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Punjab High Court · body

2007 DIGILAW 955 (PNJ)

Ishwar Chand v. Jai Parkash

2007-04-24

VINOD K.SHARMA

body2007
Judgment Vinod K.Sharma, J. 1. The present revision petition has been filed against the order passed by the learned Courts below accepting the application moved by the plaintiff-respondents under Order 39 Rules 1 & 2 of the Code of Civil Procedure. 2. The plaintiff-respondents filed a suit for declaration claiming that suit property measuring 13 Bighas 2 Biswas along with half share of well comprised in khasra No. 514, situated in the revenue estate of village Aurangabad, Tehsil and District Sonepat was earlier mortgaged with possession by the original owner-Smt. Premo to one Kabool Singh for mortgaged amount of Rs. 1,600/- on 11.6.1946. Mutation No. 328 dated 12.6.1946 was duly entered. The mortgage was said to be oral with simultaneous delivery of possession. As per the terms and conditions of the mortgage, amount of interest was equal to usufruct of the land. It was claimed that at the time of execution of the mortgage, the provisions of the Transfer of Property Act, 1882 were not applicable in the State of Punjab (now Haryana) and as such the limitation for redemption of mortgage started from the date of creation of mortgage, which, as per the Limitation Act 1908, was 60 years and when the said Act was later repealed by Limitation Act 1963, the limitation for redemption was reduced from 60 years to 30 years. During the consolidation proceedings, this property was allotted to Smt. Premo as mortgagor and Suraj Mal son of Kabool Singh as mortgagee with possession. Suraj Mal, who was successor-in-interest of his father Kabool Singh, the original mortgagee, sold his mortgagee rights to Chinta Ram, the predecessor-in-interest of present plaintiffs and the mutation bearing No. 430 was, accordingly, sanctioned on 9.1.1961. The sale of mortgagee rights was again for the original mortgage amount of Rs. 1,600/-. On the death of Smt. Premo on 27.9.1977, the inheritance was sanctioned in respect of the suit property, where she was recorded as mortgagor and Kabool Singh as the first mortgagee and Chinta Ram as second mortgagee. Suraj Mai son of Kabool Singh came into possession of this property from the date of purchase of mortgagee rights itself and is said to have remained in possession till his death on 5.01.1995. The plaintiffs claimed that Chinta Ram had acquired absolute right in the mortgaged property by lapse of time as provided for redemption of mortgaged property under Indian Limitation Act 1963. The plaintiffs claimed that Chinta Ram had acquired absolute right in the mortgaged property by lapse of time as provided for redemption of mortgaged property under Indian Limitation Act 1963. 3. It was further claimed that Chinta Ram was not required to file a suit for fore-closure. As such, he became absolute owner in possession of the suit property after the expiry of period of limitation provided for redemption of the mortgaged property. It was also claimed that successor-in-interest of Smt. Premo, namely Om Parkash also did not get the mortgaged property redeemed within the stipulated period under the Indian Limitation Act 1963. 4. It was also the case of the plaintiffs that after the death of Chinta Ram, the mortgagee rights and other rights of Chinta Ram came to Om Parkash as son and predeces-sor-in-interest of the plaintiff on the basis of Regd. Will dated 1.6.1976 executed by Chinta Ram. Ajudhya Prasad, deceased predecessor-in-interest of defendants filed a suit for possession of agricultural land which included the suit property itself against Om Parkash. The possession was claimed from Om Parkash on the ground that Ajudhya Prasad was the nearest collateral of Premo Devi and the Will executed by Premo in favour of Om Parkash is illegal and not binding on his rights. The said suit was dismissed by the learned lower Court and allowed by the learned. First Appellate Court. The order passed by the learned lower Appellate Court was upheld by this Court. During the pendency of second appeal before this Court, Ajudhya Prasad and Om Parkash died and their legal representatives were brought on record. Thus, the suit filed by the defendants was decided in their favour and on the basis of the said decree, execution petition was filed for seeking possession from the plaintiff-respondents. 5. During the pendency of the execution proceedings, the plaintiff-respondents filed the suit on the basis of their having acquired ownership on the basis of mortgagee rights of Chinta Ram, which came to the hands of Om Parkash and then to the present plaintiff-respondents. 6. It was also claimed that since at the time of Chinta Ram when the mortgagee rights were purchased from Sural Mal, the present defendants were not entitled to possession by way of decree ultimately decided in R.S.A. No. 827 of 1983. 