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2010 DIGILAW 2165 (PNJ)

Shrimati Ratni v. Balbir Singh

2010-07-29

K.C.PURI

body2010
JUDGMENT K.C. Puri, J. (Oral) - This is regular second appeal directed by the plaintiffs against the judgment dated 11.09.1987 passed by Shiri S.N. Chadha, Additional District Judge, Gurgaon vide which the appeal preferred by the plaintiffs against the judgment dated 21.11.1985 passed by Shri Subhash Goyal, Sub Judge IInd Class, Gurgaon, was dismissed. 2. Briefly stated, Ratni and Sharbati filed a suit for declaration with consequential relief of possession with the allegations that Jiya Ram s/o Udwa and Kundan s/o Mohru were owners in possession of the agricultural land measuring 2 bighas 12 biswas in equal shares situated in village Gurgaon. Kundan mortgaged with possession his half share equal to 1 bigha 6 biswas vide registered mortgage deed dated 29.08.1921 to Dharam Chand s/o Nathan with all rights. Mutation of the said mortgage was also sanctioned vide mutation No. 850 dated 06.05.1922. Kundan Lal died and after his death, the suit land was got mutated in favour of the defendants in equal shares. The mortgagee Dharam Chand also died and the land was mutated in the name of Fateh Chand who also died subsequently, leaving behind his widow Dhapa and two daughters Ratni and Sharbati. Fateh Chand died before the Indian Succession Act came into force and after his death, Dhapa became the absolute owner of the land. Dhapa also died and the land was mutated in favour of the plaintiffs. The suit land was allotted in lieu of the land mortgaged. The period of redemption of mortgage has expired and the land has not been redeemed. So, the defendants/mortgagors have lost their right of redemption and the plaintiffs have become the absolute owners of the property to the extent of one half share. It is further alleged that the land in dispute is in possession of the plaintiffs. It is further alleged that defendants are in cultivating possession of the suit land as tenants under the plaintiffs and are paying batai-tehai regularly to the plaintiffs. 3. Notice of the suit was given to the defendants. Defendants appeared and filed written statement taking preliminary objections that the plaintiffs are not owner in possession of the suit property but the defendants are owner in possession of the suit property. 4. On merits, it is denied that the suit land was mortgaged by Kundan Lal in favour of Dharam Chand and the alleged mortgage was null and void. Defendants appeared and filed written statement taking preliminary objections that the plaintiffs are not owner in possession of the suit property but the defendants are owner in possession of the suit property. 4. On merits, it is denied that the suit land was mortgaged by Kundan Lal in favour of Dharam Chand and the alleged mortgage was null and void. The defendants have also denied that they are in possession of the suit property as tenant under the plaintiffs on payment of batai. It is further alleged that the mortgagors have not taken possession within 12 years of mortgage and as such, their right to have possession has extinguished by prescription. 5. From the pleadings of the parties, following issues were framed by the learned trial Court :- 1) Whether the plaintiffs are in possession of the suit land ? If so, to what effect ? OPP 2) Whether Kundan s/o Mehru mortgaged with possession of 1/2 share of the land in suit on 29th August, 1921 ? OPP 3) Whether the plaintiffs are heirs of Dharam Chand? OPP 4) Whether the plaintiffs have become owners of suit land on the expiry of period of limitation allowed for redemption of mortgage ? OPP 5) Whether the defendants have become owners of the suit land by adverse possession ? OPD 6) Whether the plaintiffs have no locus standi to file the present suit ? OPD 7) Whether the suit is not within time ? OPD 8) Relief. 6. Plaintiff No. 1 appeared as PW-1 and examined Pehlad as PW-2, Manohar as PW-3 and Ganpat Singh, Patwari as PW-4 and tendered certain documents. 7. In rebuttal, defendant No. 1 appeared as DW-1 and examined Uday Singh, Record Keeper as DW-2, Dhani Ram as DW-3 and Attar Chand as DW-4. 8. Learned trial Court has taken Issues No. 1 and 2 together. Issue No. 1 was decided against the plaintiffs, however, Issue No. 2 regarding mortgage was decided in favour of the plaintiffs. Issue No. 3 was decided in favour of the plaintiffs. Issues No. 4, 5 and 7 were decided against the plaintiffs. Regarding Issue No. 6, it was observed that no evidence has been led by the defendants and the same was not pressed during the course of arguments and the suit of the plaintiffs was dismissed. 9. Issue No. 3 was decided in favour of the plaintiffs. Issues No. 4, 5 and 7 were decided against the plaintiffs. Regarding Issue No. 6, it was observed that no evidence has been led by the defendants and the same was not pressed during the course of arguments and the suit of the plaintiffs was dismissed. 9. Feeling dissatisfied with the judgment dated 21.11.1985 passed by the Sub Judge IInd Class, Gurgaon, the plaintiffs preferred first appeal which was decided by learned Additional District Judge, Gurgaon. After hearing both the sides, the appeal was dismissed vide judgment dated 11.09.1987. 10. Still feeling dissatisfied with the judgment dated, 11.09.1987 and the judgment dated 21.11.1985, the plaintiffs have preferred the present regular second appeal. 