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2002 DIGILAW 630 (PNJ)

Gurbachan Singh v. Inder Singh

2002-07-02

ASHUTOSH MOHUNTA

body2002
JUDGMENT Ashutosh Mohunta, J. - The plaintiff-appellant has filed this appeal against the judgments and decrees dated May 17, 1980 and October 10, 1981 passed by the Sub Judge Ist Class and the Additional District Judge, Sangrur, respectively. 2. Briefly, the facts of the case are that Bakhtawar Singh son of Santa Singh mortgaged with possession the land measuring 36 bighas and 9 biswas situated in village Buggar, Tehsil and District Sangrur, to Isab son of Kodu for Rs. 2,500/- vide mortgage deed dated 17 Magh, 1997 Bk., corresponding to January 26, 1941. After the death of Isab, his mortgagee rights were inherited by his legal heirs, namely, Jamala, Bakshi, Bhuro and Umar Din. These legal heirs of Isab further sold their mortgagee rights in favour of Sunder Singh, defendant No. 1, vide sale deed dated 2 Har, 2001 Bk., corresponding to June 15, 1944. Bakhtawar Singh, the original mortgagor, died issueless. His estate devolved upon Santa Singh son of Dharam Singh. Santa Singh raised an additional amount of Rs. 500/- on the security of the aforesaid land from Sunder Singh, defendant No. 1 on 30 Jeth 2002 Bk., corresponding to June 12, 1945. In this way, the mortgage amount was raised to Rs. 3,000/-. Santa Singh also died. His estate was inherited by Gurbachan Singh plaintiff and Sarja Singh. Sarja Singh also died and his share devolved upon Gurcharan Singh plaintiff and his sisters, defendant Nos. 2 to 4. During consolidation of holdings, the land in dispute was allotted in lieu of the land originally mortgaged. Gurbachan Singh plaintiff, who had 5/8th share in the land in dispute, transferred one-half share of his share in favour of his sons Nachhattar Singh, Darshan Singh, Shangara Singh and Bagga Singh and he remained the owner of the said land to the extent of 5/16th share. The plaintiff filed an application under the Redemption of Mortgages (Punjab) Act, 1913 (for short the Act) on June 20, 1973. The said application was dismissed on February 11, 1975 by the Collector. 3. The plaintiff filed an application under the Redemption of Mortgages (Punjab) Act, 1913 (for short the Act) on June 20, 1973. The said application was dismissed on February 11, 1975 by the Collector. 3. The plaintiff filed a suit for possession by way of redemption and for declaration to the effect that the order passed by the Collector was void and illegal, on June 5, 1975, on the plea that the application for redemption of the land was within time as the fresh period of limitation started from June 12, 1945, on which date the mortgagee acknowledged the existence of the mortgage. 4. Sunder Singh defendant contested the suit. He admitted the factum of mortgage but denied the plaintiffs right to redeem the land and alleged that the suit was barred by time. 5. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether Bakhtawar Singh son of Santa Singh mortgaged 36 bighas 19 biswas of land to Isab son of Modi on 17.10.1977 Bk. for Rs. 2500/- ? OPP 2. Whether Jamala and others, sons of Isab, solid their mortgagee right to defendant No. 1 on 15.6.1944, if so, to what effect ? OPP 3. Whether the plaintiff is the successor-in-interest of the original mortgagor Bakhtawar Singh ? OPP 4. Whether Santa Singh further mortgaged the land for Rs. 500/- on 30.2.2002 Bk ? OPP 5. Whether the land in dispute was allotted in lieu of land measuring 36 bighas 19 biswas during consolidation ? OPP 6. Whether the sale of mortgagee rights dated 15.6.1944 amount to an acknowledgement, if so, with what effect ? OPP 7. Whether the judgment of the Collector dated 11.2.1975 is wrong, if so, with what effect ? OPP 8. Whether the mortgage dated 12.6.1945 gives a fresh start of limitation for redemption to the plaintiff ? OPP 9. Whether the plaintiff has subsisting right of redemption and the suit is within limitation ? OPP 10. Relief. Issue Nos. 1 to 6 were decided in favour of the plaintiff. Under issue No. 7 it was held that the order passed by the Collector was not correct but it had no effect because the plaintiff was to succeed in the suit only by proving that the suit was within time. Issue Nos. 8 and 9 were decided against the plaintiff. As a result of decision on issue Nos. Under issue No. 7 it was held that the order passed by the Collector was not correct but it had no effect because the plaintiff was to succeed in the suit only by proving that the suit was within time. Issue Nos. 8 and 9 were decided against the plaintiff. As a result of decision on issue Nos. 8 and 9, the trial Court dismissed the suit of the plaintiff. The appeal filed by the plaintiff was also dismissed by the learned Additional District Judge on October 10, 1981. Now the plaintiff has filed the present regular second appeal against the judgment and decrees of the Courts below. 6. Gurbachan Singh plaintiff died on December 13, 1992. His legal representatives have been brought on record vide order dated March 7, 2002. Similarly, Inder Singh, defendant No. 1, has also died and he has also been ordered to be represented by his legal heirs. 7. It has been contended by the learned Counsel for the appellant(s) that the Courts below had wrongly calculated the period of limitation from the date of filing of the suit in the Civil Court. Rather, according to the learned Counsel, in the instant case the period of limitation should have been counted from the date of filing of the application before the Collector. Further it has been contended by the learned Counsel that once the trial Court had held that the order passed by the Collector was a wrong order, the consequential relief of redemption of the mortgage should have been granted to the plaintiff. Still further, learned Counsel for the appellant has contended that while deciding issue No. 4, it has been held by the learned trial Court that as Sunder Singh defendant had filed a vague and evasive written statement with regard to the creation of additional mortgage in the sum of Rs. 500/- on 30th Jeth, 2000 (Bk.) (corresponding to June 12, 1945), the said mortgage "may be taken to have been admitted". Thus, according to the learned Counsel for the appellant, the Courts below had wrongly dismissed the suit for possession by way of redemption. 