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Himachal Pradesh High Court · body

2012 DIGILAW 729 (HP)

Wattni v. Biru

2012-10-16

SANJAY KAROL

body2012
Judgment Sanjay Karol, J. 1. Suit land was owned by one Shri Biru (plaintiff-original respondent No.1 herein and for all intents and purposes his legal heirs are referred to as Shri Biru). In the year 1933-34, Shri Biru created a usufructuary mortgage in favour of Shri Brij Lal (whose legal heirs were original defendants No.8 to 16-original respondents No.2 to 10 and for all intents and purposes are referred to as Shri Brij Lal). In the year 1941-42, Shri Brij Lal, as a mortgagee, inducted one Shri Dyala (predecessor-in-interest of original defendants No.1 to 7-original appellants in the present appeal and for all intents and purposes are referred to as Shri Dyala), as a tenant over the suit land. 2. Sometime in the year 1981/89, mortgagor paid `400/- to the mortgagee and mutation No.189 of redemption was sanctioned by the authorities, in favour of Shri Biru on 1.3.1989. 3. Thereafter, on 3.8.1989 Shri Biru filed a suit for possession of the land against the successors-in-interest of Shri Brij Lal and Shri Dayala. In terms of judgment and decree dated 31.8.1992 passed by Sub Judge 1st Class, Una in Civil Suit No.139/1989, titled as Biru versus Smt. Wattni and others, the same was dismissed. 4. Aggrieved thereof, Shri Biru filed Civil Appeal, being Civil Appeal No.97/94, titled as Biru versus Smt. Wattni and others, and in terms of judgment and decree dated 23.4.1996, passed by the Additional District Judge-1, Kangra at Dharamshala, the said appeal was allowed and plaintiff’s suit decreed. Findings returned by the Sub Judge were reversed and the judgment and decree set aside. Hence, the present appeal. 5. Present appeal was admitted on the following substantial questions of law: “1. Whether after the period of limitation to redeem the suit land expires, the respondent-plaintiff still retains the right to redeem the suit land just because the mortgagees have not challenged the right of redemption? 2. Whether the order of mutation in respect of redemption of suit land passed much after the prescribed period of redemption would be sustainable in the eyes of law?” 6. The facts, as noticed herein above, cannot be disputed. In any event, they stand established from the documents placed on record by the parties, i.e. Jamabandis pertaining to the year(s) 1933-34(Ex. P-2), 1941-42 (Ex. P-4), 1957-58 (Ex. D-3), 1966-67 (Ex. D-4), 1986-87 (Ex. P-5) and Misl Hakiat for the year 1988-89 (Ex. P-6). 7. The facts, as noticed herein above, cannot be disputed. In any event, they stand established from the documents placed on record by the parties, i.e. Jamabandis pertaining to the year(s) 1933-34(Ex. P-2), 1941-42 (Ex. P-4), 1957-58 (Ex. D-3), 1966-67 (Ex. D-4), 1986-87 (Ex. P-5) and Misl Hakiat for the year 1988-89 (Ex. P-6). 7. Mr. Subhash Sharma, learned counsel for Shri Dyala, has invited my attention to the provisions of Section 27 and Article 61(b) of the Limitation Act, 1963 (herein after referred to as the Limitation Act) to contend that the suit filed was beyond the period of limitation. In a passing reference, he mentioned a decision of the Full Bench of this Court in Bhandaru Ram versus Sukh Ram and others, 2012 (1) Him.L.R. 445. 8. Mr. Bhupinder Gupta, learned Senior Advocate, ably assisted by Ms Charu Gupta, Advocate, learned counsel for Shri Biru, has strongly argued that the suit filed on the basis of title, is within the period of limitation, which is to be reckoned in terms of Article 65 of the Limitation Act. It is also urged that tenant has no better right than the mortgagee and keeping in view the ratio of law laid down by this Court in Smt. Kanta Devi versus Shri Khushia, 1996 (2) SLC 365, tenant has to go with the mortgagee. 9. Learned counsel have also invited my attention to the following decisions: 1. S. Harbans Singh versus Mangat Ram 1978(1) R.C.R 824; 2. Iqbal Kaur and another versus Wazir Chand and others,1994(1) SLJ 827; and 3. Bedi alias Bhedi and another versus Girdhari (since deceased) and others,1986 PLJ (P&H) 622. 10. The moot question, which needs to be considered in the present case, is as to whether the suit filed by the plaintiff is as a mortgagor or on the basis of title when possession of the defendant (s) became adverse to him. To determine the same, one has to look into the plaint so filed by the plaintiff. Since decision of the case materially hinges thereupon, the same is reproduced in toto: “1. That the area of land, measuring 9 Kanals 18 marlas bearing old Khasra Nos.145,242,244,234, 236,238/1,240,241 owned and possessed by the plaintiff was previously mortgaged with possession to the predecessor in interest of defendants No.8 to 16 some time back and the possession was delivered to the mortgagees. That the area of land, measuring 9 Kanals 18 marlas bearing old Khasra Nos.145,242,244,234, 236,238/1,240,241 owned and possessed by the plaintiff was previously mortgaged with possession to the predecessor in interest of defendants No.8 to 16 some time back and the possession was delivered to the mortgagees. Extract copy of relevant revenue record is attached herewith. 