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2012 DIGILAW 70 (PNJ)

Amar Singh v. Baljit Singh

2012-01-12

G.S.SANDHAWALIA

body2012
JUDGMENT Mr. G.S. Sandhawalia, J.: - The present appeal has been filed by the defendant-appellants who are dissatisfied with the judgment and decree dated 23.04.1986 wherein the lower appellate Court at Rohtak had allowed the appeal of the unsuccessful plaintiff-respondents and passed a decree of possession in their favour. 2. The necessary facts which emanate from the facts are that the plaintiff-respondents filed a suit for possession of 48 kanals as per Jamabandi of the year 1977-78 of Village Bhalot on the ground that one Kanwar Shamsher Singh, retired IG of Police was the owner of the land and residing outside Village Bhalot and had appointed Om Parkash, son of Samundar Singh as his Power of Attorney to deal with the property. It was alleged that on the strength of the said Power of Attorney, a registered mortgage deed dated 14.11.1980 was executed for a sum of Rs.12,000/- and possession of the land had been taken as mortgagee’s and the plaintiff-respondents were in possession of the suit land. The defendant-appellants were interfering in the possession of the plaintiff-respondents/mortgagees who accordingly filed a suit for permanent injunction in the Court of Sr.Sub-Judge, Rohtak who had granted ad-interim injunction restraining the defendant-appellants to interfere in the property of the suit land and status quo order was passed on 01.10.1981. However, the defendant-appellants took forceable possession of the suit land on 16.10.1981 when the plaintiff-respondents were not in the village and accordingly, the suit for permanent injunction was withdrawn. The defendant-appellants were asked many times to hand over the possession of the suit land but they failed to do the needful and had finally refused to hand-over the possession of the suit land which had led to the filing of the suit in question. The said suit was resisted by filing written statement on the ground that the plaintiff-respondents have no locus standi to file the suit, it was barred by the principles of res judicata, not maintainable under Order 23 Rule 1 C.P.C. and bad for misjoinder and non-joinder of necessary and proper parties. It is further contended that Kanwar Shamsher Singh was still the owner of the agricultural land and he had never appointed Om Parkash as his Power of Attorney. It is further contended that Kanwar Shamsher Singh was still the owner of the agricultural land and he had never appointed Om Parkash as his Power of Attorney. It was alleged that Om Parkash, the Power of Attorney was the real brother of the plaintiff-respondents and he, under the influence of his father, Samundar Singh was doing all the illegal acts. The plaintiff-respondents had never been in possession of the suit property and no mortgage deed was ever executed and registered with regard to the suit land and Om Parkash had no power to mortgage the suit land and the defendant-appellants were owners of the agricultural property for the last 15 years. Reference was also made to a civil suit filed by Samundar Singh, father of the plaintiff-respondents in which injunction had been granted to Samundar Singh. However, the same had been set aside by the Addl.District Judge, Rohtak in his decision dated 01.05.1980. The earlier suit filed by the plaintiff-respondents for permanent injunction and the status quo orders passed in the said litigation were admitted. 3. Replication was filed by the plaintiff-respondents in which they denied that they were not competent to bring the suit and also the fact that the suit was barred by principles of res judicata since there was no decision on merits between the parties. Accordingly, the plea in the suit was reiterated and the written statement was denied. On the basis of the said pleadings, the trial Court framed the following issues: “1. Whether the plaintiffs are mortgagees of the land in dispute? OPP 2. Whether the plaintiffs have no locus standi to file the suit? OPD 3. Whether the suit is barred by the principle of resjudicata? OPD 4. Whether the suit is not maintainable in view of the Order 23 Rule 1 of the C.P.C.? OPD 5. Whether the suit is bad for misjoinder and nonjoinder of parties? OPD 6. Relief.” 4. The plaintiff-respondents examined Baljit Singh himself as PW1, Om Parkash, the Power of Attorney of Kanwar Shamsher Singh as PW2 and Balwant Singh who was the Local Commissioner and had recorded the statement of Kanwar Shamsher Singh on commission as PW3. The defendant-appellants examined as many as five witnesses to stress-forth the fact that they were in possession of the suit property. 5. The defendant-appellants examined as many as five witnesses to stress-forth the fact that they were in possession of the suit property. 