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2005 DIGILAW 1191 (PNJ)

Salwant Singh v. Dalip Singh

2005-11-18

VINEY MITTAL

body2005
Judgment Viney Mittal, J. 1. The present regular second appeal has been filed by the defendants. They have challenged the judgment and decree dated February 8, 1990 passed by the learned first appellate Court whereby the appeal filed by the plaintiff-respondent Dalip Singh against the judgment and decree dated August 20, 1988 passed by the learned trial Court was allowed and consequently his suit was decreed, after modification of decree of the trial Court, 2. Plaintiff, Dalip Singh, had filed a suit for possession by way of redemption of land measuring 7 kanals 2 marlas, on payment of Rs. 7500/- or such other amount as may be determined by the Court. It was claimed by the plaintiff that he had mortgaged the aforesaid land vide mortgage deed dated April 15, 1991 with defendant No. l Sal-want Singh for an amount of Rs. 7500/-. It was further claimed that possession of the aforesaid mortgage land was delivered to the mortgagee and no interest was payable on the mortgaged amount as the income of the mortgaged land was to be appropriated by the mortgagee. The aforesaid mortgage ,was redeemable at any time in the month of Baisakh after four years from the date of the mortgage. The plaintiff claimed that he had requested defendant No. l, Salwant Singh, to redeem the land and to deliver the possession thereof on receipt of amount of Rs. 7500/- but defendant No. l refused to do so. It was further pleaded by the plaintiff that defendants No. 2 to 5 were claiming to have purchased the suit land from some other co-sharers of the plaintiff, which assertion of the said defendants, according to the plaintiff, was wrong incorrect and false. The plaintiff also deemed the legality and validity of any such sale deed in favour of defendants No. 2 to 5. It was claimed by him that the said co-sharers were not in possession of the suit land, as such they were not competent to alienate the same, in any manner. Consequently, the sale deed by co-sharers in favour of defendants No. 2 to 5 was claimed to be illegal and ineffective as against the rights of the plaintiff. The plaintiff alleged that defendants No.2 to 5 are the sons of defendant No. 1 and have got the sale deed executed in their favour with a view to prolong his possession even after redemption. The plaintiff alleged that defendants No.2 to 5 are the sons of defendant No. 1 and have got the sale deed executed in their favour with a view to prolong his possession even after redemption. Consequently, the plaintiff claimed that defendants No.2 to 5 are also bound to deliver vacant possession of the suit land to the plaintiff on its redemption. 3. Defendants appeared and contested the suit. Two separate written statements were filed by defendant No. l and defendants No.2 to 5. 4. In his written statement, defendant No. l admitted that he had taken some area of mortgage from the plaintiff but denied that mortgagor was in exclusive possession of the entire land so at the time of mortgage he could not deliver the possession of the entire mortgaged land. According to the said defendant, mortgagor had delivered actual possession of only 1 kanal 5 marlas of land. The plaintiff had promised that he would deliver the possession of the remaining land also after getting the same from other co-sharers but the plaintiff could not do so. In these circumstances, defendant No. I claimed that the mortgage remained a paper transaction with regard to the remaining area and defendant no. l also admitted that defendants No. 2 to 5 have purchased a portion of the suit land from some co-sharers and are in possession thereof. 5. In their separate written statement, defendants No. 2 to 5 took various preliminary objections. They pleaded that suit filed by the plaintiff against them seeking possession of the suit land was not maintainable inasmuch as there was no privity of contract between the plaintiff and defendant No. 2 to 5. On merits of the controversy, they pleaded that a portion of the suit land had been sold by Chanchal Singh and Bakhshish Singh sons of Surain Singh who were co-sharers in possession of the suit land to defendants No. 2 to 5 vide a registered sale deed dated November 30, 1985 and delivered the actual physical possession of the suit land to them. Accordingly, it was claimed that defendants No. 2 to 5 had been in possession of the suit land purchased by them as co-owners/co-sharers and, therefore the suit for possession against these defendants was not maintainable. The said defendants maintained that plaintiff could seek partition of the suit land by taking proceedings against the co-sharers. Accordingly, it was claimed that defendants No. 2 to 5 had been in possession of the suit land purchased by them as co-owners/co-sharers and, therefore the suit for possession against these defendants was not maintainable. The said defendants maintained that plaintiff could seek partition of the suit land by taking proceedings against the co-sharers. They further pleaded that mutation regarding the same has already been sanctioned and defendants No. 2 to 5 are in possession of the suit land as bonafide purchasers for value and without any notice. 