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2004 DIGILAW 552 (PNJ)

Sher Singh v. Surat Singh

2004-05-12

V.K.BALI

body2004
JUDGMENT V.K. Bali, J. (Oral) - For a piece of land measuring 37 kanals 13 marlas, first the predecessor-in-interest of the plaintiffs and now the plaintiffs, who are the appellants before this Court, have been trying to get possession for the last more than 3 decades and it is unfortunate story that despite their best efforts to get the land redeemed, which was mortgaged for a sum of Rs. 1,000/- somewhere in 1969, they are still out of possession. 2. Brief facts giving rise to the present Regular Second Appeal need a necessary mention, before rival contentions of learned counsel representing the parties are noted and adjudicated upon in this regular second appeal, which has been filed by the appellants, who sought possession by way of redemption and even though succeeded in the matter before learned trial Court, some how failed before learned first Appellate Court resulting into dismissal of their suit, thus, constraining them to file present regular second appeal. The admitted facts of the case reveal that original owner of the land was one Wadhawa Singh, who had mortgaged the land to Inder Singh. Wadhawa Singh died and his estate devolved upon his daughter Smt. Harnamo. Inder Singh, original mortgagee, also died, resulting into succession of the mortgagee rights by Surat Singh and others, who were arrayed as defendants 1 to 7 in the original lis. Smt. Harnamo filed application for redemption of mortgage under the provisions of Redemption of Mortgages (Punjab) Act, 1913 and succeeded in the matter vide judgment passed on that behalf by the Assistant Collector Ist Grade, Patti, on 18.1.1966. During the pendency of the application aforesaid, however, Smt. Harnamo sold the land, subject matter of dispute, to Mahain Singh. At that time, Inder Singh was alive, who against the order of Assistant Collector Ist Grade allowing redemption of mortgage filed a civil suit seeking setting aside the order aforesaid and for declaration that Harnamo could not have redeemed the land, having sold it during the pendency of the application, as mentioned above. This suit, it is interesting to note, was decreed vide judgment and decree dated 14.7.1969. It may not be very important but it may, however, still be mentioned that whereas, the case of Smt. Harnamo was that the land was mortgaged for an amount of Rs. 339.50, case of Inder Singh was that mortgage amount was Rs. 1,000/-. This suit, it is interesting to note, was decreed vide judgment and decree dated 14.7.1969. It may not be very important but it may, however, still be mentioned that whereas, the case of Smt. Harnamo was that the land was mortgaged for an amount of Rs. 339.50, case of Inder Singh was that mortgage amount was Rs. 1,000/-. Vendees of Smt. Harnamo, who, as mentioned above, were sold the land during the pendency of the application, filed application for redemption but the same was dismissed on technical ground that the application made by them was not in prescribed proforma under the rules. Constrained, they filed suit for redemption of mortgage on 29.12.1970. This suit, as mentioned above, was decreed by learned civil Court vide judgment and decree dated 12.5.1976, constraining original defendants to file appeal, with result already indicated above. Learned appellate Court, before whom the matter came up for decision, dismissed the suit by holding that no reference can be made to any document on the record to show that the land was mortgaged as per the particulars given in the plaint. Earlier, learned Additional District Judge referred to various mortgages made by Smt. Gangi widow of Wadhawa Singh, original owner. How all these mutations are relevant is not at all understandable inasmuch as, the Court was concerned only with the mortgage made by Wadhawa Singh in favour of Inder Singh and not the others. However, while observing that no document had been shown to the Court from where it could be made out that the particulars mentioned in the mortgage are correct, it was held that when terms and conditions of the mortgage could not be proved either by the producing original deed or by leading secondary evidence, the plaintiffs had to fail in their endeavour to get the land redeemed. It is pertinent to mention that judgment, Ex. P-7, which came into being on a suit filed by none other than the defendants, dated 14.7.1969, was brought to the notice of learned Additional District Judge to show admitted particulars of mortgage but on the basis of which, all that came to be observed was that the said judgment was beyond the pleadings and could not be looked into. 3. Mr. 3. Mr. Mahajan, learned counsel representing the appellants, vehemently contends that the findings recorded by learned Additional District Judge are not only illegal but also perverse and cannot be sustained. Proof of a particular fact is dependent upon the evidence to be led by the parties and it is preponderance of the evidence which always tilts the balance in deciding a particular issue. Even if, therefore, the plaintiffs might have not