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2004 DIGILAW 627 (PNJ)

Dogar Ram v. Amar Singh

2004-05-27

AJAY K.MITTAL

body2004
Judgment Ajay Kumar Mittal, J. 1. This judgment shall dispose of Regular Second Appeal Nos,1273 and 1159 of 1984 as these arise out of a common, judgment dated 23.9,1983 passed by the Additional District Judge, Jalandhar. 2. The plaintiff-Dogar Ram filed a suit for possession of 1 /3rd share of taur against defendants-Amar Singh, Pritam Singh, Surinder Singh, Kashmiri Lai and Yashpal. The facts leading to the filing of the suit are that on 9.7.1920, one Babu Ram son of Chint Ram mortgaged with possession his l/3rd share of taur in dispute with one Daya Ram. On 7 11 1942 Daya Ram mortagagee furhter with possession the said l/3rd share in the taur in dispute withe the plaintiff . The said property in dispute was never got redeemed by Babu Ram or Daya Ram within the prescribed period by law. The plaintiff claimed that he had become full owner 1/3rd share of the taur in dispute by hare of the taur in dispute by the year 1972 by offux of time . The plaintiff had by then acquired the other 2/3rd share in the taur in dispute also and had becomme owner therfore .The planitiff claimed that in the year 1971 he had tp go Calcutta and on his return he he found that defendants 1 to 3 had constructed a house on a part of the the taur in disputed. The plaintiff asked defendants 1 to 3 to deliver him the possesssion and to remove thier malba. The said defendants alleged that had purched 1/3rd share in the taur in dispute from defendants 4 and 5 and thus they refused to admit the claim of the plaintiff and deliver back the possession. 3. The written statement was filed by defendants 2 and 3 only who took a preliminary objection that suit for possession was not maintainable. On merits, the averments contained in the pliant were denied. It was pleaded that if there was any mortgage deed in favour of the plaintiff, the same was a forged document, It was further stated that they raised construction of a very palatial building by spending huge amount of Rs. 50,000/- and at that time, the plaintiff did not raise any objection nor did he assert his ownership over the said property. 50,000/- and at that time, the plaintiff did not raise any objection nor did he assert his ownership over the said property. Lastly, it was pleaded that they along with defendant No. 1 pirchased l/3rd share of the plot in dispute from defendant no,4 vide registered sale dec d dated 9.6.1971 for consideration and thus, they were bona fide purchasers. 4. The rival claims raised by the parties, gave rise to the following issues:- 1. Whether Babu Ram mortgaged with possession l/3rd share in the taur shown in red colour in site plan attached by the plaintiff as alleged in para No. 1 to the plaint? OPP 2. Whether Daya Ram mortgagee of the above property further mortgaged with possession the same with the plaintiff on 7.11.1942? OPP 3. Whether the plaintiff has become owner of the said property by efflux of time? OPP 4. Whether the plaintiff is entitled to possession of the suit property? OPP 5. Whether the suit for possession of the property is not maintainable in the present form? OPD 6. Whether this Court has no jurisdiction to try and entertain the present suit? OPD (onus objected to) 7. Whether the suit is bad for non-joinder of the necessary parties, if so, its effect? OPD 8. Whether the suit is properly valued for the Court fee and jurisdiction? 9. Whether the plaintiff is barred by his act and conduct to file this suit? OPD 10. Whether defendant Nos. l to 3 purchased a plot from Kashmiri Lal on 9.6.1971, if so, its effect? OPD 11. Whether defendant Nos.l to 3 raised construction bonafide on the plot purchased by them if so to what value? OPD 12. If issue No. 10 is proved, whether the defendant Nos.l to 3 are entitled to recover any amount for the construction? OPD 13. Relief. 5. The trial Court after appreciating the entire evidence, oral as well as documentary, led by the respective parties, answered issue No. 1 in favour of the plaintiff, holding that Babu Ram mortgaged with possession l/3rd share in the taur in dispute with deceased Daya Ram. Under issue No. 2, it was held that Daya Ram mortgagee further mortgaged the property in dispute with possession, with the plaintiff on 7.11.1942 mortgage deed of the said date, Exhibit P-4. Under issue No. 2, it was held that Daya Ram mortgagee further mortgaged the property in dispute with possession, with the plaintiff on 7.11.1942 mortgage deed of the said date, Exhibit P-4. Issue Nos.3, 5 and 6 were decided in favour of the plaintiff holding that the plaintiff became the owner of the property in dispute by efflux of time on 7.11.1972; the suit for possession was maintainable