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2009 DIGILAW 501 (JK)

Raja v. Special Tribunal, J&K

2009-10-21

BARIN GHOSH, MUZAFFAR HUSSAIN ATTAR

body2009
1. The land, being the subject-matter of this appeal, belonged to one Gaffar Najar. He died leaving a son, Wahab, and one daughter, Mst. Azmi. After death of Gaffar Najar, his landed properties were mutated in the names of Wahab and Mst. Azmi in equal shares. Wahab died leaving his widow, Azizi, as his sole heir. On death of Wahab, the land, being the subject-matter of appeal, was mutated in the name of his widow, Mst. Azizi. On October 22, 1945, Mst. Azizi entered into an agreement whereby and under she agreed to mortgage the land in favour of ancestors of the appellants and proforma respondents, and handed over possession thereof to them. On July 1, 1948, Mst. Azizi executed and registered a mortgage deed in favour of the ancestors of the appellants and proforma respondents. The mortgage deed did not specify the date or the period by which the mortgage could be redeemed. Mst. Azizi died in the year 1964, whereupon reversioners, being the children of Mst. Azmi, namely, the respondent no.4, the daughter, and Hassan, the son of Mst. Azmi, got the land, being the subject-matter of appeal, mutated in their name. Respondents 5, 6 and 7 are the heirs of Hassan. 2. In a suit instituted on May 11, 1970, the respondents claimed recovery of possession of the land in question from the appellants. In the suit, they contended that Mst. Azizi had limited interest in the land in question and, accordingly, had no right to mortgage the same. It was also contended that the ancestors of the appellants and the proforma respondents obtained the mortgage by exercising undue influence and by making misrepresentation of facts and / or by perpetrating fraud. In the suit, the appellants filed a written-statement whereby and under they contended that Mst. Azizi had right to create a mortgage and the mortgage in question was validly executed. 3. While the suit was pending for trial, in 1978 J&K Agrarian Reforms Act, 1976 came into force. The Court, before whom the suit was pending, forwarded the case to the Collector, Kulgam for taking steps under the said Act. The Collector in the year 1993 held that, since the validity of the mortgage deed was in question in the suit, the civil court alone can decide the same. The Court, before whom the suit was pending, forwarded the case to the Collector, Kulgam for taking steps under the said Act. The Collector in the year 1993 held that, since the validity of the mortgage deed was in question in the suit, the civil court alone can decide the same. The respondents preferred an appeal against the said decision before the Joint Agrarian Reforms Commissioner, who upheld the said decision of the Collector. The respondents then filed a revision before the Special Tribunal, J&K, against the said order of the Joint Agrarian Reforms Commissioner. The Tribunal by its order dated August 1, 1996, allowed the revision and ordered as follows: "The orders of the Collector and Joint Agrarian Reforms Commissioner are, therefore, modified to this extent that the petitioners have available forum of Collector under Section 10 of the Agrarian Reforms Act and so the whole record is sent down to the Collector concerned for disposal under law in terms of Section 10 of Agrarian Reforms Act." 4. No challenge was thrown to this order of the Tribunal and, accordingly, the same reached finality. 5. Thereupon, the Assistant Settlement Officer, Kashmir, who by that time had been designated as Collector for Kashmir Province under the said Act, on November 4, 1997, held for the reasons recorded in an order that redemption of mortgage cannot be allowed in favour of the respondents. The respondents then preferred an appeal before the Financial Commissioner-cum-Commissioner Agrarian Reforms, J&K at Srinagar, who, by an order dated April 6, 1999, reversed the findings of the Assistant Settlement Officer Kashmir and held that the factum of mortgage is established and it is on that basis the appellants came into possession of the land, and, accordingly, directed the Assistant Settlement Officer, Kashmir to dispose of the application for redemption of mortgage under Section 10 of the said Act. The order of the Financial Commissioner-cum-Commissioner Agrarian Reforms, J&K, Srinagar, dated April 6, 1999 was assailed by the appellants before the J&K Special Tribunal, Srinagar by way of a revision, who by its decision dated January 30, 2001, held that the revision is devoid of merit and deserves to be dismissed and ordered accordingly. However, after having ordered thus, he gave certain guidelines to the Assistant Settlement Officer. However, after having ordered thus, he gave certain guidelines to the Assistant Settlement Officer. Those guidelines are as follows: "i) that he will evaluate the usufruct collected by the mortgagee or his successors in interest from the date of entering into possession