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2005 DIGILAW 538 (MP)

RAM NATH v. BAIJNATH

2005-04-20

SUBHASH SAMVATSAR

body2005
( 1 ) THIS appeal is filed by the defendant challenging the judgment and decree dated 14-5-1997 passed by First additional District Judge, Morena in Civil appeal No. 145-A/94 whereby the first appellate Court has reversed the judgment and decree dated 9-11-94 passed by the Civil judge, Class I, Joura in Civil Suit No. 80-A/91 and thereby decreed the suit filed by the respondent Nos. 1 to 4 for redemption of a mortgage. ( 2 ) THE brief facts of the case are that the plaintiffs filed the present suit for redemption of mortgagee alleging that they are the bhumiswamis of an agricultural land bearing Survey No. 663/1, having an area of one bigha and fifteen biswas situated in village agrauta, tehsil Joura, district Morena. The land was initially owned by one Angad and the present plaintiffs are his heirs. Angad died in October 1969. The plaintiffs required a loan for performing last rites of deceased angad, therefore, they approached defendant no. 1, Ram Nath, for loan. On 18-12-1969 a sale-deed, Ex. P-1 was executed by plaintiff No. 1, Baijnath in favour of Ram nath. The sale deed was executed on his own behalf as well as on behalf of minors. In the said document it was also agreed that if the plaintiffs repay the amount of Rs. 1750. 00 within a period of two years then the property will be reconveyed to the plaintiffs. The possession of the property was also handed over to the defendant as mortgagee and thus a usufructuary mortgage was oreated. It was agreed that the mortgagee shall have no right to get his name mutated. It is also alleged that the plaintiffs have repaid the amount of Rs. 1750. 00 and, therefore, they are entitled for redemption. However, the defendant instead of reconvening the property has filed proceedings for mutation against the said property which was opposed. Ultimately, the matter went up to the Board of revenue and the objections of the plaintiffs were rejected and the name of the defendant was mutated. 1750. 00 and, therefore, they are entitled for redemption. However, the defendant instead of reconvening the property has filed proceedings for mutation against the said property which was opposed. Ultimately, the matter went up to the Board of revenue and the objections of the plaintiffs were rejected and the name of the defendant was mutated. ( 3 ) THE defendant filed his written statement alleging that the transaction in question was not a mortgage but was of a sale with a condition to reconvey the property within a period of two years and as the plaintiffs have failed to repay tthe amount within a period of two years, the plaintiffs have lost their title to the suit property. It is also alleged in the alternative that even if the property was mortgaged it was for a period of two years and in case the amount is repaid within two years the possession of the plaintiffs after expiry of two years has become hostile. It is also alleged that the suit which is filed for possession on 30-7-1991 has become barred by limitation. ( 4 ) THE trial Court dismissed the suit by holding that the transaction in question was that of a sale. The plaintiffs are not entitled for redemption of the property. The suit which is filed after expiry of a period of two years is barred by limitation under Articles 64 and 65 of the Limitation Act and dismissed the suit. On appeal, the lower appellate Court on interpretation of document, ex. P-1 has come to the conclusion that the transaction between the parties is that of a mortgage and not of a sale. The suit filed by the plaintiffs is within limitation under article 61 of the Limitation Act and limitation for filing a suit for redemption is thirty years and decreed me suit. Hence, this appeal. ( 5 ) THIS appeal is admitted by this Court on following substantial questions of law :-"1. Whether the findings of the first appellate court holding that the deed in question was infact a mortgage against the law laid down by the Supreme Court in the case reported in AIR 1963 SC 1906 ? 2. Whether the provisions of Section 91 of the Evidence Act were not considered by the first appellate Court while holding the alleged deed dated 18-12-69 as mortgage? 3. 2. Whether the provisions of Section 91 of the Evidence Act were not considered by the first appellate Court while holding the alleged deed dated 18-12-69 as mortgage? 3. Wheher the suit filed by the plaintiff was beyond limitation and was liable to be dismissed on that ground ?" ( 6 ) ANSWER to substantial questions of law nos. 1 and 2 depend on the inerpretation of document, Ex. P-1. If the document Ex. P-1 is construed as a sale-deed then the appellant is entiled to succeed in the appeal and if it is held that it is a mortgage deed then the question will be whether the suit is within limitation or not ? 1 and 2 depend on the inerpretation of document, Ex. P-1. If the document Ex. P-1 is construed as a sale-deed then the appellant is entiled to succeed in the appeal and if it is held that it is a mortgage deed then the question will be whether the suit is within limitation or not ? ( 7 ) IT is settled principle of law as has been laid down by the Apex Court in the case of Bhoju Mandal v Debnath Bhagat, air 1963 SC 1906 and in the case of P L bapuswami v N Pattay Gounder, AIR 1966 sc 902 that whether a document is a sale deed or a mortgage-deed is to be decided on the basis of the facts and circumstances of the case as it is open to the parties to lead evidence to prove the exact nature of the transaction For this purpose it is necessary to refer to the document, Ex P-1 The recital of the document Ex P-1 is conditional sale In the last sentence of Para 1 the parties have used the words "that the seller is ready to mortgage the suit property" Similarly in Para 2 of the said document the words ' conditions of sale' are mentioned at Page 3 of the document there is