5. The trial Court, on issue No.1, came to the conclusion that Kanwar Shamsher Singh had executed Power of Attorney dated 15.10.1976(Exhibit P.W2/A) and on the strength of the said Power of Attorney, Om Parkash had executed the registered mortgage deed dated 14.11.1980(Exhibit P.W1/A). Reference was also made to the statement of the Local Commissioner, PW3, who had examined Kanwar Shamsher Singh. It was also noticed that defendant-appellant Amar Singh, in his cross-examination, had admitted that the mortgage deed was executed in favour of the plaintiff-respondents. The recital in the Power of Attorney (Exhibit PW2/A was also taken into consideration which gave Om Parkash the authority to execute sale/mortgage deed etc. and accordingly, issue No.1 was decided in favour of the plaintiff-respondents and it was held that they were mortgagees of the land in dispute. On issue No.2, regarding the locus standi of the plaintiff-respondents, it was held that there was no evidence to prove that possession of the land had ever been delivered to the plaintiff-respondents and even the Power of Attorney, Om Parkash was silent on this aspect and neither the statement of Kanwar Shamsher Singh threw any light on the said fact. Accordingly, it was held that the defendant-appellants were in possession of the suit land and the statement of DW2 to DW5 were also taken into account that the defendant-appellants were cultivating the suit land for more than 15-16 years continuously. Reference was also made to the judgments and decree dated 01.05.1980 passed by the learned Addl.District Judge, Rohtak in which the Addl.District Judge had taken into consideration the irrigation records and dismissed the suit filed by Samundar Singh, father of the plaintiff-respondents, while allowing the appeal of Amar Singh and Jai Singh, the present defendant-appellants. Accordingly, it was held that possession of the suit land was not delivered at the time of the mortgage deed dated 14.11.1980. The statement of DW1 Amar Singh was also noticed that he had purchased 6 acres of agricultural land from his brother, Samundar Singh by paying him Rs.20,500/- and that he had been in possession of the suit land but Samundar Singh had refused to execute the sale deed due to which, they were litigating amongst each other. The statement of DW1 Amar Singh was also noticed that he had purchased 6 acres of agricultural land from his brother, Samundar Singh by paying him Rs.20,500/- and that he had been in possession of the suit land but Samundar Singh had refused to execute the sale deed due to which, they were litigating amongst each other. This statement was not taken into consideration as it was without any basis and there was no pleadings to the same effect. Accordingly, it was held that the defendant No.1 had been in possession of the suit land for the last 15-16 years and his possession of the suit land was never delivered to the plaintiff-respondents on the basis of the mortgage deed, and therefore, the plaintiff-respondents could seek their remedy only against Kanwar Shamsher Singh, the mortgager of the suit land and the said owner of the land could claim possession from the defendant-appellants who are third persons and had no concern with the mortgage deed. Accordingly, it was held that the plaintiff-respondents have no locus standi to file the present suit, and therefore, it was decided against the plaintiff-respondents and in favour of the defendant-appellants. Issue No.3, 4 & 5 were not pressed during the course of arguments pertaining to res judicata, Order 23 Rule 1 C.P.C. and non-joinder & mis-joinder of parties and the suit was accordingly dismissed. 6. In an appeal filed by the plaintiff-respondents, the Addl.District Judge, Rohtak took into consideration the statements made by Amar Singh, defendant that his brother Samundar Singh had agreed to sell the suit land and put him in possession on receipt of Rs.20,500/-. However, it was held that the said plea was rightly discredited as it had no basis since this fact was not pleaded. It was also noticed that in earlier litigation decided on 01.05.1980 by the Addl.District Judge, Rohtak, no such plea was put up and in fact, the ownership of Kanwar Shamsher Singh was pleaded in the present case in appeal and the written statement, and therefore, once the defendant appellants have admitted that the suit land was owned by Kanwar Shamsher Singh, the alleged agreement of sale between Samundar Singh and Amar Singh was of no consideration. The lower appellate Court noticed that they were recitals of the registered mortgage deed that the suit land was registered in favour of the plaintiff-respondents and noticed that the same recitals can be valid and legal and even if the mortgagees had not been put in possession of the suit property and only symbolic possession was given to them. The lower appellate Court held that the right to get the possession of the property could not be curtailed and the plaintiff-respondents by virtue of the status as mortgagees, were entitled to get possession from the defendant-appellants who had no such claim regarding ownership over the land and neither they had pleaded or proved ownership by way of adverse possession or that the plaintiff-respondents were disentitled to seek the possession under the law of limitation. It was also noticed that neither the defendants had pleaded that their possession was adverse to Kanwar Shamsher Singh or that they had possession under him in any capacity which could prevent the plaintiff-respondents to take possession of the suit land. 7. The lower appellate Court accordingly relying upon Gauri Singh & another Vs. Bachu Singh & others, AIR 1933 Allahabad 97 went on to hold that even if there is no provision in the mortgage deed, the rights of the mortgagee with possession would be to get the possession. Reliance was also placed upon Kanchan Singh & others Vs. Masummat Jafri Begam, Indian Cases 190 wherein it had been held that the mortgagee was entitled to get possession even from a third person who are not party to the mortgage deed. Accordingly, the findings on issue No.2 was reversed and the lower appellate Court came to the conclusion that the plaintiff-respondents had locus standi to file the suit and were entitled for possession of the suit land from the defendant-appellants. Accordingly, the appeal was accepted and a decree for possession was passed against which the defendant-appellants are in regular second appeal. 