and the Civil Court was competent to try the suit. Issue No. 7 was decided against the defendants and it was held that the suit was not bad for non-joinder of necessary parties. No plea of estoppel against the plaintiff could be raised was the finding returned under issue No. 9. Under issue No. 10, it was held that since the right of redemption of the owners of the property was to come to an end only on 7.11.1972, therefore, earlier to that, Kashmiri Lal had valid title to pass on to defendants 2 and 3. This issue was accordingly decided against the plaintiff and in favour of defendants 1 to 3. Issue Nos. II and 12 were taken up together and were also decided against plaintiff and in favour of defendants 1 to 3. It was held under these issues that defendants 1 to 3 had raised construction and made improvements on the property in dispute to the tune of Rs. 30594/- and thus, they have a right to require the plaintiff either to pay the said amount or to ask the plaintiff to sell the plot in dispute at the market value of the plot to be determined on the date of eviction. Under issue No. 4, it was held that in view of the findings under the aforesaid issues, the plaintiff was entitled to the possession of the property in dispute only on the condition that he paid a sum of Rs. 30594/~ to defendants 1 to 3 being cost of the construction and the improvements made by them. Resultantly, the suit was decreed by judgment and decree dated 8.6.1981, in favour of the plaintiff of l/3rd share of the taur in dispute subject to the condition that the plaintiff pays a sum of Rs. 30594/~ to defendants 1 to 3 being cost of the construction and the improvements made by them. Resultantly, the suit was decreed by judgment and decree dated 8.6.1981, in favour of the plaintiff of l/3rd share of the taur in dispute subject to the condition that the plaintiff pays a sum of Rs. 30594/- to defendants 1 to 3 being the cost of construction and improvements made by them or deposit in the Court the said amount within a period of two months of the date of decree, failing which, it was ordered that the suit shall stand dismissed. 6. Both the sides feeling dissatisfied with the judgment and decree of the trial Court, preferred separate appeals before the District Judge. The plaintiff felt aggrieved by that part of the judgment and decree where it was ordered that a sum of Rs. 30594/- was required to be paid or deposited by him on account of construction and improvements, to defendants 1 to 3 whereas the latter were aggrieved by the decree for possession granted in favour of the plaintiff. 7. The lower appellate Court after considering the matter dismissed the appeal filed by the plaintiff, but allowed the appeal filed by the defendants by judgment and decree dated 23.9.1983. 8. The plaintiff has thus filed two separate appeals assailing the judgment and decree of the lower appellate court. 9. No one has appeared for the respondents even though counsel for the respondents was informed as per office report. 10. Learned counsel for the appellant submitted that in R.S.A. No. l 159 of 1984, the following substantial questions of law arise for consideration by this Court:- i) Whether the findings of the learned appellant Court on issue Nos.4, 9 and 10 are perverse and against law and are liable to be set aside by this Honble High Court? ii) Whether appellant/plaintiff has become owner by efflux of time on expiry of redemption period of mortgage deed dated 7.11.1942 (Ex.P4)? iii) Whether appellant-plaintiff is entitled to possession of the suit property after having become owner by efflux of time on extinguishing of mortgagors right of redemption under mortgage deed dated 7.11.1942 (Ex.P4)? iv) Whether learned appellate Court below have misconstrued the provisions of Section 51 of Transfer of Property Act, 1882? iii) Whether appellant-plaintiff is entitled to possession of the suit property after having become owner by efflux of time on extinguishing of mortgagors right of redemption under mortgage deed dated 7.11.1942 (Ex.P4)? iv) Whether learned appellate Court below have misconstrued the provisions of Section 51 of Transfer of Property Act, 1882? v) Whether acquiring of ownership rights by defendant Nos.l to 3 prior to the appellant-plaintiff becoming owner by efflux of time has any effect on the present suit? 11. Learned counsel for the appellant further submitted that in R.S.A. No. 1273 of 1984, the following substantial questions of law arise for consideration of this Court:- i) Whether the findings of the learned appellate Court below on issue Nos.ll and 12 are perverse and against law and are liable to be set aside by this Honble High Court? ii) Whether the provisions of Section 51 of the Transfer of Property Act are applicable in the State of