a condition that in case the amount is repaid within two years from the date of transaction, the purchaser shall return the property to the seller Considering the language used in ex P-1 and the evidence on record the lower appellate Court has come to the conclusion that the transaction in question is that of a mortgage and not the sale ( 8 ) MOREOVER, the condition of the repurchase is embodied in the document, Ex P-1 and the said document fulfills all the conditions of a mortgage and not the conditions as prescribed by Section 58 (c) of the Trans fer of Property Act and therefore the lower appellate Court has rightly held that the transaction in question is that of a mort gage ( 9 ) AS the possession of the property was handed over at the time of execution of the document the Court found that it was an usufructuary mortgage ( 10 ) THE property in question is an agricultural land and, therefore, the provisions of M P Land Revenue Code are applicable section 165 (2) (b) of the M. P, Land Revenue code provides that in case the mortgagee remains in possession of an agricultural land under an usufructuary mortgage it shall be deemed that the mortgage is redeemed after expiry of six years and, therefore, the property in question stands redeemed in view of Section 165 (2) of the M P Land Revenue Code( 11 ) NOW the question is whether the suit is within limitation or not Counsel for the appellant urged that the present suit is not on the basis of title and therefore, it will be governed by Article 64 of the Limitation Act and as the suit is not filed within twelves years from the date of expiry of two years period the suit is barred by limitation Ac cording to him as per Section 165 (2) (a) of the M P Land Revenue Code period of six years is maximum period In the present case as the parties have agreed to reconvey the property within two years, the period of limitation will start after expiry of two years and, therefore, the suit is barred by limitation He further submits that even if it is held that property is redeemed after expiry of six years i e in the year 1975, still the suit which filed in the year 1991 is barred by limitation and, therefore, the suit be dismissed as time barred For this purpose counsel for the appellant has relied upon a decision of this Court in the case of ramsingh v Kashiram 1997 RN 195 wherein it is held that once a period of six years is expired in case of usufructuary mortgage in respect of agricultural land then suit for redemption is not maintainable as the property is already redeemed by virtue of Section 165 (2) (a) of the M P Land Rev enue Code ( 12 ) FROM the perusal of the aforesaid judgment I find that this Court in the afore said case has not laid down about the na ture of possession of a mortgagee after expiry of the said period It is true that the suit for redemption will not lie as there is an automatic redemption but nonetheless a suit for possession is maintainable In the present case, the plaintiffs have not only prayed for the relief of redemption but have also prayed for possession which cannot be said to be not maintainable in view of the aforesaid judgment ( 13 ) NOW the question is whether what is the nature of possession of the mortgagee after automatic redemption and whether article 64 or 65 of the Limitation Act will be applicable in the present case Article 64 of the Limitation Act applies where the suit is filed merely on the basis of dispossession while Article 65 is applicable when the suit is filed for possession on the basis of title in the present case plaintiff in para one of the plaint have alleged that they are the title holder of the suit property They have also alleged in the plaint that being the owners they are entitled to possession of the suit land In such circumstances in my view the suit will be governed by Article 65 of the limitation Act and, therefore, unless and until it is not held that who defendant has acquired right to the suit property by way of adverse possession or his possession is hostile to that of plaintiffs the suit cannot be said to be barred by limitation. It is a settled principle of law that once a mortgage is always mortgage and the possession of the mortgagee will always remains that of a mortgagee even though the property is redeemed in the year 1975 or in the year 1971 as alleged by the defendant due to applicability of Section 165 (2) (a) of the M. P. Land revenue Code, still his possession shall be of mortgagee's and, therefore, his possession cannot be said to be hostile. ( 14 ) COUNSEL for the appellant submits that he has claimed hostile title by filing an application for mutation. From the perusal of the order, Ex. P-2, which was passed by tehsildar shows that the application for mutation was filed some time in the year 1983-84 as the number of case itself is 273/ 6/83-84. The order, Ex. P-2 is passed on 7-3-86. This shows that the defendant has started claiming title openly and in the knowledge of the plaintiffs first time in the year 1983. The present suit is filed in the year 1991 i. e. within twelve years of the denial of the plaintiff's title by the defendant. Thus, it cannot be said that in the present case that the defendant has acquired the title by way of adverse possession. The Apex court in the case of Virendra Nath through p. A. Holder R. R. Gupta v. Mohd. Jamil, (2004) 6 SCC 140 : AIR 2004 SC 3856 , has laid down that after a mortgagee who is in possession of the property on the basis of unregistered mortgage deed which is not admissible in evidence, his possession continues to be that of a mortgagee and not adverse possession to the of mortgagor. In view of the aforesaid judgment I find that present appeal is without any merit. The possession of the defendant still continues as that of a mortgagee and adverse to that of a plaintiff and the suit is within limitation. ( 15 ) IN the result, this appeal has no merits and it dismissed with costs throughout. Appeal dismissed. .