Jhanph on 30.6.1916 mortgaged with possession the land in question to Sh. Sahibi for a consideration of Rs.40. In pursuance of the mortgage, mutation was also attested on 30.6.1916. The appellants have sought restitution of the land under the aforesaid Act by an application submitted to the Collector concerned in the year, 1989 after about 74 years. The Collector allowed the application, whereas on, appeal the Commissioner Mandi set aside the findings of the Collector on the ground that no redemption could be made after period of 30 years under the Indian Limitation Act, and such right stood extinguished. The learned Commissioner pressed into service the provisions of the Indian Limitation Act. The learned Counsel for appellant has vehemently opposed that since there is a special law to deal with restitution under the Restitution of Mortgaged Lands Act, 1976, therefore general law of limitation could not be applied. The learned Commissioner pressed into service the provisions of the Indian Limitation Act. The learned Counsel for appellant has vehemently opposed that since there is a special law to deal with restitution under the Restitution of Mortgaged Lands Act, 1976, therefore general law of limitation could not be applied. The relevant provision contained in Section 2 of the Act reads as under:- "Application of Act to subsisting Mortgages - Notwithstanding anything contained in any enactment for the time being in force, this Act shall apply to any subsisting mortgages of land which were effected more than 20 years prior to the date on which on application for the restitution of the possession of the mortgaged land under Section 4 of this Act is made. Explanation. - A mortgage shall be deemed to subsist, notwithstanding a decree or orders for its redemption having been passed, provided redemption has not taken place before the commencement of this Act. Section 4 Petition for restitution: - A Mortgage to whose land the provisions of this Act apply, may at any time present a petition to the Collector praying for restitution of possession of the land mortgaged. The petition shall be duly verified in the manner prescribed for such petition.-" 11. The aforesaid provision shows that an application for restitution of the land mortgaged can be filed any time after 20 years subject to the condition that the mortgage is subsisting. 12. It is not the case of the respondents that they have acquired the title in the land by foreclosure and a decree to that effect has been passed in their favour by appropriate Court of jurisdiction. Since no such decree has been passed therefore it cannot be said that the mortgage is not subsisting and the appellants remedy under the said Act has been barred. The tenor and expression under in Section 2 and 4 of the Act would suggest that the appellants can apply for restitution and their application is not fettered by limitation. We agree to the proposition submitted by the learned Counsel for appellants that general law cannot be applied when there is a special law and in case of any conflict (though there is none) between the two, the special law will have precedence over general law by harmonious construction of the two statutes. In view of the above discussion, the limitation law. In view of the above discussion, the limitation law. could not have pressed into service by the learned Commissioner and therefore, his order is required to be set aside and the one passed by learned Collector need to be restored. Consequently, the appeal is accepted. The impugned order is set aside. 13. Orders be communicated to the parties and the case file of this Court be consigned to the record room after due completion.