Punjab? ii) Whether the provisions of Section 51 of the Transfer of Property Act are attracted in far-facts and circumstances of the present case? iv) Whether the learned appellate Court below have misconstrued the provisions of Section 51 of Transfer of Property Act, 1882? v) Whether acquiring of ownership rights by defendant Nos.l to 3 prior to the appellant-plaintiff becoming owner by efflux of time has any effect on the present suit? 12. Taking up R.S.A. No. l 159 of 1984 first, having considered the substantial question of law formulated by the learned counsel for the appellant, in my opinion, the only substantial question of law that arises for consideration in this appeal is:- "Whether the appellant-plaintiff is entitled to possession of the suit property after having become owner by efflux of time on extinguishing of mortgagors right of redemption under mortgage deed dated 7.11.1942 (Ex.P4)" 13. Learned counsel for the appellants submitted that plaintiff-appellant became owner of the suit property by efflux of time on extinguishing of mortgagors right of redemption under mortgage deed dated 7.11.1942, Exhibit P4, and the learned lower appellate Court had erred in dismissing the suit of the plaintiff-appellant regarding delivery of possession. 14. I have considered the submission of the learned counsel for the appellant. 14. I have considered the submission of the learned counsel for the appellant. Under section 30 of the Limitation Act, 1963 (for short "1963 Act"), the period of limitation for getting the mortgaged property redeemed is shorter than the period prescribed by Indian Limitation Act, 1908 (for short 1908 Act). A suit may be instituted within a period of seven years after the commencement of 1963 Act, or within a period prescribed for such suit by 1908 Act, whichever period expires earlier. Section 30 of the 1963 Act, reads as under: "30. Provision for suits etc. A suit may be instituted within a period of seven years after the commencement of 1963 Act, or within a period prescribed for such suit by 1908 Act, whichever period expires earlier. Section 30 of the 1963 Act, reads as under: "30. Provision for suits etc. for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908.- Notwithstanding anything contained in this Act- a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of [seven years] next after the commencement of this Act, or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever periods expires earlier; [Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefore under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under the Act, then the suit may be instituted within the period of limitation prescribed therefore under this Act.] b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier." In case the said period of seven years expires earlier than the period of limitation prescribed by 1908 Act and the said period of seven years together with so much of the period of limitation in respect of such suit under 1908 Act, as has already expired before the commencement of 1963 Act, is shorter than the period prescribed for such suit under 1963 Act, the suit may be instituted within the period of limitation prescribed therefore under 1963 Act. 15. 15. The 1963 Act came into fore with effect from 1.1.1964, as such the rights of the original mortgagor Babu Ram in the mortgaged property came to an end on 1.1.1971 and Babu Ram or his successors-in-interest became owner of the suit property on this date. The mortgage deed in favour of the plaintiff-appellant, Exhibit P4 is dated 7.1.1942 and the period of 30 years as prescribed under Article 61 of the Schedule to the 1963 Act, was to expire on 7.11.1972 whereas period of seven years came to an end on 1.1.1971, the plaintiff became owner of the property in dispute by efflux of time on 7.11.1972. The learned lower appellate Court has thus, wrongly held that the plaintiff is not entitled to possession of the suit property. Accordingly, the substantial question of law formulated in R.S.A. No. 1159 of 1984 is answered in favour of the appellant, Regular Second Appeal No. 1159 of 1984 is thus, accepted and the judgment and decree impugned therein is reversed. 16. Now adverting to R.S.A. No. 1273 of 1984, though the learned counsel for the appellant has claimed that the substantial questions as reproduced in the earlier part of the judgment arose for consideration in this case, but in my opinion, the only substantial question that arises for consideration by this Court is as under: - "Whether provisions of Section 51 of Transfer of Property Act, are attracted in the facts and circumstances of the present case and the findings recorded on issue Nos. l1 and 12 are perverse and are legally unsustainable?" 