2. That the land mentioned in para No.1 of the plaint, during the consolidation proceedings came to become the land fully detailed above in the head note of the plaint. Copy of Missal Hakiyat for the year 1988-89 is attached. 3. That the mortgage in question was redeemed on payment of Rs.400/- to the mortgagees qua the land mentioned in para No.1 of the plaint and accordingly mutation No.189 of redemption has been sanctioned on 1.3.1989 in favour of the plaintiff. 4. That the predecessor-in-interest of defendants No.1 to 7 was inducted as tenant by the mortgagees, the predecessor-in-interest of defendants No.8 to 16 and after redemption of the suit land neither the predecessor in interest nor the defendants No.1 to 7 have any right and interest in the suit property. The possession of defendants No.1 to 7 over the land in suit is that of a trespasser. 5. That the defendants No.1 to 7 were asked time and again to admit the claim of the plaintiff and to deliver the possession of the suit land but they have refused to accede to the request of the plaintiff for the last one month. 6. That the cause of action accrued to the plaintiff from the date when the suit land was redeemed and for the last one month from the refusal of the defendants No.1 to 7 to accede to the request of the plaintiff. 7. That the cause of action accrued as well as the land in suit as also the permanent abode of the parties is situate within the local limits of this Hon’ble Court, hence this Court has the jurisdiction to try the suit. 8. That the value of the suit for the purpose of court fee being ten times the tentative land revenue is Rs.10.00 and for the purpose of jurisdiction being thirty times the tentative land revenue is Rs.30/-. Requisite court fee is affixed on the plaint. 8. That the value of the suit for the purpose of court fee being ten times the tentative land revenue is Rs.10.00 and for the purpose of jurisdiction being thirty times the tentative land revenue is Rs.30/-. Requisite court fee is affixed on the plaint. The plaintiff therefore respectfully prays that a decree for possession of land meausirng 10 Kanals 2 marlas comprised in Khewat No.6, Khatauni No.8, Khasra No.117(1-10), 122(1-4), 196(2-1), 200 (0-5), 202 (502), as entered in Missal Hakiyat for the year 1988-89, situate in Teeka Tanda, Mauza Thara, H.B. No.10 of Tehsil Bangana, District Una,, owned by the plaintiff may kindly be granted in favour of the plaintiff and against the defendants with costs.” (Emphasis supplied) 11. Mortgagees remained ex-parte throughout. They 12. Tenants filed a written statement taking the suit to be that of redemption. The parties went to trial on such basis and it is for this reason that the Court framed the following issues: 1. Whether the suit land has been redeemed within limitation? OPP 2. If issue No.1 is not proved in affirmative, whether the plaintiff has lost his right over the suit land, as alleged? OPD 3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 4. Whether plaintiff has no cause of action? OPD 5. Relief did not even file any written statement. 13. Plaintiff and defendant examined only one witness each. Trial Court decided Issue No.1 in the negative, holding that the suit was filed beyond the period of limitation, which is thirty years. The Court specifically held that entry of mutation No.189, which was entered beyond the period of limitation prescribed for redemption could not have revived the plaintiff’s right of ownership. 14. However, lower appellate Court, by referring to and relying upon the decision rendered by the High Court of Punjab and Haryana in S. Harbans Singh (supra), has held that a tenant of a mortgagee has no right to challenge the factum of redemption of mortgage being bogus and collusive. 15. In this backdrop, the relevant provisions of the Limitation Act, referred to and relied upon by the parties, which are reproduced as under, need to be examined: “27. 15. In this backdrop, the relevant provisions of the Limitation Act, referred to and relied upon by the parties, which are reproduced as under, need to be examined: “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.” Articles “61. By a mortgagor- (a) to redeem or recover Thirty years When the right to possession of immovable redeem or to property mortgaged; recovery possession accrues. (b) to recover possession Twelve years When the transfer of immovable property becomes known to mortgaged and afterwards the plaintiff transferred by the mortgagee for a valuable consideration. (c) to recover surplus Three years When the collections received by the mortgagor re-mortgagee after the enters on the mortgage has been mortgaged satisfied” property.” (Emphasis supplied) “65. For possession of Twelve When the immovable property or years possession of the any interest therein based defendant becomes on title adverse to the plaintiff. Explanation.