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2009 DIGILAW 1177 (BOM)

Dharma Soma Tare v. Harischandra Gangaram Tare

2009-09-11

NISHITA MHATRE

body2009
Judgment : 1. This Second Appeal challenges the orders of both the trial Court as well as the lower appellate Court by which the appellant’s suit has been dismissed. When the appeal was admitted, the following substantial questions were raised: “Whether the plaintiffs i.e. the appellants are entitled to exemption of the Limitation Act in view of the provisions of the Order 7 Rule 6 of the CPC?” “Whether the deed of 16.1.1967 is a mortgage deed and the plaintiffs were entitled to redeem the mortgage at any time since the mortgage deed was not registered under the Registration Act, 1908?” 2. The facts giving rise to the present appeal are as follows: One Sitaram Tare was the owner of the suit land bearing Survey No.13/1 and Survey No.17, Hissa No.12 in Wadvali Taluka Kalyan, District Thane. Sitaram mortgaged these lands with Respondent No.1 on 16.1.1967 for an amount of Rs.1500/-. Sitaram required the money for his son’s marriage and it was agreed between the parties that the mortgage could be redeemed within 5 years. Admittedly, the mortgage deed has not been registered under the Registration Act. Sitaram expired in 1975. 3. On 8.3.1982, the appellants, who are the heirs and legal representatives of Sitaram, called upon the respondents not to obstruct their possession of the suit lands. The respondents by his letter of 17.3.1982 informed them that Sitaram had mortgaged the suit lands with him and therefore, they had no right over those lands since Sitaram had failed to redeem the lands within five years as agreed. On 26.5.1982, the appellants called upon the respondents to accept Rs.1,500/- and to hand over possession of the suit lands. The respondent refused to comply with the request of the appellants and therefore, the appellants instituted RCS No.535 of 1982 before the Joint Civil Judge, Junior Division, Kalyan on 29.1.1982. This suit was filed for redeeming the land on repayment of Rs.1500/- to the defendant i.e. the respondent herein. 4. In his written statement, the respondent denied that the plaintiffs were entitled to possession of the suit lands. He contended that the mortgage could not be redeemed after so many years when the parties had agreed that it could be redeemed only within five years. 5. The trial Court held after the evidence was recorded that the plaintiffs i.e. the appellants herein had proved that they were the heirs of Sitaram. He contended that the mortgage could not be redeemed after so many years when the parties had agreed that it could be redeemed only within five years. 5. The trial Court held after the evidence was recorded that the plaintiffs i.e. the appellants herein had proved that they were the heirs of Sitaram. They had also proved that Sitaram had mortgaged the property for Rs.1500/- to the respondent and that he had parted with possession of the suit property. However, the trial Court denied the plaintiffs the relief of redemption of the mortgage since the suit had not been filed within the period of limitation. The trial Court also construed the deed of 16.1.1967 as a mortgage by conditional sale. 6. Mr.Mandlik, the learned advocate for the appellants, submits that a suit for redemption of a mortgage is required to be filed within 30 years from the date fixed for redemption of the mortgage. He submits that since the deed of mortgage is not registered in accordance with The Registration Act, 1908 it can be enforced at any point in time and the appellants were entitled to the exemption from the law of limitation under Order 7 Rule 6. The learned advocate then submits that the Plaintiff is entitled to recover possession of the suit land as the defendant has no title or interest of any nature in the suit land and, therefore, is not entitled to remain in possession of the same. The learned advocate then relies on the judgment of the learned Single Judge of this Court in the case of Devidas Krishna Salunke vs. Tanubai w/o. Vasudeo Ghogare, ( 1999(1) Mh.L.J. 616 ) in support of his submission that since the plaintiffs’ claim for possession was based on title and not on the ground of dispossession, the suit was governed by the limitation prescribed under Article 65 of the Limitation Act. The learned advocate further submits that since no claim for adverse possession had been made by the defendant in respect of the suit property, the plaintiffs were entitled to possession of the suit property being the owners of the suit land. He also points out that the judgment in the case of Virendra Nath v/s. Mohd. The learned advocate further submits that since no claim for adverse possession had been made by the defendant in respect of the suit property, the plaintiffs were entitled to possession of the suit property being the owners of the suit land. He also points out that the judgment in the case of Virendra Nath v/s. Mohd. Jamil & Ors., (2004) 6 SCC 140 ) in support of his submission that when the nature of the possession of the defendant was as a mortgagee and the plaintiffs were ready and willing to pay the amount to redeem the mortgage, it ought to have been held by both the Courts below that the