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2005 DIGILAW 232 (PNJ)

Manohar Lal v. Sunder Lal

2005-02-09

HEMANT GUPTA

body2005
Judgment Hemant Gupta, J. 1. The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below whereby the suit for declaration to the effect that the order passed by the Collector dated 29.12.1980 is illegal, null, void and ineffective and that the plaintiffs were entitled to possession of suit land measuring 10 kanals 11 marlas after redemption of the suit land. 2. It is the case of the plaintiffs that Shankar Lal, predecessor-in-interest of the plaintiffs was Dholidar. He mortgaged the land measuring 10 Kanals 11 Marlas with defendant on 4.4.1954 for consideration of Rs. 1,000/-. Earlier plaintiff filed an application for redemption of the suit land which was declined by the Collector and, therefore, the suit. 3. The defendant denied the mortgage effected on 4.4.1954 and also denied the right of the plaintiff to redeem the land. It was asserted that mortgage is more than 40 years ago. It was pleaded that the rights of deceased Shankar Lal, who was Dholidar on the said land was limited in nature and he has no right to mortgage or alienate the suit land in any manner. Therefore, the mortgage of the suit land is illegal, void ab initio and not established. The defendant also set up a plea that he was tenant prior to mortgage and, therefore, plaintiffs are not entitled to seek possession as the possession of the defendant is protected under Section 17 of the Punjab Security of Land Tenures Act, 1953 (hereinafter referred to as the Act). 4. The trial Court held that Shankar Lal, Dholidar of the suit land was competent to let, mortgage or sell the land to any person and, therefore, order of Collector dated 29.12.1980, Ex.P.3 holding that Dholi tenure is unalienable cannot be sustained. The trial Court also did not find any merit in issue raised by the defendant that the defendant is in cultivating possession of the suit land for last more than 40 years on the basis of Khasra girdawari, Ex.D-4 wherein the defendant is recorded in cultivating possession since Khariff 1954 i.e. June 1954. Thus, it was held that defendant was not a tenant prior to mortgage and, therefore, not entitled to seek protection under Section 17 of the aforesaid Act. However, in appeal, the First Appellate Court reversed the finding of the trial Court and held that Dholi tenure was not alienable. Thus, it was held that defendant was not a tenant prior to mortgage and, therefore, not entitled to seek protection under Section 17 of the aforesaid Act. However, in appeal, the First Appellate Court reversed the finding of the trial Court and held that Dholi tenure was not alienable. The reliance was placed by the First Appellate Court upon the judgment of Allahabad High Court reported as Siri Ram V/s. Thakur Dhan Bahadur Singh, AIR 1965 All 223. The First Appellate Court maintained the decree for possession on the ground that the plaintiffs may not be Dholidar, mortgagor but as Dholidar owner is entitled to possession from the defendant. The defendants are in permissive possession under the plaintiffs. However, the First Appellate Court maintained the finding that the possession of the defendant is not entitled to protection conferred under Section 17 of the Act. 5. The only argument raised on behalf of the appellant is that the defendant was a tenant prior to mortgage. However, both the Courts have recorded the concurrent finding of fact on the basis of khasra girdawari produced by the defendant to the effect that the possession of the defendant commences in Khariff 1954 i.e. after the mortgage. In the absence of any evidence of tenancy prior to creation of mortgage, there is no error of jurisdiction in the finding recorded by the Courts below that the defendant was not tenant prior to mortgage. 6. Though the judgment and decree passed by the First Appellate Court can be maintained on the findings recorded yet I am unable to agree with the finding recorded by the First Appellate Court that rule of estoppel against mortgagee denying the mortgagors title cannot be invoked by the plaintiffs. In fact, the learned First Appellate Court has applied the principal law laid down by the Allahabad High Court in a wrong manner. It has been held in the said judgment itself relying upon earlier judgment of Allahabad High Court reported as Jai Nandan Tewari V/s. Umrao Koei, AIR 1929 All 305, that it is well established that a mortgagee cannot deny the title of his mortgagor and set up adverse possession unless he actually leaves the holding and re-enters under a different status. The said judgment has also been relied upon by Hon ble Supreme Court in case reported as Ishwar Dass Jain V/s. Sohan Lal, AIR 2000 SC 426 , in which it has been held as under:- "The appellate Court, in our view, went wrong in thinking that the plaintiff had only a half share in the property. The defendants title was a derivating title as mortgagee. Having came into possession of the whole property as a mortgagee from the plaintiff, treating plaintiff as full owner it was not open to the defendant to question the title to the plaintiff. In Tasker V/s. Mall, (1836) My 8 Cr. 63:5 LJ Ch 321, Lord Cottenham said: "To him (mortgagee) it is immaterial, upon repayment of the money, whether the mortgagors title was good or bad. He is not at liberty to dispute it any more than a tenant is at liberty to dispute his landlords title." An usufructuary mortgagee cannot deny the title of his mortgagor. Nor can be set up adverse possession unless he actually leaves the holding and re-enters under a different status (Jainandan V/s. Umrao, AIR 1929 All 305 and Shriram V/s. Dhan Bahadur Singh, ." 7. Therefore, the rule of estoppel envisaged under Section 115 of the Evidence Act is very well applicable to the defendant-mortgagee who cannot deny the mortgagors title when admittedly he was inducted as a mortgagee by the said mortgagor. In view of the above, I do not find any substantial question of law arises for consideration.