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2002 DIGILAW 87 (PNJ)

Jora Singh v. Dalip Kaur

2002-01-15

M.L.SINGHAL

body2002
JUDGMENT M.L. Singhal, J. - Dalip Kaur d/o Sham Kaur d/o Roda Singh of village Smalsar, Tehsil Moga, wife of Bhagat Singh of Village Rajiwala, Tehsil Zira filed suit for declaration against Jora Singh son of Pilla Singh son of Anokh Singh alias Ghona Singh of village Smalsar to the effect that she is mortgagee with possession of land measuring 7 kanal 11 marla as detailed in the heading of the plaint situated in village Smalsar, Moga for Jamabandi of 1987-88; in the alternative, decree for possession as mortgagee. It is alleged in the plaint that land measuring 7 kanal 11 marla is the ownership of the defendant. It was mortgaged by him with possession in favour of Sham Kaur mother of the plaintiff for a sum of Rs. 32,200/- vide registered mortgage deed dated 3.9.86. Sham Kaur died on 16.1.89 leaving behind the plaintiff as her sole heir. Mutation of succession of Sham Kaur was sanctioned in favour of the plaintiff. Defendant forged a receipt after the death of Sham Kaur purporting to have been executed by Sham Kaur in token of the receipt of the redemption money and got sanctioned a mutation of redemption without the knowledge of the plaintiff in a secret and clendestine destine manner with the connivance of the revenue staff. It is alleged in the plaint that neither Sham Kaur nor the plaintiff received redemption money nor revenue officer of the rank of Assistant Collector Second grade had any jurisdiction or power to redeem the land particularly without summoning or hearing the plaintiff. Order dated 14.12.89 passed by AC Second grade is illegal ultra vires and is liable to be set aside. Plaintiff came to know about the redemption order passed by AC Second Grade at a later stage. She filed appeal before Collector, Moga which was dismissed on 30.10.92. That order is also illegal and not binding upon the plaintiff. Plaintiff is still a mortgagee with possession. 2. Defendant contested the suit of the plaintiff. It was urged that the suit is barred by limitation. Plaintiff has got no locus standi to file the suit. Suit is not maintainable. Plaintiff is estopped by her act and conduct from filing the suit. Plaintiff has concealed material facts from the court. It was admitted that the suit property was mortgaged with possession with Sham Kaur. It was urged that the suit is barred by limitation. Plaintiff has got no locus standi to file the suit. Suit is not maintainable. Plaintiff is estopped by her act and conduct from filing the suit. Plaintiff has concealed material facts from the court. It was admitted that the suit property was mortgaged with possession with Sham Kaur. Mortgage was, however, redeemed during the life time of Sham Kaur. Sham Kaur executed a valid receipt dated 4.1.89 regarding receipt of mortgage money in favour of the defendant. She also handed over the original mortgage deed to the defendant. Possession of the suit property was also delivered at the time of redemption. Since then the defendant has been owner in possession of the suit land without any encumbrance on it. Plaintiff was fully aware of mutation proceedings. She was fully aware that Sham Kaur had received the mortgage money from the defendant. On the pleadings of the parties, following issues were framed :- 1. Whether the plaintiff is mortgagee with possession of the suit land ? OPP 2. Whether the plaintiff is entitled to declaration as prayed for in the plaint ? OPP 3. Whether the suit is barred by time ? OPD 4. Whether the plaintiff has got no locus standi to file the present suit ? OPD 5. Whether the suit is not maintainable in the present form ? OPD 6. Whether the plaintiff is estopped by her own act and conduct to file the present suit ? OPD 7. Relief. 3. Vide order dated 26.7.96. Civil Judge (Junior Division), Moga dismissed the plaintiffs suit in view of his finding, that the mortgage was got redeemed from Sham Kaur during her lifetime by the defendant on payment of Rs. 32,200/- to her. Sham Kaur executed receipt Ex.D1 in token of the receipt of Rs. 32,200/- as mortgage money from Zora Singh. It was found that the fact that possession was with the defendant implies that possession was delivered to him by the mortgagee after she had received the mortgage money and redeemed the mortgage. It was found that the suit was barred by limitation Plaintiff should have filed suit within one year of 14.12.89 i.e. when AC Second Grade sanctioned mutation of redemption. 4. It was found that the suit was barred by limitation Plaintiff should have filed suit within one year of 14.12.89 i.e. when AC Second Grade sanctioned mutation of redemption. 