8. The counsel for the defendant-appellants contended that following substantial questions of law arise for consideration before this Court: “1.Whether the findings recorded by the Addl.District Judge were passed on mis-reading of evidence and suffered from material irregularity since the defendants had an oral agreement with his brother and had paid him a sum of Rs.20,500/- and was entitled to retain possession? 2.Whether the plaintiffs, being mortgagees, had locus standi to file the suit for possession against a third party in view of Section 68 (1)(d) of the Transfer of Property Act (4 of 1882) and whether the right was limited only to sue for mortgage money from Kanwar Shamsher Singh?” Mr.Suvneet Sharma, learned counsel for the appellants thus contended that in view of the provisions of Section 68(1)(d), the mortgagee only had a right to sue for the mortgage money since being entitled to possession of the mortgage property, he had not been delivered possession by the mortgagee and accordingly the suit for possession against him, being 3rd party, was not maintainable and questioned the legality of the order of the lower appellate Court. The counsel for the appellants was at pains to show that there was earlier litigation between the parties who were closely related since Baljit Singh and Joginder Singh, plaintiffs are sons of Samundar Singh and Samundar Singh is the brother of defendant No.1-Amar Singh. Accordingly, it was contended that defendant No.1 had given a sum of Rs.20,500/- to his brother Samundar Singh who had purchased the land from Kanwar Shamsher Singh to the extent of 16 acres of land and had entered into an oral agreement for 6 acres of land (the present land measuring 48 kanals) and they were in continuous possesssion since the last 15-16 years which was proved from the fact that DW2 to DW5 had also categorically stated so and in the earlier litigation dated 01.05.1980, the injunction suit filed by Samundar Singh, father of plaintiffs had been dismissed in appeal and the lower appellate Court had noticed that there was irrigation record in favour of defendant No.1 relating to the year 1971-72 to 1976-77. Stress was also laid on the fact that there was earlier litigation between the parties and once the plaintiff-respondents had admittedly filed a suit for permanent injunction and the same was got dismissed as withdrawn and that amounted to res judicata as the issue had been decided between the parties and accordingly the present suit was not maintainable. Stress was also laid on the fact that there was earlier litigation between the parties and once the plaintiff-respondents had admittedly filed a suit for permanent injunction and the same was got dismissed as withdrawn and that amounted to res judicata as the issue had been decided between the parties and accordingly the present suit was not maintainable. However, this fact need not detain the Court for very long since admittedly, the earlier suits were for permanent injunction and even though the plaints are not placed on record to find out as to whether the relief was the same, it is patent from the orders of the Addl.District Judge, Rohtak dated 01.05.1980(Exhibit D5). Further, it has to be taken into consideration that a registered mortgage deed came into existence dated 14.11.1980 which is subsequent, and therefore, a fresh cause of action arose to the plaintiff-respondents to file the suit for possession. Therefore, the earlier litigation cannot be contended to be a bar to the second suit. Even otherwise, the said issues have not been pressed by the defendant-appellants before the trial Court and were decided against them, and therefore, the counsel for the defendant-appellants cannot be permitted to raise the said issue, in second appeal. Another factor which goes against the defendant-appellants is that the evidence is contrary to the pleadings, and therefore, cannot be taken into consideration. As noticed by the Courts below, in the written statement, the defendant-appellants have admitted that Kanwar Shamsher Singh is still the owner of the agricultural land and they denied the execution of the Power of Attorney in favour of Om Parkash. However, the execution of Power of Attorney (Exhibit PW2/A) has been clearly proved since the application for appointment of a Local Commissioner to record the statement of Kanwar Shamsher Singh was allowed and Balwan Singh, an Advocate of Rohtak was appointed for the purpose of recording the statement of Kanwar Shamsher Singh who was a retired Inspector General of Police at Chandigarh. The said statement was recorded in the presence of the counsel for the defendants and the same has been proved by the Local Commissioner. The statement recorded on 09.04.1983 reads as under: “Statement of Kr.ShamsherSingh Rtd. IG Police (Pb.) at 10.30 