6. The parties led their evidence before the learned trial Court. On the basis of the aforesaid evidence, the learned trial Court came to the conclusion that as per jamabandi Ex.P3, all the co-sharers were in possession of the suit land jointly and none of the co-sharers were shown to be in exclusive possession of the suit land. Accordingly, it was held that plaintiff was not shown to be in exclusive possession of the suit land at the time of creation of the mortgage. The only evidence in favour of the plaintiff, being recital in the mortgage deed qua the delivery of possession, was found to be not sufficient to hold the exclusive possession of the plaintiff and delivery thereof to defendant No.l. However, since defendant No.l had admitted that at the time of mortgage, he was actually delivered possession of 1 kanal 5 marlas of land by the plaintiff, therefore, the plaintiff could get the land redeemed on payment of Rs. 7500/ to defendant No. l but could get actual physical possession of only 1 kanal 5 marlas of land. Learned trial Court further held that sale deed in favour of defendants No. 2 to 5. Ex.DI had been val-idly executed by Chanchal Singh and Bakhshish Singh son of Surain Singh who were co-owners/co-sharers of the suit land. Through the aforesaid sale deed, land measuring 7 kanals 2 marlas had been sold to defendants No.2 to 5 and the possession of 5 kanals and 17 marlas had been delivered to them. The said sale deed was held to be a valid document. Consequently, the learned trial Court decreed the suit filed by the plaintiff for redemption on payment of Rs. The said sale deed was held to be a valid document. Consequently, the learned trial Court decreed the suit filed by the plaintiff for redemption on payment of Rs. 7500/- but held that plaintiff could get actual physical possession of land measuring I kanal 5 marlas only from defendant No. l. With regard to the remaining land the plaintiff was held entitled to file a petition for partition before the revenue authorities. 7. The plaintiff felt aggrieved against the aforesaid judgment of the learned trial. Court. He took up the matter in appeal. Defendants, remained satisfied and accepted the judgment of the trial Court. 8. The learned first appellate Court re-examined the controversy between the parties. Vide its judgment dated February 8, 1990, learned first appellate Court held that at the time of mortgage, the plaintiff had delivered the actual possession of the suit land to defendant No. 1 and, therefore, the plaintiff was entitled to seek possession of the entire suit land on redemption. However, the learned first appellate Court also affirmed the findings recorded by the trial Court with regard to the validity of the sale deed dated December 30, 1985, Ex.DI in favour of defendants No. 2 to 5. With regard to possession of defendants No. 2 to 5, learned first appellate Court found that defendants No. 2 to 5 are not proved to be in actual possession of the suit land. In view of the aforesaid findings recorded by the learned first appellate Court, the appeal filed by the plaintiff was allowed and the decree of the trial Court was modified to the extent that the plaintiff on payment of mortgage amount of Rs. 7500/- would be entitled to recover possession of the entire suit land from the defendants. 9. The defendants have now chosen to file the present regular second appeal challenging the judgment and decree of the learned first appellate Court. 10. I have heard Shri M.L.Sarin, Senior counsel appearing for the appellant and Shri S.C.Sibal, learned Senior counsel appearing for the plaintiff-respondent and with their assistance have also gone through the record of the case. 11. At the out set, it may be noticed that the present regular second appeal was filed by the plaintiff in the year 1990 under the provision of Section 41 of the Punjab Courts Act, 1980. 11. At the out set, it may be noticed that the present regular second appeal was filed by the plaintiff in the year 1990 under the provision of Section 41 of the Punjab Courts Act, 1980. A Full Bench of this Court in the case of Ghanpat v. Ram Devi, A.I.R. 1978 Punjab & Haryana 137 had taken a view that in view of the aforesaid Local Law (Punjab Courts Act), the amended provisions of Section 100 of the Code of Civil Procedure, as amended in 1976, were not applicable to the second appeals filed in this Court. Accordingly, no substantial question of law was framed nor the aforesaid regular second appeals were admitted on any such substantial question of law. However, the Hon ble Supreme Court of India in the case of Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by LRs and Ors. (2001-2)128 P.L.R. 492 (S.C.) has held that after the amend-merit of the Code of Civil Procedure in the year 1976, thereby amending Section 100, Section 41 of the Punjab Courts Act had become redundant and repugnant to the Central Act i.e. Code of Civil Procedure and therefore, was to be ignored and, therefore, the second appeal