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2004 DIGILAW 386 (PNJ)

Chanan Singh v. Chirdhari Lal

2004-03-31

V.M.JAIN

body2004
Judgment V.M.Jain, J. 1. The Regular Second Appeal has been filed by the defendant-appellants against the judgment and decree dated 8.9.1983 passed by the Additional District Judge, Hoshiarpur, whereby the appeal filed by the plaintiffs was accepted, the judgment and decree dated 13.2.1982 passed by the Trial Court were set aside and the suit of the plaintiffs was decreed and a decree for possession of the land in dispute was passed in favour of the plaintiffs and against the defendants. 2. The facts in brief are that the plaintiffs had filed a suit for possession of the agricultural land detailed in the heading of the plaint with the allegations that on 17.1.1938, Smt. Durgi widow of Nand Lal had 1/2 share in the land detailed in para No. of the plaint and that on 17.1.1938 Smt. Durgi, the holder and occupancy tenant of the land detailed in para No.l of the plaint had mortgaged the same along with possession with plaintiff No.l Daya Ram and Behari Lal predecessors-in-interest of plaintiff Nos.2 to 7 for a sum of Rs. 275/-and had put plaintiff No.l Daya Ram and Behari Lal aforesaid in possession thereof and since then they were in possession of the said land. It was alleged that the said mortgage deed was duly executed and got registered by Smt. Durgi in favour of plaintiff No. 1 and Behari Lal. It was alleged that on the partition of India inl947,the parties migrated to India and the land detailed in the heading of the plaint was allotted in the name of Smt. Durgi in lieu of the land left by her in Pakistan and detailed in para No. 1 of the plaint. It was alleged that plaintiff No.l and Bheari Lal continued in possession of the land detailed in para No. 1 of the plaint till they remained in Pakistan and thereafter, after allotment of the land in lieu of the said land, they occupied the allotted land and continued to remain in its possession. It was alleged that during consolidation proceedings, the land in dispute was allotted in the name of Smt. Durgi by way of allotment in lieu of the land, which was allotted to her in lieu of the land left by her in Pakistan. It was alleged that during consolidation proceedings, the land in dispute was allotted in the name of Smt. Durgi by way of allotment in lieu of the land, which was allotted to her in lieu of the land left by her in Pakistan. It was alleged that Behari Lal mortgagee died and was succeeded by plaintiff Nos.2 to 7and in this manner, all the plaintiffs became mortgagees of the land, which was allotted to Smt. Durgi and continued in possession thereof and their names were also entered in the column of possession in the consolidation record. It was alleged that since the mortgage was created by Smt. Durgi Devi on 17.1.1938 on the expiry of the period after 17.1.1938, the rights of Smt., Durgi (mortgagor) to redeem the said land stood lost and extinguished and the plaintiffs rights got matured into those of ownership as Durgi did not exercise her right of redemption of the suit land with time and as such since 17.1.1970, the plaintiffs had become the owners of the suit land. It was alleged that defendants and their father Munsha Singh entered into possession over a part of the said land as tenants prior to 17.1.1970 but the plaintiffss right remained un-en- cumbered and in fact the remaining land was in possession of the plaintiffs through their tenants. It was alleged that defendant No.l and his father Munsha Singh had claimed that they had purchased the suit land from Smt. Durgi on 25.5.1966 and thus had acquired the right of the mortgagor of Smt. Durgi in the suit land and in this way the defendants had stepped into the footsteps of Smt.Durgi mortgagor and were the successors-in-interest of Smt. Durgi, even though the plaintiff did not admit the same. It was alleged that on 26.5.1971, the defendants filed an application under Section 5 of the Punjab Land Redemption Act in the Court of Collector against the plaintiffs for redemption of the land measuring 17 Kanals 8 Marias on the ground that only 17 Kanals 8 Marias of the land was under mortgage with the plaintiffs, even though this assertion of the defendants was not correct and was false, inasmuch as, the entire suit land stood mortgaged with the plaintiffs till 16.1.1970 and since 17.1.1970, the plaintiffs had become the absolute owners of the suit land. It was alleged that the said application of the defendants in respect of land measuring 17 Kalans 8 Marias was dismissed by the Collector vide order dated 12.2.1974 and thereafter, the defendants filed a Civil Suit on 26.7.1974 under Section 24 of the Punjab Land Redemption Act, 1913 and the said suit of the defendants was also dismissed on 13.1.1976 and the appeal was dismissed on 21.12.1978 by the Additional District Judge. It was alleged that the plaintiffs being the owners of the suit land were entitled to get back and put into its possession from the defendants,who had no right in the suit land, inasmuch as, the rights of Durgi mortgagor stood extinct and lost by operation of law of limitation. It was accordingly prayed that a decree for possession of land measuring 49 Kanals 11 Marias be passed in favour of the plaintiffs and against the defendants. 3. In the written statement filed by the defendants, it was denied that the suit land was ever mortgaged by Smt. Durgi. It was also denied that the suit land was allotted in lieu of the land detailed in para No. 1 of the plaint. It was alleged that after the land was allotted in India, the defendants and their father were in possession thereof and no-one else ever remained in possession of the suit land. It was alleged that the plaintiffs or their predecessor-in-interest never remained in possession of the suit land. It was alleged that there was no mortgage in favour of the plaintiffs and even if there was any such mortgage, the plaintiffs never took possession and their claim now is time barred. It was alleged that the father of defendant No.l came in possession of the suit land in the year 1950 as tenant under Smt. Durgi and later on in the year 1966, defendant No. l and the father of the defendants purchased the suit land and as such they are in possession thereof since 1950 as tenants and since 1966 as owners. It was further alleged that the plaintiffs were neither in possession of the suit land nor they had ever disclosed that they were the mortgagees whereas the defendants were bona fide purchasers for consideration. It was further alleged that the plaintiffs had lost their right to possession, if any. 4. Replication was filed. Various issues were framed. Both sides led evidence. It was further alleged that the plaintiffs had lost their right to possession, if any. 4. Replication was