7. 6. It was also claimed that since at the time of Chinta Ram when the mortgagee rights were purchased from Sural Mal, the present defendants were not entitled to possession by way of decree ultimately decided in R.S.A. No. 827 of 1983. 7. The petitioner-defendants filed a detailed written statement taking preliminary objections that the suit was not maintainable, the plaintiffs have no locus-standi and cause of action to file the same and also the plaintiffs are estopped by their own act and conduct from filing the present suit. It was further claimed that the suit was an abuse of process of the Court. 8. On merits, the allegations made in the plaint were denied. The factum of property having been mortgaged was denied. The sanctioning of mutation on the basis of said mortgage was also denied. It was also claimed that the entries made in the revenue record were totally wrong and procured by misrepresentation of facts and fraud. However, it was admitted that Smt. Premo was given property in consolidation proceedings, but subsequently it was denied that the same was in capacity of being a mortgagor. 9. The fact regarding the mortgage standing in favour of Kabool Singh and then to his son Suraj Mal, who transferred mortgagee rights in favour of Chinta Ram, the predecessor-in-interest of the present plaintiffs, was also denied.The averment regarding mutation and entries in the revenue record was also denied. However, it was admitted that Smt. Premo had died in the year 1977. The possession of the plaintiffs over the suit land was admitted, but that was said to be that of tress-passers. It was admitted that suit for possession was earlier filed by the petitioner-defendants, which was decreed in their favour by a final order passed in R.S.A. No. 827 of 1983. It was the stand of the petitioner-defendants that execution petition has been filed for execution of the said decree in the trial Court. Before the trial Court along with the suit an application under Order 39 Rules 1 & 2 of the C.P.C. was moved by the plaintiff-respondents restraining the petitioner-defendants from interfering in their possession. 10. It was the stand of the petitioner-defendants that execution petition has been filed for execution of the said decree in the trial Court. Before the trial Court along with the suit an application under Order 39 Rules 1 & 2 of the C.P.C. was moved by the plaintiff-respondents restraining the petitioner-defendants from interfering in their possession. 10. The learned trial Court discussed the law regarding right of mortgagee under law and on consideration of the fact that the mortgage was not redeemed within the period of limitation came to the conclusion that the plaintiff had become owner with regard to the property being a mortgagee. The learned trial Court further held that in view of the ripening of the mortgagee rights into ownership, the suit for declaration was competent. The plea of the petitioner-defendants that right, if any, of the plaintiffs has to be decided by the executing Court and no stay can be granted was rejected by observing that it was during the adjudication of the first suit between the parties that the plaintiff-respondents got a fresh cause of action under a fresh right and, therefore, it was held that the relief claimed was not to be adjudicated under Section 47 read with Order 21 Rules 97 and 99 of the Code of Civil Procedure. The learned trial Court, therefore, held that as the petitioner-defendants had not redeemed the property within a period of limitation, therefore, the plaintiff-respondents had a right to maintain the suit and had a prima facie case in their favour. It was further held that the balance of convenience was in favour of the plaintiff-respondents and they were likely to suffer an irreparable loss if the injunction is not granted. 11. The petitioner-defendants filed an appeal against the order passed by the learned trial Court. The learned lower Appellate Court rejected the appeal by observing that the matter of mortgagee rights was not considered in the earlier suit nor the same was dealt with by this Court at the time of setting aside the Will and passing the decree of possession in favour of the appellants. The learned lower Appellate Court concurred with the findings recorded by the learned trial Court and accordingly dismissed the appeal. The learned lower Appellate Court concurred with the findings recorded by the learned trial Court and accordingly dismissed the appeal. The learned lower Appellate Court was further pleased to observe that it was not open to the defendant-petitioners to get possession of the property in dispute without redemption of the same and an observation was made that the right of defendant-petitioners was barred under Order 2 Rule 2 of the C.P.C. 12. Mr. M.L. Sarin, Learned senior counsel, appearing on behalf of the petitioners vehemently contended that the order passed by the learned Courts below cannot be sustained. The contention of the learned Counsel was that in view of the decree of possession having been passed in favour of the petitioner-defendants which was being executed by due process of law, there was no prima facie case in favour of the plaintiff-respondents and, therefore, their application ought to have been dismissed. 