on the said land by Shaban Najar, their ancestor; ii) he will calculate as to what was the amount due to be raised from the mortgaged property by the mortgagee or his successors in interest and as to whether the said amount has already been liquidated; iii) if the mortgage money has not been raised so far by the mortgagee or his successors in interest, he shall order the payment of the remaining portion of mortgage money after proper calculation in terms of the formula laid down under section 10 of A. R. Act by instalments from the successors in interest of the mortgagor; iv) he shall handover the possession of the mortgaged land to the contesting respondents; v) in the light of the fact that more than 30 years have elapsed from the date of institution of this litigation, this all exercise shall be completed within a period of three months from the date the records are received by the A. S. O." 6. The orders of the Financial Commissioner-cum- Commissioner Agrarian Reforms, J&K, Srinagar, dated April 6, 1999 as also the order of the J&K Special Tribunal, Srinagar, were assailed by the appellants in a writ petition, registered as OWP no. 75/2001. By the judgment and order under appeal dated June 4, 2008 the said writ petition was dismissed with costs quantified at Rs.10,000. While doing so, however, the learned Judge referred to second proviso to clause (b) of Sub-Section (2) of Section 10 of the said Act and held that the observations made by the Tribunal to the extent of the guidelines nos. 1, 2, 3 and 5, as set out above, are to be ignored. 7. As was urged by the appellants in the writ petition, so they have urged before us that the suit was not for redemption and, accordingly, the question of redemption cannot be gone in, in the suit. It was contended that Section 10 of the Act requires an application to be filed. Admittedly, no such application was filed. 7. As was urged by the appellants in the writ petition, so they have urged before us that the suit was not for redemption and, accordingly, the question of redemption cannot be gone in, in the suit. It was contended that Section 10 of the Act requires an application to be filed. Admittedly, no such application was filed. It was also contended that a suit filed prior to coming into force of the Act could not be treated, under any circumstances, as an application made under the Act. Learned counsel further contended that the appellants came in possession of the land in question on October 22, 1945, and such possession could not be affected by Section 10 of the Act. It was next contended that, in any event, the appellants were tillers in Kharif 1971 to which there cannot be any dispute and, accordingly, in terms of the provisions of the said Act, the land vested in the appellants. It was also contended that in acknowledgement of the fact that the appellants were tillers of the land in question since before and after Kharif 1971, by an order the names of the appellants were mutated under Sections 4 and 8 of the Act, to which no challenge has been thrown. 8. The learned counsel appearing on behalf of the respondents submitted that in a suit, where possession has been sought alongwith a declaration that the mortgage was invalid, the court has ample authority to allow such possession even if invalidity of the mortgage, as claimed in the suit, is not upheld, by directing the plaintiff to redeem the mortgage. The learned counsel further submitted that, accordingly, the claim for redemption was inherent in the suit. He submitted that during pendency of the suit, the said Act came into force and, accordingly, the claims in the suit could only be dealt with and decided by the authorities under the Act. He added that in such view of the matter, the court, before whom the suit was pending, forwarded the case to the Collector, Kulgam for taking steps under the Act and the said action on the part of the court was not challenged or assailed by the appellants. He added that in such view of the matter, the court, before whom the suit was pending, forwarded the case to the Collector, Kulgam for taking steps under the Act and the said action on the part of the court was not challenged or assailed by the appellants. It was submitted that the Tribunal by its order dated August 1, 1996 made it clear that the respondents have availed the forum of Collector under Section 10 of the Act and, accordingly, the whole record was sent down to the Collector concerned for disposal under law in terms of Section 10 of the Act. While this decision of the Tribunal was not challenged, the respondents appeared before the Collector under the Act and contested the claim of the respondents under Section 10 of the Act without any reservation. It was submitted that in such circumstances, it is too late for the appellants to contend what they had contended in the writ petition and what has been repeated before this Court. It was lastly contended that the mutation order was passed without notice to the respondents and, in any event, after the suit was filed and, accordingly, the said order is of no effect as the same is subject to the outcome of the proceedings directed to be disposed of by the Tribunal by its order dated August 1, 1996 and, therefore, no independent challenge thereto is required. 