filed. Various issues were framed. Both sides led evidence. After hearing both sides and perusing the record, the learned Trial Court dismissed the suit of the plaintiffs holding that the suit was time barred and that the plaintiffs had failed to show that the land in dispute was allotted in lieu of the land, which was subject-matter of the mortgage deed dated 17.1.1938. However, the appeal filed by the plaintiffs was accepted by the learned Additional District Judge, the judgment and decree passed by the Trial Court were set aside and the suit for possession filed by the plaintiffs was decreed by the learned Additional District Judge in respect of the land measuring 17 Kanals 8 Marias. It was found that the suit was within limitation and with regard to identity, it was found that the learned counsel appearing for the plaintiffs had conceded that there was no dispute regarding the identity of the land. Resultantly, the appeal was allowed and decree for possession was passed in favour of the plaintiffs and against the defendants in respect of the land measuring 17 Kanals 8 Marias. Aggrieved against this judgment and decree of the learned Additional District Judge, the defendants filed the present appeal in this Court. 5. I have heard the learned counsel for the parties and have gone through the record carefully. 6. The learned counsel appearing for the defendant-appellants submitted before me that the learned Additional District Judge erred in law in deciding issue No. 1 in favour of the plaintiffs and holding that the suit was within limitation. It was submitted that the mortgage is dated 17.1.1938 and the suit filed on 3.10.1974 would not extend the period of limitation inasmuch as by that date the limitation had already expired and any acknowledgement made beyond the period of limitation would not extend the limitation for filing the suit. It was submitted that after the coming into force of the Limitation Act, 1963, the suit could be filed till 1970 and no suit having been filed till 1970, the limitation had expired and by filing the suit on 3.10.1974 and admitting the mortgage, the limitation for filing the suit would not be extended. 7. It was submitted that after the coming into force of the Limitation Act, 1963, the suit could be filed till 1970 and no suit having been filed till 1970, the limitation had expired and by filing the suit on 3.10.1974 and admitting the mortgage, the limitation for filing the suit would not be extended. 7. The learned counsel appearing for the plaintiff-respondents submitted before me that on the basis of the suit filed on 3.10.1974, the limitation would not be extended, inasmuch as if the limitation was to expire in the year 1970, any acknowledgement made thereafter would not extend the period of limitation. However, it has been submitted that in fact, in the present case, the limitation for redeeming the mortgage was originally 60 years and after the coming into force of the Limitation Act, 1963, the limitation was reduced to 30 years and after the coming into force of 1963 Act, the suit could be filed within seven years in case the limitation had expired by reducing the period of limitation and as such the period for redeeming the mortgage stood extinguished in the year 1970. It has been submitted that within 12 years thereof, the plaintiffs could file the suit for possession and the present suit having been filed in August, 1979,it could not be said that the present suit for possession filed by the plaintiffs was time barred and as such the learned Additional District Judge had rightly held the suit to be within limitation. 8. After hearing the learned counsel for the parties and going through the record, in my opinion, there is considerable force in the submissions of the learned counsel for the plaintiff-respondents that the present suit filed by the plaintiffs was within limitation. As referred to above, the mortgage was executed and registered on 17.1.1938.At that time the limitation was 60 years. However, after coming into force of the Limitation Act, 1963, the limitation was reduced to 30 years. As referred to above, the mortgage was executed and registered on 17.1.1938.At that time the limitation was 60 years. However, after coming into force of the Limitation Act, 1963, the limitation was reduced to 30 years. Under Section 30 of the Limitation Act, 1963, it has been provided that any suit for which the period of limitation is shorter than the period of limitation prescribed by the Limitation act, 1908, may be instituted within a period of seven years next after the commencement of the 1963 Act or within the period prescribed for such suit by Limitation Act, 1963 had come into force on 1.1.1964 and as such the limitation for redeeming the mortgage would expire on 31.12.1970 i.e. on the expiry of seven years of the coming into force of the Limitation Act, 1963. However, no such suit for redemption was filed by Smt. Durgi and/or her successors-in-interest. In this manner their right to redeem the mortgage stood extinguished on 31.12.1970. In this manner, the plaintiffs became the owners of the suit property since the limitation for redemption of mortgage had already expired. Once it is found that on the expiry of 31.12.1970, the plaintiffs being the Mortgagees became the owners of the suit property by efflux of time, in my opinion, the plaintiffs could file a suit for possession within 12 years thereof under Section 63 of the Limitation Act, 1963. Section 63, of the said Act reads as under: Description of suit Period of Time , from which Limitation period beings to run 63. By a mortgagee - (a) for foreclosure : Thirty years When the money secured by the mortgage become due. (b) for possession of Twelve years When the mortgagee comes immovable property entitled to possession. mortgaged 9 From a perusal of the above, it would be clear that a mortgagee without posses- sion is entitled to seek possession of immovable property,which was mortgaged with him within 12 years of the date when the mortgagee becomes entitled to possession i.e. from the date when the right of redemption stood extinguished by efflux of time. The present suit having been filed within 12 years of 31.12.1997, in my opinion, the present suit filed by the plaintiffs for possession of the suit property is clearly within time. The present suit having been filed within 12 years of 31.12.1997, in my opinion, the present suit filed by the plaintiffs for possession of the suit property is clearly within time. In view of the above, though for different reasons, I affirm the findings of the learned Additional District Judge on issue No. 1 and hold that the suit filed by the plain- tiffs was within limitation. No other point has been urged before me in this appeal. In view of the above, finding no merit in this appeal, the same is hereby dismissed.