13. Learned senior counsel for the petitioners further contended that the suit filed by the plaintiff-respondents was prima facie not competent as the same was barred by principle of res judicata. In support of his contention, the learned senior counsel placed reliance on Explanation IV to Section 11 to contend that in the present case the principle of constructive res judicata would be applicable. Explanation IV to Section II, reads as under: Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the parties, or between parties under whom they are or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the title in which such issue has been subsequently raised, and has been heard and finally decided by such Court. xxx xxx xxx xxx xxx xxx xxx Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 14. The contention of the learned senior counsel for the petitioners was that the learned Courts below misdirected themselves and wrongly came to the conclusion that the claim of the petitioner-defendants was hit by Order 2 Rule 2 of the Code of Civil Procedure. The contention raised by the learned Counsel has force. 15. 14. The contention of the learned senior counsel for the petitioners was that the learned Courts below misdirected themselves and wrongly came to the conclusion that the claim of the petitioner-defendants was hit by Order 2 Rule 2 of the Code of Civil Procedure. The contention raised by the learned Counsel has force. 15. It is not in dispute that the decree for possession has been passed against the plaintiff-respondents, it was always open to take all defences available to them in the previous suit and once the decree for possession was passed in favour of the defendant-petitioners, it was not open to the learned Courts below to have granted an injunction in favour of the plaintiff-respondents. The existence of the decree passed after contest would show that the plaintiff-respondents did not have prima facie case in view of the provisions contained in Section 11 of the Code of Civil Procedure. This view of mine finds support from the judgment of the Honble Supreme Court in the case of An-naimuthu Thevar (dead) by L.Rs. v. Alagammal and Ors., on which reliance was placed by the learned senior counsel for the petitioners. Paras 29 to 34 of the said judgment read as under: 29. The former suit in which decree of permanent injunction was sought was clearly founded on the claim of Muthuswami as the owner of the suit house to execute a mortgage. The issue of title or ownership of the suit house was thus directly or substantially involved in the former suit. 30. We find sufficient force in the alternative contention advanced on behalf of the wife Alagammal and her children that the doctrine of constructive res judicata, as contained in Explanation IV to Section 11 of the Code certainly can be invoked against the present appellant, who claims by a purchase from Muthuswami. Explanation IV to Section 11 of the Code States: Explanation IV.- Any matter which might and sought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 31. In the former suit, respondent Alagammal, the wife of Muthuswami clearly set up her own right of ownership to the suit house on the basis of settlement and relinquishment of the suit house in her favour by the husband in the village Panchayat. 31. In the former suit, respondent Alagammal, the wife of Muthuswami clearly set up her own right of ownership to the suit house on the basis of settlement and relinquishment of the suit house in her favour by the husband in the village Panchayat. Claim of such ownership and title might have been found ineffectual in law, as pursuant to such oral relinquishment in the village Panchayat the husband did not execute any formal written and registered document. On the aforesaid plea of wife Alagammal, in the former suit in which she had set up claim of ownership of the suit house on the relinquishment of right by her husband in the village Panchayat, it was open to her husband Muthuswami and his mortgagee to raise a counter-plea that the alleged oral relinquishment in the village Panchayat was ineffectual in law and conferred no title on her. 32. In the former suit the wife had claimed to be in possession with her children of the suit house pursuant to the settlement reached with her husband in the village Panchayat. In the former suit, in reply to plea of the wife, it was open to the plaintiffs to alternatively seek a decree of possession on the basis of their title to the suit house. 