11. In the grounds of appeal the substantial question was not famed, but on 26.07.2010, learned counsel for the appellants placed on record the following substantial questions of law :- 1) Whether there is no limitation redeeming usufructuary mortgage ? 2) Whether in view of Section 27 of the Limitation Act, on the expiry of period of limitation, the mortgagor would loss his right to redeem and mortgagee would become entitle to continue in possession as a full owner ? 3) Whether as per provision of Article 63 (b) of the Limitation Act, the suit for declaration filed by the appellants becomes barred by limitation ? 4) Whether a tenant can claim adverse possession hostile to the person in whose favour land has been mortgaged with possession ? 5) Whether an individual against whom declaration was claimed by the appellants be declared owner of the land in question having been in possession for the last more than 12 years ? 6) Whether the mutation entered in the revenue record on the basis of mortgage deed and subsequent creation of lease in favour of tenant, can be good piece of evidence ? 7) Whether a document is to be taken into consideration as a good piece of evidence if the same is called from the proper custody of the revenue authorities ? 8) Whether Exhibit P-5 mortgage deed dated 29.08.2001 proved on record after it was called from the proper custody, can be discarded that old entries in the revenue record as per the provision of Evidence Act having the presumption of truth ? 8) Whether Exhibit P-5 mortgage deed dated 29.08.2001 proved on record after it was called from the proper custody, can be discarded that old entries in the revenue record as per the provision of Evidence Act having the presumption of truth ? 9) Whether mortgagor has a right to redeem or recover possession of the immovable property after 30 years of the mortgage deed ? 12. Learned counsel for the appellants has submitted that findings of both the Courts below that the defendants are not in possession of the suit property as tenant under the plaintiffs, is the result of misreading and misinterpreting the evidence. It is further contended that once a tenant always a tenant. In the Jamabandi up to the year 1946-47, the mortgagors have been shown in possession as tenants. The subsequent record cannot be changed showing the mortgagors or their predecessors interest in possession. It is further contended that the plea of Section 63 (b) of the Limitation Act would not be available to the defendants as they are simply a tenant. Both the Courts below have wrongly observed that the possession of the land was never handed over to the mortgagees. The possession was handed over to the mortgagees, who in turn, returned the possession to the mortgagors on payment of rent. It is further submitted that there is a finding of fact recorded by both the Courts below that the property was mortgaged on 29.08.1921 and the mutation of the said mortgage has already been effected. The findings of the First Appellate Court to the effect that since the mortgage deed dated 29.08.1921 has not been produced, as such, there could be chances of redemption of land, is wrong on the face of it. The land was never redeemed. 13. Learned counsel for the appellants has further submitted that learned counsel for the respondents may argue that in view of authority "Ram Kishan and others v. Sheo Ram and others" 2008(1) PLR 1, right to redeem the land has extinguished. However, it is submitted that decision of that Full Bench has been referred to Larger Bench of Supreme Court. 13. Learned counsel for the appellants has further submitted that learned counsel for the respondents may argue that in view of authority "Ram Kishan and others v. Sheo Ram and others" 2008(1) PLR 1, right to redeem the land has extinguished. However, it is submitted that decision of that Full Bench has been referred to Larger Bench of Supreme Court. It is contended that judgment "Prabhakaran and others v. M.Azhagiri Pillai" (2006) 4 Supreme Court Cases 484 is in conflict with decision of case reported as "Jiya Singh Dnyanu Mhoprekar v. Krishna Babaii Patil and another" (1985) 4 Supreme Court Cases 162 and also various decisions of the Supreme Court as well as Full Bench of this Court reported in Ram Kishans case (supra). So the right to redeem of land has lapsed due to long passage of 60 years from the date of mortgage. 14. Learned counsel for the appellants has also relied upon Section 27 of Limitation Act and has stated that in view of this Section, the determination of the period limited to any person for instituting a suit for possession of any property, his right to property shall be extinguished. 15. In reply to the above mentioned submissions, learned counsel for the respondents has submitted that although the Full Bench authority in Ram Kishans case (supra) has been referred to the Larger Bench of Supreme Court, however, the present appeal can be decided without deciding the said controversy. There is finding of fact recorded by both the Courts below that the mortgagor remained in possession of the suit property even after execution of the mortgage deed. In view of Article 63 (b), the limitation for having possession on the basis of mortgage has been extinguished. There is concurrent finding of both the Courts below that the stand taken by the plaintiffs regarding leasing out the land after mortgage, is not borne out from the record. Even none of the witnesses of the plaintiffs, has stated that the property was leased out by the mortgagee to the mortgagor. Section 27 of the Act shall rather help the case of respondents as right to possession has extinguished after a period of 12 years of the mortgage. 