9. In Guruswami v. Govindappa, reported in AIR 1933 Madras 762, cited by learned counsel for the respondents, a Division Bench of the Madras High Court was considering whether the Court has power under Order XXXIV Rule 7 of the Code of Civil Procedure to extend the time for payment. In that case, the suit was for declaration that a certain mortgage executed by the widow was invalid, and for possession. It was found that part of the mortgage debt was valid and binding and a decree for possession was passed conditional on payment of certain amount within certain time which was made a charge on the property. The question that cropped up was whether, when a decree had thus been passed in such a suit, the Court had power under Order XXXIV Rule 7 of the Code to extend the time for payment? The question that cropped up was whether, when a decree had thus been passed in such a suit, the Court had power under Order XXXIV Rule 7 of the Code to extend the time for payment? It was held that even though the suit was not for redemption of a mortgage, the decree was in the form of a decree for redemption, and that the Court had jurisdiction to extend the time for payment under Order XXXIV Rule 7 of the Code. Before the Division Bench, it was urged that the suit was not a suit for redemption and the decree in such a suit cannot be called a redemption decree. The Division Bench did not agree with the said contention. It stated that if a mortgagor sues for recovery of possession, alleging that the mortgage deed has been fully discharged and frames a suit as one for ejectment, but the Court finds that some amount is still due under the mortgage and the plaintiff cannot recover possession without discharging the debt, the Court can pass a conditional decree and such decree is virtually a redemption decree. A reading of the said judgment makes it clear that when possession is claimed on the allegation that the mortgage is invalid or the same stands extinguished by reason of discharge of mortgage debt, the Court, if holds that the mortgage is valid or the mortgage debt has not been discharged, can decree the suit for possession conditional upon payment of the mortgage debt. In the circumstances, it appears, when a suit is filed claiming possession on the ground that the mortgage is invalid, redemption of the mortgage is incidental to such suit. 10. In Manickchand v. Saleh Mohd., reported in AIR 1969 SC 751, cited by the learned counsel for the appellants, the Honble Supreme Court was concerned with a suit for accounts. One of the questions, which came up for consideration, was whether accounts pertaining to mortgage could be sought for in the suit so framed? As a result, it was necessary to go into the question whether the suit was a suit for redemption of a security. The same was dealt with by the Honble Supreme Court in paragraph 13 of the judgment. As a result, it was necessary to go into the question whether the suit was a suit for redemption of a security. The same was dealt with by the Honble Supreme Court in paragraph 13 of the judgment. The Honble Supreme Court held that Section 60 of the Transfer of Property Act (Central), which is identical to Section 60 of the State Transfer of Property Act, recognises the right of a mortgagor, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgagor the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished. The Honble Supreme Court further held in the said paragraph of the said judgment that the suit for redemption is thus defined by this section as a suit for enforcement of a right to redeem, and that, right to redeem consists of the three reliefs which the mortgagor is entitled to under clauses (a), (b) and (c) mentioned above, on payment or tender, at a proper time and place, of the mortgage money, and consequentially, a suit can be said to be a suit for redemption if the three rights enumerated in this section as constituting the right to redeem are claimed in the suit, or, if the suit is for redemption, and that a suit would be a suit for redemption even if one of those three rights is claimed in the suit. 11. In the instant case, the claim in the suit was to deliver possession on the ground that the mortgage is invalid. Such a claim would squarely make the suit as a suit for redemption. In the case before the Honble Supreme Court, the transferee of the original mortgagors had filed an application under section 83 of the Transfer of Property Act after making a deposit. Such a claim would squarely make the suit as a suit for redemption. In the case before the Honble Supreme Court, the transferee of the original mortgagors had filed an application under section 83 of the Transfer of Property Act after making a deposit. That deposit had been accepted by the mortgagee, whereupon necessary documents had been delivered to the mortgagors together with possession of the mortgaged property. The Honble Supreme Court in that background held that the reliefs, which could have been claimed in a suit for redemption as envisaged by Section 60 of the Transfer of Property Act, had thus been obtained under Section 83 of that Act even prior to the institution of the suit and, accordingly, there was no occasion for claiming any of those reliefs. The Honble Supreme Court, accordingly, pronounced that the suit considered by them was not a suit for redemption of a security. 