33. On the date of former suit, it is true that there was no formal document of conveyance of the suit house executed by the Society in favour of Muthuswami. There existed on that date merely a right he had inherited in the house allotted to his late mother. Between an allottee of the house from the Housing Society and the person merely in occupation as licensee or member of the family, the allottee has a better title. In the former suit, the claim of Mutuswami was as an heir of his late mother who was the allottee of the house and was in possession. As against him, the claim set up by his wife was of an oral relinquishment by Muthuswami in her favour in the village Panchayat. Between these two competing claims of ownership and the right of possession of the suit house, the husband certainly had a better right to remain in possession and, if dispossessed, to claim possession. This ground of seeking possession and permanent injunction was available to Muthuswami against his wife in support of his joint claim with his mortgagee. Between these two competing claims of ownership and the right of possession of the suit house, the husband certainly had a better right to remain in possession and, if dispossessed, to claim possession. This ground of seeking possession and permanent injunction was available to Muthuswami against his wife in support of his joint claim with his mortgagee. The aforesaid plea founded on ownership and mortgage having not been raised in the former suit, the doctrine of constructive res judicata under Explanation IV to Section 11 of the Code is clearly attracted. 34. We cannot be prepared to accept the argument advanced on behalf of the above appellant as the successor-in-title of Muthuswami that in the absence of formal deed of conveyance of the suit house by the Housing Society in favour of Muthuswami, the issue of the title to the suit house could neither be raised nor was raised in the former suit. On the examination of the case pleaded by the parties in the former suit and the judgment rendered therein we find that the plea of ownership to the suit house was substantially involved for seeking relief of permanent injunction. Undoubtedly, such plea of ownership could and ought to have been raised in the former suit. Therefore, this subsequent suit, filed by the present appellant as purchaser from Muthuswami is barred by the doctrine of constructive res judicata and the High Court was right in holding accordingly. See the following observations of this Court in the case of Sulochana Amma V/s. Narayanan Nair 1999 (2) S.C.C. 14, P.20. Para 9. It was contended that the remedy of injunction is an equitable relief and in equity, the doctrine of res judicata cannot be extended to a decree of a court of limited pecuniary jurisdiction. We find no force in a contention. It is settled law that in a suit for injunction, the issue directly and substantially arises in that suit between the parties. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. 16. Mr. When the same issue is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit the decree in the injunction suit equally operates as res judicata. 16. Mr. R.S. Mittal, senior counsel, appearing on behalf of the respondents, however, contended that as the matter of mortgage was not in dispute in the previous suit, therefore, the learned Courts below were right in granting injunction in favour of the plaintiff-respondents. The contention of the learned senior counsel for the respondents was that the concurrent findings recorded by the learned Courts below should not be upset in exercise of revisional jurisdiction, as the findings are based on established law that on expiry of period of limitation fixed for redemption of mortgage, the mortgagee rights ripen into ownership and, therefore, the plaintiff-respondents were entitled to protect their possession. I find no force in this contention of the learned Counsel. 17. Section 11 of the Code of Civil Procedure is a substantive law which bars the filing of subsequent suit on a plea which was available to a party in the previous suit. Even otherwise, it was not open to the Courts below to pass an injunction order against the execution of a lawful decree. Thus, the learned Courts below were wrong in coming to the conclusions that the plaintiff-respondents had a prima case in their favour. The learned Courts below have exercised the jurisdiction which did not vest in them in entertaining a suit against execution of a decree though all questions relating to the title and all objections are to be tried by the executing Court alone. 18. Consequently, this revision petition is allowed, the judgments and decrees passed by the learned Courts below are set aside and the application moved by the plaintiff-respondents under Order 39 Rules 1 & 2 of the Code of Civil Procedure is ordered to be dismissed. 19. However, nothing stated above shall be deemed to be an expression of opinion on merits of the case.