16. I have heard learned counsel for the parties and have gone through the records of the case. 17. Section 27 of the Act shall rather help the case of respondents as right to possession has extinguished after a period of 12 years of the mortgage. 16. I have heard learned counsel for the parties and have gone through the records of the case. 17. far as the question of law No. 1 and 9 are concerned, the said controversy was not raised before both the Courts below and as the Full Bench authority report in Ram Kishans case (supra) has been referred to the Larger Bench, so I am of the considered opinion that the said law points need not to be decided for deciding the present appeal, as the out come of appeal is not dependent upon the same. So, these law points stand answered accordingly. 18. The main controversy raised by the plaintiff-appellants is that they are in possession of the suit property. The suit land was mortgaged by the predecessors of defendants in favour of predecessors of plaintiffs on 21.08.1921. The case of the plaintiffs in the amended plaint is that the suit land was given on rent i.e 1/3rd batai/chakota by the mortgagee to the mortgagor. However, there is a finding of fact recorded by both the Courts below that the plaintiffs have failed to prove that the suit land was given by the mortgagee to the mortgagor on payment of 1/3rd batai. It is further held by, both the. Courts below that mortgagee remained in possession of the suit property and the right to file suit, stands extinguished in view of Article 63 (b) of the Limitation Act. Article 63 (b) lays down that the suit for possession of immovable property, mortgage period is 12 years when the mortgagee becomes entitled to possession. The appellants became entitled to possession on the date of mortgage i.e 29.08.1921. The present suit was filed on 24..09.1981 1.e after a period of more than 60 years of the mortgage. The appellants have relied upon Section 27 of the limitation Act to press the point that right to redemption of the defendants has extinguished. However, as discussed above, since the said controversy was not raised before both the Courts below and as such, the same cannot be agitated for the first time in the regular second appeal. However, Section 27 is helpful to advance the case of respondents. Section 27 envisages as under :- "27. However, as discussed above, since the said controversy was not raised before both the Courts below and as such, the same cannot be agitated for the first time in the regular second appeal. However, Section 27 is helpful to advance the case of respondents. Section 27 envisages as under :- "27. Extinguishment of right to property - At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished." 19. Article 63 (b) deals with the limitation for filing the suit for possession on the basis of mortgage. The period is 12 years when the mortgagee become entitled to possession. The plaintiffs became entitled for possession from the date of mortgage and the suit has not been filed within 12 years. So, right to have possession of the immovable property stands extinguished in view of Section 27 of the Limitation Act. That being a finding of fact cannot be interfered in the regular second appeal. 20. No doubt, once a tenant is always a tenant and the tenant cannot claim adverse possession but the first point which is required to be proved by the plaintiffs is that the defendants are tenants. Learned counsel for the appellants is fair enough to concede that none of the witnesses of plaintiffs has stated that the land was leased out to the mortgagor by the mortgagee. The revenue record has been fully discussed by both the Courts w and that cannot be interfered in view of concurrent finding that the plaintiffs have failed to prove that the land was given by the mortgagor to the mortgagee as tenant. In the revenue record om the year 1946-47 onwards there is no entry as mortgagor in possession of the suit property as tenant. Both the Courts below have fully appreciated the fact that in the revenue record from 1946-47 onwards, there is no entry of tenancy of mortgagor. 21. No doubt, the First Appellate Court has observed that original mortgage deed Exhibit P-5 has not been produced but however, there is a concurrent finding of both the Courts below the land was mortgaged in the year 1921 and as such, that observation does not affect the decision of the present appeal. 22. 21. No doubt, the First Appellate Court has observed that original mortgage deed Exhibit P-5 has not been produced but however, there is a concurrent finding of both the Courts below the land was mortgaged in the year 1921 and as such, that observation does not affect the decision of the present appeal. 22. In view of the above discussions, all the substantial questions for determination in the present appeal, stands determined accordingly, as discussed above. Consequently, the appeal is without any merit and the same stands dismissed. However, in view of the peculiar circumstances of the case, the parties are left to bear their own costs. Appeal dismissed.