12. In view of the law thus laid down, it is clear that when possession is claimed in a suit, holding out that the defendant is in possession of the land on the strength of an invalid mortgage, the suit is a suit for redemption, inasmuch, in the event the Court holds that the mortgage is a valid mortgage, the claim for possession cannot be denied by the Court merely because the mortgage is a valid mortgage. It then becomes obligatory on its part to see whether the mortgage can be redeemed within the time limited by the law of Limitation and, if so, to allow such redemption upon payment of the mortgage debt. 13. We, therefore, hold that the suit thus framed was a suit for redemption. 14. Further more, when the civil court forwarded the suit to the Collector, the appellant did not object, and ultimately, when the Tribunal by its order dated August 1, 1996 sent down the records of the suit to the Collector for disposal thereof in terms of Section 10 of the Agrarian Reforms Act, the appellant permitted the said order to reach finality by not challenging the same. In such view of the matter, we are of the view that the appellants are also estopped from contending that the suit was not a suit for redemption. 15. Before we proceed further, it would be appropriate on our part to take note of a few of the provisions of the said Act. In such view of the matter, we are of the view that the appellants are also estopped from contending that the suit was not a suit for redemption. 15. Before we proceed further, it would be appropriate on our part to take note of a few of the provisions of the said Act. In this connection, reference may be had to Subsections (17) and (18) of Section 3; and Section 4; Subsection (2) of Section 8 and Sub-section (2) of Section 10 of the Act, which are as follows: "3(17) `tiller means tenant cultivating land personally and shall mean and include a person who was tiller in Kharif, 1971 or his legal heirs or his transferee in the case of any valid transfer of land made between 1st September, 1971 and 1st May, 1973, subject to the competent Revenue Officer being satisfied about the existence of a bona fide transfer to this effect. 3(18) Words and expressions not defined in this Act shall have the meaning as assigned to them in the Jammu and Kashmir Majority Act, Samvat 1977, the Jammu and Kashmir Tenancy Act, Samvat 1980, the Jammu and Kashmir Land Revenue Act, Samvat 1996, and the Jammu and Kashmir Displaced Persons (Permanent Settlement) Act, 1971. 4. Vesting in the State of rights in land not held in personal cultivation: (1) Notwithstanding anything contained in any law for the time being in force, but subject to the provisions of this Chapter, all rights, title and interest in land of any person, not cultivating it personally in Kharief 1971, shall be deemed to have extinguished and vested in the State, free from encumbrances, with effect from the first day of May, 1973. (2) Nothing in sub-section (1) shall apply to.- (a) land held by gumpas of Ladakh District; Provided that the rights of tenants thereof shall be heritable according to the law of succession applicable to occupancy tenants and no tenant or his successor shall be subject to payment of rent exceeding the prevailing rent, whether in cash or in kind; (b) (i) unit of land not exceeding 182 kanals including residential sites, bedzars and safedzars; and (ii) land held by such places of worship, Wakfs or Dharmashallas, as are recorded in the revenue records or notified by the Government from time to time or donated for purposes of Wakaf by any person professing Islam or used as a Wakaf property; Provided that the rights of a tenant thereof shall be heritable according to the law of succession applicable to occupancy tenants. (c) land mentioned in Schedule II allotted to a displaced person; Provided that:- (i) such land and evacuees land, if any, allotted to the same displaced person, is situated in more than one village; and (ii) such displaced person cultivated personally the land in at least one village in Kharif, 1971. 