4. Plaintiff went in appeal, Plaintiffs appeal was allowed by Additional District Judge, Faridkot and the plaintiff was declared mortgagee of land measuring 7 Kanal 11 marla entitled to possession of the land as mortgagee. 5. It was submitted by the learned counsel for the appellant that the learned lower appellate court should have dismissed the appeal. It should have held that Sham Kaur had received Rs. 32,200/- vide receipt Ex.D1 on 4.1.89 and had thumb marked it. It was submitted that this receipt was attested by Pritam Singh. Sukhmandir Singh and Kunda Singh DW1. It was scribed by Harpal Singh. Kunda Singh DWI stated about the execution of the receipt by Sham Kaur in favour of Zora Singh in token of the receipt of Rs. 32,200/- from him as mortgage amount. Harpal Singh DW2 stated that he scribed receipt Ex.D1 at the instance of Sham Kaur. Through this receipt Sham Kaur received Rs. 32.200/- from Zora Singh and redeemed the land. He stated that Sham Kaur put her right thumb impression on receipt Ex.D1. To the same effect goes the statement of Sukhmandir Singh DW3. They have further stated that after receipt EX.D1 was scribed mortgage deed was handed over by Sham Kaur to Zora Singh. It was submitted that the receipt of mortgage money by Sham kaur and the handing over of the mortgage deed by her to Zora Singh signifies the redemption of mortgage. It was submitted that Zora Singh was put in possession pursuant to the redemption of mortgage and the handing over of the mortgage deed by Sham Kaur to him. It was submitted that the mortgage was thus duly got redeemed by Zora Singh from Sham Kaur. 6. Learned counsel for the respondent, on the other hand, submitted that mortgage was never got redeemed by Zora Singh. Receipt Ex.D1 through which Zora Singh is said to have paid Rs. 32,200/- to Sham Kaur in token of the redemption of the land is false and forged. It was Submitted that Zora Singh got mutation of redemption of land sanctioned in his favour in connivance with the revenue staff by producing false and forged receipt Ex. Receipt Ex.D1 through which Zora Singh is said to have paid Rs. 32,200/- to Sham Kaur in token of the redemption of the land is false and forged. It was Submitted that Zora Singh got mutation of redemption of land sanctioned in his favour in connivance with the revenue staff by producing false and forged receipt Ex. D1, it was submitted that Anil Kumar Gupta, Document Expert, Fazilka PW3 has stated that he compared the thumb impression alleged to be that of Sham Kaur appearing on receipt Ex.D1 dated 4.1.89 with her standard thumb impression at mark B which is last page of the mortgage deed and found that these thumb impressions do not tally. It was submitted that science of thumb impression is an exact science. There is no reason to dispute the opinion of Shri Anil Kumar Gupta PW3. It was submitted that Zora Singh has not examined any other document expert to show that the thumb impressions alleged to be that of Sham Kaur appearing on receipt Ex.D1 tallies with the thumb impression of Sham Kaur on the last page of mortgage deed mark B. 7. It was submitted by the learned counsel for the appellant that the court should not go by the opinion of document expert as document experts generally lean in favour of the party by whom they are called. It was submitted that court should attach more weight to the statements of attesting witnesses of receipt Ex.D1 who have stated that vide receipt Ex.D1 Sham Kaur received Rs. 32,200/- from Zora Singh in token of the receipt of mortgage money. It was submitted by the learned counsel for the appellant that if Sham Kaur had not received Rs. 32,200/- from the appellant and had not allowed redemption of the land in suit she would not have handed over the mortgage deed to Zora Singh. It was submitted that Zora Singh produced from his possession two leaves of the mortgage deed namely mark A and mark B. Mark B is the last page of the mortgage deed where the mortgage deed came to a close. Plaintiff produced earlier two leaves to the mortgage deed from her possession. If Sham Kaur had really received Rs. 32,200/- from Zora Singh and executed receipt Ex.D1 and handed over to him the mortgage deed. Plaintiff produced earlier two leaves to the mortgage deed from her possession. If Sham Kaur had really received Rs. 32,200/- from Zora Singh and executed receipt Ex.D1 and handed over to him the mortgage deed. Zora Singh would have been in possession of all the four leaves of the mortgage deed. First two leaves of the mortgage deed have been produced by the plaintiff Dalip Kaur d/o Sham Kaur. Dalip Kaur PW2 stated that mortgage deed was lost; in whose hands the mortgage deed fell, he had handed over it to Zora Singh. 