17. I have given my thoughtful consideration to the entire matter and in my opinion, this appeal deserves to be dismissed. 18. Learned counsel for the appellant by relying on the provisions of Section 51 of the Transfer of Property Act, 1882 (for short "1882 Act") contended that suit of the plaintiff for possession without awarding as costs of improvement etc. should have been decreed because the plaintiff-appellant could not in law be penalised for the wrongful act of the defendant-respondents, particularly, when there was nothing on the record to suggest that constructions/improvements were made by the defendant-respondents under bona fide belief that they were the owners of the site in dispute. should have been decreed because the plaintiff-appellant could not in law be penalised for the wrongful act of the defendant-respondents, particularly, when there was nothing on the record to suggest that constructions/improvements were made by the defendant-respondents under bona fide belief that they were the owners of the site in dispute. Learned counsel to butters his submission placed reliance on J. Narayana Rao v. V.G. Basavarayappa and Ors., A.I.R. 1956 S.C. 727; Dawarampudi Nagaratnamba v. Kunuku Rammayya and Anr., A.I.R. 1963 Andhra Pradesh 177 and Syed Ale Mossa Raza and Ors. v. Razia Begum and Ors., A.I.R. 2003 Andhra Pradesh 2. 19. Section 51 of the Transfer of Property Act, 1882 reads as under:- "51. Improvements made by bona fide holders under defective titles. When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them." 20. In Dwarampudi Nagaratnambas case (supra), a Division Bench of the Andhra Pradesh High Court held as under:- "If Nagarathamba made improvements on the property in honest belief that she was absolutely entitled to it, on eviction she would be entitled to the benefit of Section 51 T.P. Act. The principle underlying S.51 T.P. Act is based on the doctrine of equity and, therefore, the maxim he who seeks equity must do equity would apply. Even after the pre-requisites for the enforcement of equity enacted in Section 51 T.P. Act are satisfied, right to election for one of the two alternatives provided in that section would still rest with the person evicting. Even after the pre-requisites for the enforcement of equity enacted in Section 51 T.P. Act are satisfied, right to election for one of the two alternatives provided in that section would still rest with the person evicting. He may either pay the value of the improvements and take the land or sell out his interest in the land to the transferee at the then market value of the property, irrespective of the value of such improvement. That is the substance of right conferred under Section 51." The same view was re-iterated to Syed Ale Mossa Razas case (supra), wherein it was observed as under:- "The ingredients for application of S.51are that the defendant has purchased or otherwise acquired the property from a source other than the plaintiff and answers the description of transferee, he faces eviction from the plaintiff who is found to have "better title to the property" and the defendant made improvements or construction on the said property under a bona fide belief that he has title to the property. Section 51 of the T.P. Act operates only as long as it is evident that the plaintiff did not do anything to encourage or give an impression to the defendant that he (plaintiff) has no objection for the improvement or construction by the defendant. Once such are presentation to a standardised degree emanates from the plaintiff, the provisions of this Section ceases to operate and Section 115 of the Evidence Act steps in, wherein the plaintiff would be estopped. To invoke the plea of estoppel it is not necessary that the defendant should have any title, defective or otherwise. If it is established that the plaintiff represented to the defendant that the later can treat the property as his own or use it as of right and the defendant acting upon such representation takes steps or changes his position, the plaintiff cannot be permitted to turn round at a later stage. The main distinguishing feature of these two concepts of estoppel, however, is that to invoke the concept of estoppel, the defendant has to specifically plead each and every act or omission, as the case may be, that constitutes the representation from the plaintiff and the consequential acts by the defendant; and prove them to the satisfaction of the Court. The main distinguishing feature of these two concepts of estoppel, however, is that to invoke the concept of estoppel, the defendant has to specifically plead each and every act or omission, as the case may be, that constitutes the representation from the plaintiff and the consequential acts by the defendant; and prove them to the satisfaction of the Court. Once the defendant establishes the plea of estoppel, the Court recognises the acquiescence on the part of the plaintiff in the situation brought about by the defendant and pins him (plaintiff) to that situation and does not permit him to retreat or turn round. Invocation of Section 51 of the T.P. Act, on the other hand, does not depend on the pleadings and proof pointing out to the principle underlying in it. Once the facts necessary for invocation of the same emerge in a case, the Court can invoke it. Section 5 of the T.P. Act, in a way, operates in default. in that when the defendant who is found to have made improvements on the property is neither a trespasser, nor has he pleaded and established estoppel." 