8. Vesting of ownership rights in land in prospective owner: (2) Notwithstanding anything contained in any law, for the time being in force, but subject to the provisions of sections 5 and 14, when an ex-owner / ex-intermediary does not or cannot resume any land, the tiller of Kharif, 1971 holding land under him shall be vested with ownership rights in such land after payment in full of such levy in such manner as is provided for in Schedule III. 10. Mortgages of land: (2) Where land is subject to mortgage with possession and the mortgage subsists on the date of commencement of this Act, the restitution of such land shall, notwithstanding anything to the contrary contained in any law, decree or order of a Court or a Revenue Officer or any contract, be effected in the manner and according to the procedure given below, namely:- (a) The mortgagor may apply for restitution of such land to the Collector, having jurisdiction in the area in which it is situate. The Collector shall, on receipt of such application give an opportunity to the mortgagor and the mortgagee of being heard and make such further enquiry as may be necessary; (b) (i) Where the Collector finds that the value of benefits enjoyed by the mortgagee equals or exceeds the cost of improvements, if any, effected by such mortgagee, in accordance with the terms of the mortgage deed, plus one and a half times the amount of the principal money, he shall, by order in writing, direct that the mortgage be redeemed and shall put the mortgagor in physical possession of the land; (ii) Where the Collector finds that the value of benefits enjoyed by the mortgagee, while in possession, is less than the cost of improvements, if any, effected by such mortgagee in accordance with the terms of the mortgage deed, plus one and a half times the amount of the principal money, he shall, by order in writing, direct that the mortgaged land be restored to the mortgagor and he be put in possession thereof subject, however, to the payment of amount, if any, due to the mortgagee: Provided that, in calculating the amount due, interest shall be charged only on the principal money, at a rate not higher than 5% per annum; Provided further that in no case shall the principal sum plus interest thereon exceed one and a half times the principal money; Provided also that where the mortgagee has been in possession of the mortgaged land for a period of ten years or the period during which the mortgage was to subsist according to the terms of the mortgage deed, whichever is less, it shall be conclusive proof of the fact that the mortgagee has received one and a half times the amount of principal money as well as the cost of improvements, if any. (a) Where the Collector finds that any sum is due to the mortgagee under clause (b), he may order the deposit of the amount found due from the mortgagor in such annual instalments, not exceeding ten, as the Collector may, with due regard to the paying capacity of the mortgagor, deem fit. (b) In determining the amount due, the Collector shall give credit to the mortgagor for the value of the benefits to be enjoyed by the mortgagee during the period covered by the instalments. (b) In determining the amount due, the Collector shall give credit to the mortgagor for the value of the benefits to be enjoyed by the mortgagee during the period covered by the instalments. (c) The Collector may order that, in lieu of the deposit of the amount found due, the mortgagee shall enjoy the profits of the mortgaged land for a period to be determined by the Collector with due regard to the amount found due and the profits accruing from the land: Provided that such period shall not exceed ten years or the period during which the mortgage was to subsist, according to the terms of the mortgage deed, whichever is less, reckoned from the date the mortgagee came into possession of the land under the mortgage. (d) The mortgagor shall be deemed to have complied with the order of deposit if the whole of the amount found due is deposited within the period ordered by instalments." 16. In terms of Sub-section (17) of Section 3 of the Act, tiller means tenant cultivating land, including the person who was tiller in Kharif 1971. The word `tenant has not been defined by the Act. Sub-section (18) of Section 3 of the Act provides that the words and expressions not defined in the Act shall have the meaning as assigned to them in other Acts, including the Tenancy Act. Subsection (5) of Section 2 of the Tenancy Act is as follows: "`tenant means a person who holds land, under the State, or under another person, and is, or but for a special contract in that behalf would be, liable to pay rent for that land, to the State or to that person; but it does not include- (a) an inferior land holder; or (b) a person to whom a holding has been transferred, or an estate or holding has been let on farm, for the recovery of an arrear of land revenue, or of a sum recoverable as such, or (c) a mortgagee of the rights of landholder." 