8. Even otherwise receipt Ex.D1 cannot extinguish mortgage. Mortgage could be extinguished by a registered deed of redemption. Mortgage could also be extinguished if receipt of Rs. 32,200/- by Sham Kaur had been recorded on the back of the mortgage deed. On the basis of this receipt no mutation of redemption could be recorded. Mutation of redemption was recorded without any notice to Dalip Kaur by AC Second Grade. Mutation was sanctioned by AC Second Grade in the presence of Zora Singh (on the basis of receipt Ex. D1) Kunda Singh, Sukhmandir Singh and Mukhtiar Singh Lambardar on 14.3.90. In the order passed by AC Second Grade, there is no mention of the presence of Dalip Kaur. It may be mentioned here that Sham Kaur died 10-15 days after 4.1.89 in an accident. After the death of Sham Kaur, AC Second grade should have given notice to her daughter Dalip Kaur before sanctioning mutation of redemption in favour of Zora Singh. Dalip Kaur went in appeal to the court of Collector. Moga where through she challenged order dated 14.3.90 of AC Second Grade, Moga vide which he sanctioned mutation No. 938. Collector, Moga dismissed her appeal vide order dated 30.10.92. AC Second Grade did not in fact decide the issue of redemption. He simply looked at receipt dated 4.1.89 and sanctioned mutation in the presence of its marginal witnesses Zora Singh and Lambardar Mukhtiar Singh. He could have decided the issue of redemption if he had issued notice to Dalip Kaur. He did not issue any notice to Dalip Kaur. Dalip Kaur was thus not bound to challenge the order of AC Second Grade within one year of 14.3.90 under Article 100 of the limitation Act. He could have decided the issue of redemption if he had issued notice to Dalip Kaur. He did not issue any notice to Dalip Kaur. Dalip Kaur was thus not bound to challenge the order of AC Second Grade within one year of 14.3.90 under Article 100 of the limitation Act. Article 100 of the limitation Act will not come in the way of Dalip Kaur when nothing was said by AC Second Grade on the plea of Zora Singh that he had redeemed land by Virtue of receipt dated 4.3.89 and had paid Rs. 32,200/- to Sham Kaur as mortgage debt which he had incurred by virtue of mortgage deed dated 3.1.86. Dalip Kaur went in appeal to Collector, Moga against the order of AC Second grade dated 14.3.90 which was dismissed by Collector. Moga vide order dated 30.10.92. It is the collector who went into the merits of Zora Singhs contention viz. he had redeemed land on payment of Rs. 32,200/- to Sham Kaur vide receipt dated 4.1.89 and the Collector found that Zora Singh had paid Rs. 32,200/- to Sham Kaur on 4.1.89 through receipt which had the effect of extinguishing mortgage. Plaintiffs suit is within time as having been filed on 3.4.93 i.e. within one year of the order of Collector. 9. Plaintiffs suit was clearly within limitation having been filed within one year of the order of Collector which considered the merit of Zora Singhs contention viz. he had redeemed the land by virtue of receipt dated 14.1.89 on payment of Rs. 32,200/- to Sham Kaur and found that AC Second Grade had justifiably sanctioned mutation in his favour vide order dated 14.3.90. It was submitted by the learned counsel for the appellant that when the trial court had found the plaintiffs suit barred by time, the first appellate court should not have gone into a fresh appraisal of the evidence and come to a contrary finding. It was submitted that finding on question of limitation is finding of fact. It is true that the finding of fact arrived at on appraisal of evidence by the courts below cannot be set aside by the High Court sitting in second appeal. In this case, first appellate court has set aside the finding of fact recorded by the learned trial court on appraisal of evidence. It is true that the finding of fact arrived at on appraisal of evidence by the courts below cannot be set aside by the High Court sitting in second appeal. In this case, first appellate court has set aside the finding of fact recorded by the learned trial court on appraisal of evidence. Plaintiff could ignore these orders as they are void orders passed on receipt dated 4.1.89 which was never executed by Sham Kaur and which could never extinguish mortgage. Plaintiff was dispossessed though previously she was in possession. She could file suit for possession on the basis of previous possession within 12 years of the date of dispossession in view of Article 64 of the Limitation Act. 10. In view of what I have said above, this appeal fails and is dismissed. Judgment and decree of the first appellate court are correct and are maintained. No order as to costs. Appeal dismissed.