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2008 DIGILAW 1665 (PNJ)

Ass Mohammad v. Mohammad Hanif

2008-09-25

AJAY K.MITTAL

body2008
JUDGMENT Ajay Kumar Mittal, J.:-Being unsuccessful before the courts below, the plaintiff has approached this Court by way of present regular second appeal against the judgment and decree dated 20.2.2002 passed by the lower appellate court affirming that of the trial court dated 15.9.1999 whereby the suit of the plaintiff for declaration and permanent injunction was dismissed. 2. Briefly stated, the facts of the case are that the plaintiff was mortgagee in possession of the agricultural land comprising in khewat No. 54 khata No.85, rectangle No.65, killa No.5/1 measuring 4 kanals 18 marlas situated in the revenue estate of village Fatehpur Taga (hereinafter referred to as the “suit land”) as the same was initially mortgaged with possession by the predecessors-in-interest of the defendants with his predecessors-in-interest. It was pleaded that the suit land was not got redeemed by the defendants or their predecessors-in-interest and the period of limitation for redemption of the mortgage had already expired and the mortgagee rights of the plaintiff had matured into proprietory rights with the passage of time. It was further pleaded that the plaintiff was entitled to be recorded as absolute owner in possession of the suit land by way of a mutation in the revenue records and the defendants had no right, title or interest in the same. The plaintiff made several requests to the defendants to admit his claim but they refused to do so and that gave rise to the filing of the suit seeking a decree for declaration and permanent injunction. 3. The claim of the plaintiff was resisted by the defendants by filing a joint written statement and raising various preliminary objections therein. It was pleaded that defendant No.1 was the owner in possession of the suit land which came to him in the preemption decree dated 24.10.1983 passed in Civil Suit No. 286 of 14.5.1981 titled as Mohammad Hani Vs. Suraj Mal and prior to him one Suraj Mal was owner of the same who purchased from defendant No.2. It was further pleaded that the suit land was redeemed on 2.6.1964 by defendant No.2 on payment of Rs.250/- to the plaintiff as redemption money who executed a receipt in token thereof in favour of defendant No.2. It was also pleaded that on redemption possession of the suit land was handed over to defendant No.2 and the plaintiff had no concern with the same. 4. It was also pleaded that on redemption possession of the suit land was handed over to defendant No.2 and the plaintiff had no concern with the same. 4. The trial court vide judgment and decree dated 15.9.1999 dismissed the suit of the plaintiff holding that the suit land was got redeemed by defendant No.2 on payment of the redemption money to the plaintiff vide receipt Ex.D1 and the revenue record showing the plaintiff as mortgagee-in-possession was liable to be corrected. Further, it was observed that defendant No.1 had become owner in possession of the suit land by way of preemption. Feeling aggrieved, the plaintiff filed an appeal before the lower appellate court which vide judgment and decree dated 20.2.2002 affirmed the findings recorded by the trial court and dismissed the appeal. 5. I have heard the learned counsel for the parties and perused the record with their assistance. 6. Learned counsel for the plaintiff-appellant has submitted that the courts below have erred in relying upon the receipt, Ex.D1, executed in 1964 regarding the payment of the mortgage amount as the same was not a registered document. He has relied upon a Division Bench judgment of this Court in Gurdial Singh and others v. Kartar Singh and others, 1963 PLJ 341 in support of his aforesaid submission. 7. Learned counsel for the respondents has controverted the aforesaid submission and urged that vide notification No. S.O. 75/C.A.4/1882/ S.1/67 dated 5.8.1967 provisions of Section 59 of the Transfer of Property Act, 1882 (in short “the Act”) where the mortgage was to be by a registered document were extended to the State of Haryana with effect from the date of its publication and, therefore, the mortgage which was redeemed prior to the aforesaid date would not be governed by the provisions of Section 59 of the Act. 8. I find considerable force in the submission of the learned counsel for the respondents. 9. Section 59 of the Act reads as under:- “59. Mortgage when to be by assurance.- Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. 9. Section 59 of the Act reads as under:- “59. Mortgage when to be by assurance.- Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or except in the case of a simple mortgage by delivery of the property.” 10. Section 59 of the Act postulates that where the principal amount secured is Rs.100/- or more on immovable property, the instrument of mortgage is required to be registered, signed by the mortgagor and attested by at least two witnesses. There is, however, an exception to this provision in a case where mortgage is by deposit of title deeds. Accordingly, on the same principles, similarly at the time of extinction of mortgage covered by Section 59, a receipt for payment of money under a mortgage other than an endorsement on a mortgage deed (which is issued by a mortgagee) mentioning not only the payment of the full mortgaged amount but also the extinction of mortgage would require registration. 11. Admittedly, the property in the present case is situated in Faridabad District within the State of Haryana where provisions of Section 59 of the Act had not been made applicable at the time of original mortgage. It was only on August 5, 1967 that the provisions of the said Section came to be extended to the State of Haryana by the following notification:- “No. S.O. 75/C.A.4/1882/S.1/67.- In exercise of the powers conferred by section 1 of the Transfer of Property Act, 1882 (Central Act No. 4 of 1882), the Governor of Haryana is pleased to extend the provisions of section 59 of the said act to the State of Haryana with effect from the date of publication of this notification in the Official Gazette. B.R. GREWAL, Financial Commissioner, Revenue and Secretary to Government, Haryana, Revenue Department.” 12. In view of the above said notification and date of its enforcement, it is manifest that prior to 5th August, 1967, there was no impediment in creating a mortgage either orally or by an unregistered instrument. B.R. GREWAL, Financial Commissioner, Revenue and Secretary to Government, Haryana, Revenue Department.” 12. In view of the above said notification and date of its enforcement, it is manifest that prior to 5th August, 1967, there was no impediment in creating a mortgage either orally or by an unregistered instrument. The extinction of mortgage vide receipt, Ex.D1, on 2.6.1964, i.e. prior to enforcement of provisions of Section 59 of the Act to the State of Haryana by an unregistered instrument was legal and valid. The reliance on Gurdial Singh’s case (supra) by the learned counsel for the appellant is, thus, no help to him. 13. Both the courts on appreciation of the oral as well as the documentary evidence arrived at a conclusion that the suit land was got redeemed by the defendants on payment to the plaintiff vide receipt Ex.D1 and that defendant No.1 had become owner in possession of the same by pre-empting the sale made by defendant No.2 14. No illegality or perversity could be found in the judgment and decree dated 15.9.1999 passed by the trial court which was affirmed vide judgment and decree dated 20.2.2002 by the learned lower appellate court in appeal. 15. In view of the above, there is no merit in this appeal and the same is hereby dismissed. 16. Since the appeal has been dismissed on merits, no separate order is being passed in C.M. No. 4604-C of 2007 for condonation of 324 days’ delay in refiling the appeal and the same is disposed of as such. ----------------