17. The word `tiller, therefore, does not include a mortgagee of the rights of land holder. It was never, nor is, the contention of the appellants that the land in question was held by them as tenant and for that they were liable to pay rent for the land. The word `tiller, therefore, does not include a mortgagee of the rights of land holder. It was never, nor is, the contention of the appellants that the land in question was held by them as tenant and for that they were liable to pay rent for the land. Instead, it is the contention of the appellants that in part performance of an agreement to create mortgage of the land in question, the appellants came to hold or possess the land in question. There is no dispute that the agreement was fulfilled later on by grant of mortgage. The appellants were thus not tillers of the land within the meaning of the provisions of the Act. In such view of the matter, Sections 4 and 8 of the Act had no application in so far as the appellants are concerned. However, when the Assistant Settlement Officer on November 4, 1997 held that redemption of mortgage cannot be allowed, mortgagors right of redemption was denied, resulting in acknowledgement of tenancy of the appellants under the State. If on such basis a mutation had been made, the same should be deemed to have been automatically cancelled by reason of the order dated April 6, 1999 passed by the Financial Commissioner-cum-Commissioner, Agrarian Reforms, whereby the order of the Assistant Settlement Officer dated November 4, 1997 was set aside. 18. It was not, nor is, the contention of the appellants that the right to redeem stood barred by limitation as on August 1, 1996, when the claim for redemption arising by reason of a claim having been made in the suit for possession on the ground that the mortgage is valid, was directed to be disposed of in terms of Section 10 of the Act. Whether the mortgage was valid or invalid cannot be gone in by the Authorities under the Act. The same could only be gone in by the civil court. In the event the suit had been decided by the civil court holding that the mortgage is valid, in view of the provisions of the Act, redemption could not be ordered by the civil court, for, that had to be dealt with by the Authorities under the Act in terms of Section 10 thereof. When the suit was referred to the Authorities under the Act, the right of the respondents to contend that the mortgage is invalid was lost to them. When the suit was referred to the Authorities under the Act, the right of the respondents to contend that the mortgage is invalid was lost to them. By reason thereof, if any prejudice was caused, the same was caused only to the respondents and not to the appellants. The appellants having had accepted the order of the civil court to forward the suit to the Authorities under the Act and having permitted the order of the Tribunal, dated August 1, 1996, to reach finality, cannot contend that there was no claim of the respondents under Section 10 of the Act pending at the time when the above referred mutation was obtained by them. 19. Learned counsel for the appellants cited a judgment of the Honble Supreme Court in the case of Pune Municipal Corporation v. State of Maharashtra, reported in AIR 2007 SC 2414, and drew our attention to paragraphs 35 and 36 of the judgment. It was submitted that the mutation order cannot be ignored unless a challenge is thrown successfully thereto or a finding is recorded that it was illegal or not in consonance with law. In that case, the original order passed under Section 8 of Urban Land (Ceiling and Regulation) Act, 1976 was not challenged. The said order was passed by the competent authority and upon notice sent by registered post, which was received back undelivered whereupon it was treated that the service has been effected. In the circumstances, the Honble Supreme Court held that the said order could not be held void, still born or purported order. The Honble Supreme Court recorded a fact that in the appeal it was never contended that service was not effected and on that ground the order was bad. In such circumstances, it was held that it could not be said that the said order was an illegal or a void order. 20. In the instant case, the mutation in question came at a stage after the proceeding under Section 10 of the Act was availed of, as would be evidenced from the order of the Tribunal dated August 1, 1996, and may be upon conclusion of the said proceeding by the order of the Assistant Settlement Officer dated November 4, 1997, which proceeding stood revived by the order of the Financial Commissioner-cum-Commissioner, Agrarian Reforms dated April 6, 1999. In the circumstances, the said mutation need not be challenged at all. The same would automatically perish in the event Section 10 proceedings are concluded in favour of the respondents. 21. In the circumstances, there appears to be no scope of interference with the judgment and order under appeal. However, if the said mutation was made after November 4, 1997, but before April 6, 1999, it would not be appropriate to initiate disciplinary action against the officers who effected such mutation and, accordingly, that part of the judgment and order shall be implemented only after a preliminary enquiry. Disposed of accordingly.