shall only lie to this Court under Section 100 of the amended Code of Civil Procedure on a substantial question of law. 12. In view of the law laid down by the Apex Court in Kulwant Kaur s (supra), during the course of arguments, the following substantial questions of law were found to have arisen in the present regular second appeal. (a) As to whether, a suit for possession by way of redemption could be filed by a mortgagor against such persons who were not party to the mortgage, seeking possession of the suit land from them? (b) Whether a decree for possession in a suit for redemption could be passed against strangers such as defendants No.2 to 5, who had no privity of contract with the plaintiff-mortgagor? (c) As to whether the judgment of the learned first appellate Court passed upon misreading and non-reading of important evidence, can be termed to be judicial perverse? 13. Shri M.L.Sarin, learned senior counsel appearing for the defendant-appellants has argued that both the Courts below have concurrently found it as a fact that sale deed Ex. (c) As to whether the judgment of the learned first appellate Court passed upon misreading and non-reading of important evidence, can be termed to be judicial perverse? 13. Shri M.L.Sarin, learned senior counsel appearing for the defendant-appellants has argued that both the Courts below have concurrently found it as a fact that sale deed Ex. D1 dated December 30, 1985 in favour of the defendants No.2 to 5 was legal and valid, having been executed by Chanchal Singh and Bakhshish Singh, the co-sharers of the suit land and the plea raised by the plaintiff that the aforesaid sale deed was invalid and illegal had been rejected. On that basis, it has been argued that once defendants No.2 to 5 had acquired a valid title in the suit land and the evidence on the record also showed that they had been delivered the actual possession of 5 kanal and 17 marlas of the suit land by the co-sharers, then the suit filed by the plaintiff seeking possession by way of redemption against defendant No. l, was not maintainable against defendants No.2 to 5. Consequently, it has been argued that no decree could have been passed against defendants No. 2 to 5 in such a suit, there being no privity of contract between defendants No. 2 to 5 and plaintiff. Learned Senior counsel has further argued that plaintiff was bound to show that he was in actual physical possession of the suit land at the time of the mortgage and that he had delivered the possession to defendant No. l at that point of time. In this regard my pointed attention has been drawn to jamabandi Ex.P3 and copy of mutation Ex.D2, wherein all the co-sharers are shown to be in possession of the suit land and there is no entry with regard to the plaintiff being in exclusive possession of any portion of the suit land. It has further been argued by the learned senior counsel that the learned first appellant Court had committed an error of law in shifting the entire onus upon defendants No.2 to 5 requiring them to prove that they had been delivered the possession of the suit land at the time of the sale deed in their favour by Chanchal Singh and Bakhshish Singh. On that basis, it has been prayed that the findings recorded by the learned first appellate Court were not only judicially perverse but the suit had been wrongly decreed entirely on the basis of misconception of law. 14. On the other hand, Shri S.C.Sibal, learned senior counsel appearing for the plaintiff-respondent has argued that plaintiff had mortgaged the suit land in favour of defendant No. l and at that time had delivered the possession thereof to him, which fact finds duly mentioned in the mortgage deed as well. On that basis, it has been argued that defendants No.2 to 5 who are the sons of defendants No. l are merely trying to prolong the possession of defendant No. l and since defendants No.2 to 5 were claiming possession through defendant No.l, therefore, they were also bound to deliver the possession to the plaintiff on redemption of the suit land. Learned senior counsel has further supported the findings recorded by the learned first appellate Court. 15. I have given my thoughtful consideration to the rival contentions of the learned Counsel for the parties. 16. The facts which emerge from the conjoint reading of the pleadings of the parties clearly show that execution of the mortgage deed by the plaintiff in favour of defendant No. l stands duly proved and has not even been denied by defendant No. l. Defendant No.l has further admitted that at the time of the execution of the mortgage deed he was delivered the actual physical possession of only 1 kanal 5 marlas of land and the plaintiff had undertaken to deliver the possession of the remaining land also after getting the same from the other co-sharers. It has further been claimed by aforesaid defendant No. l that possession of remaining land was neyer delivered to him. In these circumstances, it was for the plaintiff to have proved, by leading cogent evidence, that he had actually delivered the possession of the remaining land also to defendant no. 1 in pursuance to the mortgage