8. Mr. Avnish Mittal, learned Counsel for the respondents, has vehemently controverted the contentions raised by the learned Counsel for the appellant. According to him, the period of limitation could not be counted from the date of filing of the petition before the Collector. 8. Mr. Avnish Mittal, learned Counsel for the respondents, has vehemently controverted the contentions raised by the learned Counsel for the appellant. According to him, the period of limitation could not be counted from the date of filing of the petition before the Collector. Rather, according to him, the period of limitation could only be counted from the date of filing of the suit in the Civil Court. He also contended that there is no specific acknowledgment on the part of Sunder Singh defendant with regard to the creation of an additional mortgage in the sum of Rs. 500/- on June 12, 1945. In this regard, according to him, no reliance can be placed on the document Ex. PW4/C, which is a copy of the alleged mortgage on the said date. In support of his contention he placed reliance on Shiv Lal and others v. Chetram and others, AIR 1971 SC 2342 and Padmawati v. Hans Raj and others, 1975 P.L.R. 83. 9. I have heard the learned Counsel for the parties and with their assistance have gone through the evidence on record. 10. So far as the position of law is concerned, the redemption of mortgage proceedings taken before the Collector are civil proceedings. The Collector would be deemed to be a court for that purpose. According to Section 14(1) of the Limitation Act, 1963, the time spent by the plaintiff in another civil proceeding is to be excluded while computing the period of limitation for any suit. Thus, in the instant case, the period of limitation is to be computed from the date the plaintiff had filed the petition for redemption before the Collector. It stands proved on record that Jamala and other sons of Isab had sold their mortgagee rights in favour of Sunder Singh, defendant No. 1, on June 15, 1944. The application for redemption of the land in dispute was filed by the plaintiff before the Collector on June 20, 1973, which was dismissed by him vide order dated February 11, 1975. Thus, the application for redemption filed by the plaintiff was within the prescribed period of limitation. The time spent by the plaintiff before the Collector is to be excluded for computing the period of limitation for filing the suit. Thus, the application for redemption filed by the plaintiff was within the prescribed period of limitation. The time spent by the plaintiff before the Collector is to be excluded for computing the period of limitation for filing the suit. In this view of mine, I am fortified by the authority reported as Pritam Kaur v. Sher Singh, 1987 Punjab Legal Reports and Statues 657, wherein it was held that the time spent before the Collector can be taken into consideration for explusion for the purpose of limitation and the benefit can be taken under Section 14 of the Limitation Act. 11. Furthermore, in the instant case, the plaintiff had been compelled to file the certified copy of the additional mortgage executed by Santa Singh in favour of Sunder Singh defendant on June 12, 1945 (Ex. PW4/C) as the original mortgage deed was with Sunder Singh defendant. The original deed was called from him, but he failed to produce the same. In this way, the plaintiff was left with no other alternative but to lead a secondary evidence. In the written statement filed by Sunder Singh, the factum of additional mortgage by means of the mortgage deed, a certified copy of which is at Ex. PW4/C, has been admitted by him. This admission by Sunder Singh defendant, who is the mortgagee, in the written statement can be taken as a sufficient acknowledgement of the fact of additional mortgage on June 12, 1945. It has been held by a Full bench of the Kerala High Court in Pillai v. Kaliyanikutty Amma, 1994(3) RRR 576, that if there is an admission of facts of which the liability in question is a necessary consequence there would be an acknowledgement within the meaning of Section 18 of the Limitation Act. Further, it has been held by their Lordships that it is not necessary that there should be a specific and direct acknowledgment of a particular liability, which is sought to be enforced. By not producing any evidence against the creation of the document (Ex. PW4/C), Sunder Singh defendant had acknowledged the creation of a fresh mortgage on June 12, 1945. Thus, it has given a fresh period of limitation to the plaintiff for getting the property in dispute redeemed. The authorities cited by the learned Counsel for the respondents are not applicable to the facts of the present case. 12. PW4/C), Sunder Singh defendant had acknowledged the creation of a fresh mortgage on June 12, 1945. Thus, it has given a fresh period of limitation to the plaintiff for getting the property in dispute redeemed. The authorities cited by the learned Counsel for the respondents are not applicable to the facts of the present case. 12. Still further, while deciding issue No. 7 it has been held by the learned trial Judge that the order dated February 11, 1975 had been wrongly passed by the Collector as the application for redemption before him was filed by the plaintiff within the prescribed period of limitation for redemption of the mortgage. Once the impugned order passed by the Collector was held to be wrong by the trial Judge, the consequential relief of redemption should have been granted to the plaintiff, as he had filed the suit within the prescribed period of one year from the date of the said order. Consequently, the appeal is allowed. The judgments and decrees of both the Courts below are set aside and the suit filed by the plaintiff is decreed. However, there shall be no order as to costs. Appeal allowed.