AM at the residence H.N.167, Sector 11A Chandigarh I gave a general power of attorney to Sh. The said statement was recorded in the presence of the counsel for the defendants and the same has been proved by the Local Commissioner. The statement recorded on 09.04.1983 reads as under: “Statement of Kr.ShamsherSingh Rtd. IG Police (Pb.) at 10.30 AM at the residence H.N.167, Sector 11A Chandigarh I gave a general power of attorney to Sh. Om Parkash s/o Samunder Singh for transferring my land in Bhalout to the name of Ch.Samundar Singh or his nominee. The power of attorney was duly registered at Chandigarh. xxxx by Sh.Kuldeep Singh, Adv. I sold about 16 acreas of land i.e., my entire agricultural land at vill.Bhalout to Ch.Samunder Singh, the father of the plaintiffs and Sh.Om Parkash. I sold my entire agri.land of vill Bhalout about 20/25 yrs back. The sale consideration was given to me by Samunder Singh, the father of the plaintiff. It is correct to suggest that I gave the specific power of attorney to get my agricultural land transferred by regi.sale deed either to Samunder Singh or his nominee. The heading General Power of attorney is typing error. I have sold my entire agri.land to Samunder Singh and this specific power of attorney was executed only to transfer by regi.sale deed to Sh.Samunder Singh. I have no knowledge whether in the revenue record this land has been transferred in the name of Samunder Singh . In fact I have sold entire agri.land of vill.Bhalout to Samunder Singh and given specific Power of attorney to Om Parkash to execute sale deed and mutation etc. I have no knowledge about whether Samunder Singh has received any money for this land from Amar Singh for sale. I sold the land only to Samunder Singh and not to any body else. Sd/- Kr.Shamsher Singh 9/4/83" 9. From the perusal of the above statement, it would be clear that Kanwar Shamsher Singh had sold 16 acres of land which was his entire share to Ch.Samunder Singh, the father of the plaintiff-respondents about 20/25 years back from the date when his statement was recorded. In pursuance of the said sale, he admitted that he had given specific power of attorney registered at Chandigarh to Samunder Singh or to his nominee who was Om Parkash and in cross-examination by the counsel for the defendant-appellants, he specifically mentioned that he sold the land to Samunder Singh and not to anybody else. In pursuance of the said sale, he admitted that he had given specific power of attorney registered at Chandigarh to Samunder Singh or to his nominee who was Om Parkash and in cross-examination by the counsel for the defendant-appellants, he specifically mentioned that he sold the land to Samunder Singh and not to anybody else. Though, from the above facts, it would be clear that Samunder Singh had purchased 16 acres of land owned by Kanwar Shamsher Singh out of which possession of 6 acres of land had been given to Amar Singh father of the defendant-appellants but they had fallen out with each other and started litigating. However, due to the absence in the pleadings, no relief can be granted to the defendant-appellants, even though they had filed a Civil Miscellaneous application No.2134-C of 1986 of the amendment of the written statement wherein they sought to amend the written statement by saying that Samunder Singh had sold the land to them. It is also pertinent to mention here that this application was never pressed at the time of arguments by the counsel for the defendant-appellants, even though it had initially been filed along with the main appeal. Even otherwise the defendants cannot be allowed to withdraw their admission regarding the ownership of the land and take a new plea altogether in Regular Second Appeal. 10. Accordingly, it is held that the Courts below have rightly come to the conclusion that there was a registered mortgage deed executed by Om Parkash in favour of the plaintiff-respondents for a sum of Rs.12,000/- and this concurrent finding regarding the execution of the mortgage deed by both the Courts below is not liable to be reversed. 11. On the 2nd issue regarding the right of the mortgagees to sue for possession, the lower appellate Court has held that in comparison to the defendant-appellants, the plaintiff-respondents had a registered mortgage deed in their favour and even if they had not been put in physical possession but the right to get the actual property mortgaged could not be curtailed and they had a superior right over the defendant-appellants who did not deny the ownership of Kanwar Shamsher Singh and they did not have a better right than the plaintiff-respondents. 12. 