deed. The only evidence available on the record is in the shape of revenue document is Ex.P3, copy of Jamabandi and Ex.D2 copy of mutation. In jamabandi Ex.P3, all the co-sharers were recorded to be in possession of the suit land. 1 in pursuance to the mortgage deed. The only evidence available on the record is in the shape of revenue document is Ex.P3, copy of Jamabandi and Ex.D2 copy of mutation. In jamabandi Ex.P3, all the co-sharers were recorded to be in possession of the suit land. In these circumstances, once the plaintiff is not recorded to be in exclusive possession of any portion of the joint land, then obviously the said document does not show him to be in actual possession of the suit land, in any manner. Learned first appellate court has shifted the entire onus upon the defendants when it has observed that there was no documentary evidence led by them to prove that Chanchal Singh and Bakhshish Singh sons of Surain Singh, the co-sharers of the suit land, were in actual possession of any part of the suit land before or at the time of making the sale deed Ex.Dl. In my considered view this approach of the learned first appellate Court is wholly erroneous. The plaintiff has to stand on his own legs and cannot take any advantage of the weakness of the evidence of the defendants. It was for the plaintiff to prove that he was in actual possession of the entire suit land at the time of mortgage deed and had delivered the possession thereof to defendant No. l. He has not been able to do so. In these circumstances, an inference drawn by the learned first Appellate Court that since the defendants No. 2 to 5 had not led any evidence to show that they had been delivered possession of the suit land at the time of sale deed Ex.D1. is wholly erroheous. Lack of evidence on the part of defendants No. 2 to 5, in this regard, is wholly irrelevant and inconsequential. Thus, when the plaintiff had not been able to prove that he was in actual physical possession of the suit land at the time of creation of the mortgage, but since defendant No.l had admitted that he had been delivered actual possession of 1 kanal 5 marlas of land only, therefore, the learned trial Court was wholly justified in decreeing the suit for actual physical possession qua that area only. In my considered view, the learned first appellate Court has committed an error of law in decreeing the suit for possession qua the entire land, on the basis of misreading and non reading of evidence and misconception of law. 17. The learned trial Court as well as the learned first Appellate Court have concurrently held that the sale deed Ex.D1 in favour of defendants No. 2 to 5 executed by Chanchal Singh and Bakshish Singh on December 30, 1985 is legal and valid. The said sale deed pertains to land measuring 7 kanals 2 inarlas. Thus, defendants No. 2 to 5 have become owners and co-sharers to the extent of area purchased by them through sale deed Fx.D1, Although in the sale deed, they have shown to have been delivered the possession of area purchased by them, but in view of evidence on record and also in view of admission of defendant No. 1 that only possession of 5 kanals and 17 marlas of land was delivered to defendants No. 2 to 5 and of 1 kanal 5 marlas was delivered to defendant No. l at the time of mortgage, it has to be held, as was rightly held by the learned trial court as well, that defendants No.2 to 5 were given possession of only 5 kanals and 17 marlas at the time of sale deed Ex.Dl. This fact has been conceded by the learned Counsel for the appellant during the course of arguments as well. In view of the aforesaid fact, defendants No.2 to 5 are in possession of area measuring 5 kanals 17 marlas in their own right and not through their father, defendant No. 1. Once defendants No.2 to 5 are shown to be independent title holders qua the purchased land, then obviously the plaintiff had no privity of contract with defendants No. 2 to 5, nor can the plaintiff claim that defendants No.2 to 5 are in possession of the land purchased by them under or through defendant No. l, In these circumstances, the suit for possession by way of redemption against defendants No. 2 to 5 on behalf of the plaintiff-mortgagor is not maintainable, nor can a decree for possession be passed against defendants No. 2 to 5 who are the cc-sharers of the suit land. The learned trial Court was wholly justified in relegating the plaintiff to seek possession of the remaining land in partition proceedings before the revenue authorities. 18. In view of the above observations, substantial questions (a) and (b) noticed above have to be answered in favour of defendants No. 2 to 5 and against the plaintiff and under substantial question (c) it has to be held that the judgment of the learned first appellate Court is judicially perverse and as such, not legally sustainable. 19. As a result of the aforesaid discussion, the present appeal is allowed and the judgment and decree of the learned first appellate Court are set aside. As a consequence thereof, the judgment and decree of the learned trial Court are restored. There shall be no order as to costs.