21. The Apex Court in J. Narayana Raos case (supra) while interpreting Section 51 of the 1882 Act held that Section 51 merely lays down as equitable principle and enables a Court to determine equities between the parties. The Court has to know exactly how much the transferee had spent on improvements and so as to arrive at the conclusion as to what was the saleable value of the improved property. The Court should assess the valuation of the improvement as at a date as near as possible to the date of actual eviction rather than the date of election. 22. Both the courts below have consistently held that defendants 1 to 3 purchased the property in dispute from defendant No. 4 vide registered sale deed dated 9.6.1971, Exhibit D-3 and the suit was filed on 8.5.1979. The plaintiff had become owner of 2/3rd share of the taur in dispute. The Courts below have held that on the basis of evidence led by the parties, the plaintiff kept silent from 9.6.1971 till the filing of the suit in the year 1979, thereby creating bona fide belief in defendants 1 to 3 that they were absolutely entitled to the property in dispute. The Courts below have held that on the basis of evidence led by the parties, the plaintiff kept silent from 9.6.1971 till the filing of the suit in the year 1979, thereby creating bona fide belief in defendants 1 to 3 that they were absolutely entitled to the property in dispute. On 9.6.1971, Kashmiri Lal had a valid title to pass on to defendants 1 to 3 and the plaintiff had not yet become owner of the property in dispute by efflux of time. Thus, under Section 51 of the 1882 Act, a transferee making any improvement on the property under a bona fide belief in good faith that he is absolutely entitled thereto, on being threatened with eviction by any person having a better title, can require the person causing the eviction either to pay the estimated value of the improvements or to secure the same to the transferee or to sell his interest in the property to the transferee at the market value thereof irrespective of the value of such improvement. In the present case, on 9.6.1971 defendants 1 to 3 bona fide believed that they were absolutely entitled to the property in dispute. There is no evidence on record to show that defendants 1 to 3 were aware of the mortgage rights of the plaintiff in the property in dispute. The improvement made by defendants 1 to 3 cannot be said to have become the property of the plaintiff because defendants 1 to 3 are not trespassers to acquire title from the previous owner, defendants No. 4. Therefore, defendants 1 to 3 have a right to ask the plaintiff either to pay them the amount of the improvements or to sell the l/3rd of the plot in dispute to them. It may be noticed that both the courts below on the basis of evidence have concurrently held that the cost of improvements made by defendants 1 to 3 is estimated at Rs. 30,594/-. The said finding of fact recorded by both the courts below could not be assailed by the appellant in the present appeal. 23. The substantial question of law as formulated earlier in this appeal deserves to be answered against the plaintiff-appellant and in favour of defendants 1 to 3. Accordingly, Regular Second Appeal No. 1273 of 1984 is dismissed. 24. No other point has been urged before me. 23. The substantial question of law as formulated earlier in this appeal deserves to be answered against the plaintiff-appellant and in favour of defendants 1 to 3. Accordingly, Regular Second Appeal No. 1273 of 1984 is dismissed. 24. No other point has been urged before me. The upshot of the above discussion in both the appeals is that a decree of possession is passed in favour of the plaintiff-appellant subject to the condition that he pays a sum of Rs. 30,594/- to defendants 1 to 3 being cost of construction and improvements made by them or deposits the said amount in the trial Court within two months from today, failing which the suit of the plaintiff-appellant shall stand dismissed. There shall be no order as to costs. Appeals stand disposed of in the manner indicated above.