defendant was in permissive possession of the suit land. 7. The question therefore is, whether the suit has been filed within the period of limitation. The suit as framed is one for redemption of the mortgage which was created in 1967 in favour of the defendant. The parties had agreed that the defendant would be put in possession of the suit land in return for a loan of Rs. 1,500/- which Sitaram required for his son’s marriage. This amount was to be repaid within five years, failing which Sitaram agreed to sell the land to the defendant by accepting an additional amount from the defendant. Thus, the document though not registered is obviously one of a mortgage by conditional sale. The parties have proceeded in Court on the basis that this is a mortgage by conditional sale. The limitation prescribed for filing such a suit to redeem or recover possession of immovable property which has been mortgaged is 30 years under Article 61 of the Limitation Act. Admittedly, the document has not been registered and, therefore, both the Courts below have held that the title does not pass to the defendant on the basis of the mortgage deed. Therefore, the period of limitation which has to be considered is with respect to the possession of the immovable property on the basis of title. The limitation prescribed under the Limitation Act for such a suit is three years. Therefore, in my opinion, the suit which has been filed in 1982 is barred by limitation. The view of the both the Courts below regarding the issue of limitation must be upheld. 8. The limitation prescribed under the Limitation Act for such a suit is three years. Therefore, in my opinion, the suit which has been filed in 1982 is barred by limitation. The view of the both the Courts below regarding the issue of limitation must be upheld. 8. In the case of Devidas Krishna Salunke (supra), a suit was filed for restoration of the possession of a property on the ground that it belonged to the plaintiff and that the defendant was in permissive possession thereof. The plaintiff’s claim that he owned the property was neither disputed by the defendant nor was any plea of adverse possession raised by the defendant. From the material on record and on the analysis of the evidence the Court held that the suit was not based merely on the claim of dispossession for it to be governed by Article 64 of the Limitation Act. The Court held that the claim for possession was based on title of the plaintiff to the suit property. The Court therefore held that the applicability of Article 64 does not arise and instead the limitation prescribed under Article 65 was accepted as the correct period of limitation in the facts and circumstances of the case. In my view, this judgment is not relevant in the facts of the present case and therefore, it does not take the appellant’s case any further. The deed on which the plaintiff relies is dated 16.1.1967 and therefore viewing the situation from any angle, the suit is barred by limitation. 9. In the case of Virendra Nath (supra), the Supreme Court has observed that a mortgagor has no right to eject a mortgagee unless the mortgage is redeemed. Even though the mortgage has not been effected by a registered instrument if the entry of the person is on the land as a mortgagee, the nature of his possession would continue to be that of a mortgagee. This would be so unless there is evidence to show at any point of time that he asserted his adverse title by representing his possession as a mortgagee and continued in adverse possession for the prescribed period of more than 12 years to the knowledge of the mortgagor. This would be so unless there is evidence to show at any point of time that he asserted his adverse title by representing his possession as a mortgagee and continued in adverse possession for the prescribed period of more than 12 years to the knowledge of the mortgagor. The Court also held that there was no need for a substantial plea on the part of the original owner to indicate that the other person was to be in permissive possession. 10. In my opinion, this judgment would not be applicable to the facts and circumstances in the present case as the Supreme Court was dealing with the UP Consolidation of Holdings Act 1953 and the UP Zamindari Abolition and Land Reforms Act, 1950. In the present case, a mortgage by conditional sale was executed. The Defendant was in possession of the suit land, pursuant to this deed. Therefore, it was not necessary for the Defendant to claim title by adverse possession. 11. The trial Court and the appellate Court have rightly held that since the document on the basis of which the suit was filed for redemption of the suit land was not registered the limitation prescribed under Article 61 (a) or (b) would not be applicable. These articles would be applicable in case of a registered mortgage deed. It is for this reasons that the trial Court and the appellant Court held that the limitation prescribed under Article 61(a) and (b) would not be applicable. Therefore, the suit for possession of the suit land would be on the basis of title. The limitation prescribed for such a suit being 3 years, the suit was filed by the plaintiffs was not maintainable. 12. In the circumstances, the Appeal is dismissed.