12. Section 68(1)(d) of the Transfer of Property Act, 1882 is reproduced below:- 68.Right to sue for mortgage money (1) The mortgagee has a right to sue for the mortgage money in the following cases and no others, namely:— (d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor.” 13. Reference to the provisions of Section 68(1)(d) of the Transfer to Property Act, 1882, is without any basis as that right of the mortgagee to sue for the mortgage money in case the mortgager fails to deliver the possession to him or secure the possession from any person claiming a title superior to that of the mortgager. This right is only if a mortgagee wants to claim his money back from the mortgager once he does not get possession from any person who has a better title than the mortgagor like that of a co-sharer. The right of the mortgagee to sue for possession, a third party cannot be curtailed in any manner under the provisions of the said section. The counsel for the defendant-appellants has also placed reliance in the case of Ramakkammal v. C.G.Subarathnam Iyer & others, AIR 1953 Madras 13 and Dyynoba Gangaram v. Dattoba Balappa, AIR 1947 Bombay 152. The said judgments only pertain to whether the mortgagee was seeking the right of mortgage money on account of non-delivery of possession and do not pertain to any issue regarding the right of a mortgagor to claim possession on the basis of a registered mortgage deed from a third party. In fact, in the judgment relied upon by the lower appellate Court, Gauri Singh and another (supra), the mortgagee had prayed for sale of the property as they were not put in possession and the decree for sale was modified by giving the mortgagee a decree for possession. In the case of Fundabai alias Saraswathibai & ors. v. Ramanagouda Mallanagouda Patil & another, AIR 1971 MYSORE 312, it has been held that it is open for the usufructuary mortgagee to sue either for money or for possession. Paragraph 11 of the judgment is relevant and is reproduced as under: “11. In the case of Fundabai alias Saraswathibai & ors. v. Ramanagouda Mallanagouda Patil & another, AIR 1971 MYSORE 312, it has been held that it is open for the usufructuary mortgagee to sue either for money or for possession. Paragraph 11 of the judgment is relevant and is reproduced as under: “11. It is also contended that the right of the mortgagee is only for money and not possession, under S.68(b) of the Transfer of Property Act. It has been held in (1864) ILR 17 Mad 469, (Linga Reddi v. Sama Rau) that it is open for the usufructuary mortgagee to sue either for money or for possession in case he is unable to obtain possession of the mortgaged property. In AIR 1942 Oudh 172 (Ram Padarath v. Nimar Singh) the mortgage deed recited that possession should be given to the mortgagee. It is also provided that if the mortgagee does not get possession or lost possession, he can recover money with interest by the sale of the mortgaged property. Admittedly possession was not given to the mortgagee. Negativing the contention of the mortgagor that it was a simple mortgage, it was held that whether it may be considered to be a usufructuary or anamalous mortgage, it was open in either case to the mortgagee to sue for possession of the mortgaged property. Hence, this contention of the appellant has also to be rejected.” 14. Similarly, in the case of Kehar Singh v. Jeon Singh Partap Singh, AIR 1962 PUNJAB 465, it was observed by the Division Bench that the right of mortgagee to sue for possession is there even though in that case, only a refund had been asked for. “In the present case, Exhibit P.D. was unregistered and there was no term in the deed that the mortgagor would be personally liable for the mortgagee amount. But since the mortgagee had been able to establish that though he was entitled to the possession of the mortgaged property, the mortgagor had failed to deliver the same to him, he could under the provisions of section 68(1)(d) of the Transfer of Property Act, sue for the return of the mortgage money, which had been found to have been paid to him. I may make it clear that I am basing my decision entirely on the authority of the Privy Council mentioned above. I may make it clear that I am basing my decision entirely on the authority of the Privy Council mentioned above. The contrary view taken in Kesari Ram V. Musafir Tewari, AIR 1937 All 711, and referred to in the judgment of the lower court, has noticed the Privy Council decision cited above. Wadhawa Singh V. Kunj Lal, AIR 1938 Lah 497 mentioned by the Court below has also not considered the Privy Council judgment, referred to above.” 15. Similar observation also flow from Puttamadamma Vs. Puttappa, AIR 1969 Mysore 20 wherein it has been held as under:- “6. To this submission made by Mr. Acharya there can be no answer. Under section 68 (1) (d) of the Transfer of Property Act, the mortgagee has a right to sue for the mortgage-money in a case where the mortgagor fails to deliver possession of the mortgaged property, although the mortgagee is entitled to such possession. 7. The clear meaning of this part of the sub-section is that in all cases where a mortgagor fails to deliver possession of the property mortgaged although the mortgagee is entitled to such possession, the mortgagee acquires the right to sue for the mortgagemoney. That right is acquired in a case where, under a usufructuary mortgage the mortgagor does not deliver possession of the property to the mortgagee on the date on which the mortgage comes into being and there is neglect on the part of the mortgagor to deliver possession. 16. Accordingly, the second question of law is also decided against the defendant-appellants and it is held that the mortgagees are entitled to enforce the mortgage deed under which they are claiming their right of possession against a third party and their right is not limited to sue only from the mortgage money from the mortgagor. 17. Accordingly, in view of both the questions being answered against the defendant-appellants, the present regular second appeal is dismissed with no orders as to costs. --------------