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2003 DIGILAW 1368 (PNJ)

Sheo Narain v. Risaldar Amir Singh

2003-09-26

ADARSH KUMAR GOEL

body2003
JUDGMENT Adarsh Kumar Goel, J. - This second appeal has been preferred against decree of the lower appellate court whereby a declaration was granted that redemption of mortgage permitted by the Collector by order dated 15.11.1977 was void. 2. Case of the respondents is that suit property was mortgaged by one Hardwari in favour of plaintiffs and defendant Nos. 1 to 4 and possession was given for that purpose on 29.12.1945 for which mutation was sanctioned on 20.12.1946. A part of this property was mortgaged by the other co-owner Smt. Chhano in respect of which mutation was sanctioned on 29.8.1950. Defendant No. 1 Sheo Narain purchased the redemption rights from defendant Nos. 5, 6, 10 and 11 and applied for redemption against the plaintiffs and defendants Nos. 2 to 11 and redemption was allowed. The plaintiffs sought a declaration that redemption could not be allowed. 3. The trial court dismissed the suit. It was held that the mortgage took place on 20.12.1946 and on completion of formalities application filed on 15.12.1976 was within 30 years and within time. 4. On appeal, the decree of the trial court was set aside and it was held that redemption qua mortgage dated 29.12.1945 was invalid as the mortgage became effective on 29.12.1945 itself while application of redemption was filed on 15.11.1976. 5. Learned counsel for the appellant submitted that right of redemption was not lost by limitation as it commenced from the date of the sanction of the mutation on 20.12.1946 from which date application for redemption filed on 15.12.1976 was within 30 years and the trial court had rightly accepted this plea which has been wrongly set aside by the lower appellate court. It is also contended that the appellant has already entered into an agreement to sell dated 23.7.2003 to sell the suit property in favour of the respondents. 6. Learned counsel for the respondents submitted that question whether mortgage commenced on 29.12.1945 or 20.12.1946 was a question of fact and not a substantial question of law and, therefore, could not be gone into in second appeal. He relies on decisions of the Apex Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, AIR 1999 SC 2213 and Deity Pattabhiramaswamy v. S. Hanymayya and others, AIR 1959 SC 57 to submit that mere appreciation of facts cannot be the substantial questions of law. He relies on decisions of the Apex Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, AIR 1999 SC 2213 and Deity Pattabhiramaswamy v. S. Hanymayya and others, AIR 1959 SC 57 to submit that mere appreciation of facts cannot be the substantial questions of law. He also submitted that suit of the respondent-plaintiffs has been rightly decreed by the lower appellate court as appellant-defendant No. 1 had not purchased the right of redemption. 7. Apart from the fact that there is an agreement by the appellant to sell the suit property to the respondents as mentioned by learned counsel for the appellant in CM No. 8438-C of 2003, I find that there is substantial question of law for consideration in second appeal. Suit property comprised of agricultural land also which was mortgaged with possession and plaintiffs were in possession of a part of the suit land as mortgagees. They did not render any accounts of the usufruct. In such a situation, right of the mortgagor or successor of the mortgagor such as the appellant to recover possession is also governed by Article 64 of the Schedule to the Limitation Act when mortgage debt is discharged from the usufruct as held by the Apex Court in Prithi Nath Singh v. Suraj Ahir, AIR 1968 SC 1041 (Para 5), in the wake of Debt Redemption Laws. Following the said judgment, this court has also held in Samadh Baba Narain Dass Ba-Ihaman Swami Ram Tirath v. Surta and others, AIR 2002 P&H 108 that merely on expiry of 30 years, right of redemption is not lost particularly when mortgagee does not render accounts to show that the amounts remained unpaid. In this situation, second appeal is maintainable and judgments relied on by the learned counsel for the respondents are distinguishable. 8. Substantial question of law involved for consideration is whether right of appellant-defendant to redeem came to an end merely on expiry of period of 30 years. In view of judgment of this Court in Samadh Baba Narain Dasss case (supra), the answer has to be in the negative. For this purpose, even if it is assumed that mortgage commended on 21.9.1945, order of redemption cannot be held to be illegal. For the above reasons, this second appeal is allowed. The decree of the lower appellate court is set aside and that of the trial Court is restored. No costs. For this purpose, even if it is assumed that mortgage commended on 21.9.1945, order of redemption cannot be held to be illegal. For the above reasons, this second appeal is allowed. The decree of the lower appellate court is set aside and that of the trial Court is restored. No costs. Appeal allowed.