mentioned correct particulars of the mortgage and amount thereof or for that matter the year of mortgage, all the particulars of mortgage were admitted in the written statement. The averments admitted in the pleadings culminated into judgment dated 14.6.1969 and that being so, there was no occasion to hold that the plaintiffs have not given the correct particulars of mortgage or the amount thereof. Mr. Mahajan further contends that the defendants in paragraph 5 of the written statement rather chose to plead that judgment, Ex. P-7, being inter-partes would operate as res judicata and, therefore, the suit was wholly incompetent. The judgment, Ex. P-7, based upon pleadings of the parties, wherein all particulars of the mortgage were admitted and which was stated to be binding upon the appellants herein, would clinch the issue insofar as particulars of mortgage were concerned. 4. I have heard learned counsel representing the parties and with their assistance examined the records of the case. There appears to be considerable merit in the contentions raised by Mr. B.R. Mahajan, learned counsel representing the appellants, as noted above. When defendants 1 to 7 filed suit challenging the order passed by Assistant Collector Ist Grade, ordering redemption of the land for Rs. 339.50, they accepted the factum of their being mortgagees as also the mortgagor having got the land redeemed from whom the present appellants had purchased the land. In the suit, which is inter-partes, or between the defendants in the present suit and successor of Harnamo, it could not be held, as has, indeed, been held by learned Additional District Judge, that the particulars of the mortgage were lacking in any way. It is significant to mention that the only plea raised in support of the suit aforesaid was that Smt. Harnamo, having sold her land during the pendency of application filed by her for redemption of mortgage, could not possibly continue with the application. It is significant to mention that the only plea raised in support of the suit aforesaid was that Smt. Harnamo, having sold her land during the pendency of application filed by her for redemption of mortgage, could not possibly continue with the application. Insofar as factum of mortgage is concerned, the amount for which it was to be redeemed, was admitted, it is no doubt true that the defendants, while filing suit aforesaid, stated that amount of mortgage was Rs. 1,000/- even though it was the case of the mortgagor that the amount of mortgage was only Rs. 339.50, but during the currency of present suit, amount of mortgage to be Rs. 1,000/- came to be admitted. 5. In the context of the facts, as mentioned above, contention raised by the appellants before learned first Appellate Court that the particulars of mortgage stood admitted by virtue of judgment, Ex. P-7, could not possibly be brushed aside. It is significant to note that when the matter came up for motion hearing before this Court on 11.10.1979, following order was passed:- "Contends that prior to the present suit, the defendants-respondents had filed a suit in which the existence of the mortgage in dispute was admitted by them. Copy of the judgment relating to this suit, Ex. P-7, has been wrongly ignored. Notice of motion for 9th of November, 1979." 6. Learned first Appellate Court, in considered view of this Court, committed a patent illegality in ignoring the admission of the defendants emanating from judgment, Ex. P-7, which came into being on the pleadings made by themselves. 7. Confronted with the position as aforesaid, Mr. A.C. Jain, learned counsel representing the defendant-respondents, contends that assuming, for the sake of argument, particulars of mortgage were admitted in the pleadings culminating into judgment, Ex. P-7, the appellants, in a suit for possession by way of redemption had to prove the date of mortgage as otherwise, the suit cannot be held to be within limitation. The appellants, in other words, it is contended, had to show that suit for possession by way of redemption was within thirty years from the date of mortgage. This contention of learned counsel is only stated to be rejected for the reason that in the suit that came to be filed on 7.2.1966, which was decreed on 14.7.1969, there was an acknowledgement of the property having been mortgaged to the defendants. This contention of learned counsel is only stated to be rejected for the reason that in the suit that came to be filed on 7.2.1966, which was decreed on 14.7.1969, there was an acknowledgement of the property having been mortgaged to the defendants. Even if, therefore, the plaintiff-appellants had not proved the date of mortgage, they, in any case, had filed the suit within thirty years of the acknowledgement of mortgage. The acknowledgement of mortgage by way of suit filed by none other than the respondents herein, could not be disputed during the course of arguments. 8. In view of the discussion made above, this appeal is allowed with costs, which are quantified at Rs. 1,000/-. Judgment and decree passed by learned first Appellate Court is set aside and the one passed by learned trial Court is restored. Appeal allowed.