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2012 DIGILAW 210 (CHH)

Amar Singh v. Jawaharlal

2012-08-17

A.M.SAPRE

body2012
JUDGMENT 1. This is a second appeal filed by the plaintiffs under Section 100 of C.P. Code against the judgment/decree dated 26.04.95 passed by Additional District Judge, Khairagarh Camp Court Kawardha in Civil Appeal No. 116-A/87 which in turn arise out of judgment /decree dated 11.10.82 passed by Civil Judge Class-2, Kawardha in Civil Suit No. 35A/ 79. 2. By impugned judgment and decree, the First Appellate Court confirmed the judgment/ decree of the trial Court and in consequence dismissed the suit filed by the plaintiffs (appellants). 3. So the short question arises for consideration in this appeal is whether Lower Appellate Court was justified in dismissing the appeal and in consequence was justified in dismissing the plaintiffs' suit? 4. The appeal was admitted for final hearing on following substantial question of law :- "Has the Lower Appellate Court erred in holding that the transaction in question was merely a mortgage and as such suit for redemption of the said land ought to have been filed?" 5. I do not consider it necessary to narrate the whole controversy relating to facts, which in my opinion does not appear necessary in view of the narrow question involved. 6. The suit out of which this appeal arises was filed by the appellants (plaintiffs) for a declaration that document dated 29.7.74 executed by plaintiffs in favour of defendants (respondents herein) in relation to his suit land (agricultural land) was essentially in the nature of a security taken for securing the loan of Rs. 2000/-, and hence the same be declared bad in law and void because the plaintiffs have since repaid the entire loan amount to the defendants (respondents) between 1975-1978. He therefore in fact sought a declaration that the so-called alleged document-whether called sale deed or security deed has now become bad in law and inoperative on plaintiffs discharging the loan liability to the defendants. 7. He therefore in fact sought a declaration that the so-called alleged document-whether called sale deed or security deed has now become bad in law and inoperative on plaintiffs discharging the loan liability to the defendants. 7. The defendants denied the plaintiffs' case and interalia contended that firstly the transaction in question was that of mortgage and not a sale out and out or as contended by the plaintiffs and secondly the plaintiffs did not yet repay the loan amount which they had taken from the defendants (respondents) much less with interest and hence, the alleged document can not be declared null and void and lastly suit for mere declaration that the deed in question is bad in law is not maintainable and the remedy of the plaintiffs in such case lies in filing a suit for enforcement of mortgage by claiming its redemption on paying the loan amount to the defendants (respondents). In other words, the contention of the defendants was that the document in question being in the mature of mortgage, the remedy of the plaintiffs was in filing the suit for redemption of mortgage property by repaying the loan amount in terms of mortgage. 8. Parties adduced the evidence. The trial Court dismissed the suit. It was held that firstly plaintiffs failed to prove that they repaid the loan amount to the defendants and secondly it was held that it was a case of mortgage between the parties in relation to suit lands and since the plaintiffs failed to file the suit for redemption on the strength of mortgage and hence it was bad in law. 9. The plaintiffs appealed. The First Appellate Court dismissed the appeal and affirmed the findings of the trial Court. It is against this concurrent finding, the plaintiffs have felt aggrieved and filed second appeal. 10. Having heard the learned counsel for the parties and on perusal of the record of the case, I am inclined to dismiss the appeal but while doing so clarify the legal position of the case which arise out of the findings recorded by the two Courts. 11. In my opinion once the two Courts recorded the finding in defendants' favour that the transaction in question was that of mortgage and not out and out sale and that it was executed to secure the loan transaction between the parties for Rs. 11. In my opinion once the two Courts recorded the finding in defendants' favour that the transaction in question was that of mortgage and not out and out sale and that it was executed to secure the loan transaction between the parties for Rs. 2000/- then in normal course such finding being concurrent in nature, does not call for any interference. In fact such finding is binding on the Second Appellate Court. It is much more so when it is also noticed that it is not against the pleading or against any evidence or against any provision of law or is such that no judicial man of average capacity can ever record. In other words, when it is noticed that it is a finding based on evidence adduced by the parties and was capable to record on such evidence then it is binding on Second Appellate Court. 12. Assuming that it constitutes a question of law for being examined in second appeal, because it involves interpretation of document (sale deed dated 29.7.74) and another agreement executed on the same day then also it seems to be a case of mortgage between the parties to secure the loan amount taken by the plaintiff from the defendant in relation to suit land. 13. Since two Courts have held against the appellants (plaintiffs) on the issue of repayment of loan and hence such finding would be binding on this Court while hearing the second appeal. Even apart from this, it has not been pointed out to me that impugned finding was returned in ignorance of some evidence or was wrongly appreciated. In this view of the matter; I can not reverse the finding in favour of plaintiffs on such facts, and hold that they have repaid the loan amount to the defendants. 14. The legal consequence that flows from the aforesaid finding is that mortgage between the parties in relation to mortgage property continues to remain in force and the status of plaintiffs (appellants) would continue to remain that of the "mortgagor" and that of the defendants (respondents) as "mortgagee". Another consequence that flows from this litigation is that plaintiffs (appellants) continues to owe their liability towards the defendants (respondents) in relation to loan amount to the defendants (respondents) which still remains outstanding. 15. It is a settled principle of law that once a mortgage always a mortgage. Another consequence that flows from this litigation is that plaintiffs (appellants) continues to owe their liability towards the defendants (respondents) in relation to loan amount to the defendants (respondents) which still remains outstanding. 15. It is a settled principle of law that once a mortgage always a mortgage. Such is now the case here. Once the document is held to be a mortgage by the Court in this litigation then parties are bound by such interpretation in all subsequent litigation for determination of their rights arising out such transaction as mortgagor, mortgagee in relation to mortgaged property. 16. The appellants (plaintiffs) in these circumstances would still be therefore entitled to enforce the mortgage which is subsisting on repaying the whole loan amount in terms of the mortgage deed to the defendants (respondents) and redeem the mortgaged property (suit land) notwithstanding the dismissal of their suit/appeal and if despite paying the loan amount, the defendants (respondents) still decline to release the mortgaged property in plaintiffs' favour (mortgagor's favour) then the appellants (plaintiffs) would be at liberty to file a fresh suit for redemption of the mortgage property (suit land) against the respondents (defendants) in competent Court of law and while prosecuting such suit, the judgment/decree of this appeal would not come in his way. 17. It is for the reason that in such suit, the plaintiffs would be required to prove that they are enforcing the mortgage against the defendants after satisfying the loan amount subsequent to decision of this litigation. It is only when the plaintiffs would be able to prove that they have repaid the entire loan amount to the defendants in terms of mortgage and that too subsequent to this litigation, then only the Court will be able to examine the next issue as to whether a case for redemption of mortgage property is held made out in plaintiffs' favour or not and whether mortgaged property should be released in their favour by passing a decree for redemption. 18. 18. In other words, the plaintiffs will be bound by the finding of repayment recorded against them in this litigation so also would be bound with the finding in relation to the nature of document namely mortgage as held by this Court also by affirming the finding of the two Courts and hence whenever they file a second suit against the defendants on the strength of the mortgage deed in question seeking redemption of their mortgaged property then they will have to prove afresh that they have now repaid the entire loan money after conclusion of this litigation in terms of the mortgage deed to the defendants and hence have become entitled to claim redemption of the mortgaged property from the clutches of defendants (respondents) in their favour. 19. It is with these clarification, I find no merit in the second appeal which fails and is dismissed. No order as to costs. Appeal Dismissed.