-For the purposes of this article- (a) where the suit is by a remainderman, a reversioner (other than a landlord) or a devisee, the possession of the defendant shall be deemed to become adverse only when the estate of the remainderman, reversioner or devisee, as the case may be, falls into possession. (b) Where the suit is by a Hindu or Muslim entitled to the possession of immovable property on the death of a Hindu or Muslim female, the possession of the defendant shall be deemed to become adverse only when the female dies; (c) Where the suit is by a purchaser at a sale in execution of a decree when the judgment- debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was (Emphasis supplied) out of possession.” 16. Now, significantly, in my considered view, plaintiff filed the suit as a mortgagor. His prayer for possession against all the defendants is specific. Nature and character of the suit is that of recovery of the property mortgaged by the mortgagor. The suit, by no stretch of imagination, can be said to be based on title. The defendants are claiming themselves to be tenants in possession thereof. 17. His prayer for possession against all the defendants is specific. Nature and character of the suit is that of recovery of the property mortgaged by the mortgagor. The suit, by no stretch of imagination, can be said to be based on title. The defendants are claiming themselves to be tenants in possession thereof. 17. Article 61(a) is divided into two parts, one deals with the right of redemption and the other deals with the right to recover possession of immovable property so mortgaged. 18. It is true that in the instant case, plaintiff has not specifically pleaded that the suit is for redemption of the mortgage property but it is a suit by a mortgagor for recovery of immovable property which was mortgaged and this right to recover possession thereof would accrue within a period of thirty years from the date when the debt became due and payable. In the instant case, there is no contract to the contrary to show that the debt became due and payable on the day it was so paid by the mortgagee to the mortgagor, which was way back in the year 1933-34. Consequently, by prescription of limitation under Section 27, the right to recover the property automatically stood extinguished after the expiry of thirty years from the day of accrual of such right. 19. Significantly, the Full Bench of this Court in Bhandaru Ram (supra), after taking into account several decisions rendered by various Courts of the land, has held that in a case of usufructuary mortgage, where no period is prescribed, mortgagee is under an obligation to put back the mortgagor in possession of the mortgaged property, the moment the amount of mortgage is paid back. However, if the mortgagee refuses to do so, it is open for the mortgagor to institute a suit for foreclosure, which he has to do so within the period of limitation so prescribed, of the money secured by the mortgage becoming due. Further in a case of usufructuary mortgage, where no period of payment is prescribed, money secured by the mortgage becomes due the moment it is paid to the mortgagor. Further in a case of usufructuary mortgage, where no period of payment is prescribed, money secured by the mortgage becomes due the moment it is paid to the mortgagor. As far as the mortgagor is concerned, in the absence of any fixed period, in a case of usufructuary mortgage, he has every right to redeem or recover the possession, the moment he executes the deed or the moment parties are in jural relationship of mortgagor and mortgagee. It is further held that Section 27 of the Limitation Act, which is based on public policy, provides for a lifespan for the legal remedy. It is intended to prevent disturbance or deprivation of what is acquired in equity and justice, by long enjoyment or what may be lost by one’s inaction, negligence or latches. The Court specifically held that in view of the prescription of limitation of thirty years under Article 61 of the Schedule of the Limitation Act, read with Section 60 of the Transfer of Property Act, 1882, a mortgagor has to institute the suit for redemption or recovery of possession within a period of thirty years of the mortgage, since his right to redeem or recover possession accrues to him the moment parties are in a jural relationship that of a mortgagor and a mortgagee. In the concluding paragraph of the said judgment, the Court held: “35. For all the above reasons, with great respect, we are unable to be persuaded by the Full Bench Decision of the Punjab & Haryana High Corut in Ram Krishan & ors. Vrs. Sheo Ram & ors. Reported in AIR 2008 Punjab & Haryana 77. To conclude, the Division Bench decision of this Court in Jaimal & others versus State of H.P. & others., AIR 2010 Himachal Pradesh 7, the un-reported decisions in RSA No.378 of 2008 titled Prakash Chand and others versus Amar Singh and another, and Tula Ram & another versus Shanti RSA No.271 of 2002, which have taken the view that there is no period of limitation for filing a suit for redemption or recovery of possession of usufructuary mortgage which has not fixed any time for repayment of mortgaged money do not reflect the correct position of law and hence they are over-ruled. Reference is answered as follows: The period of limitation for filing a suit for recovery of possession of immoveable property or redemption of usufructuary mortgages which have not fixed any time for repayment of mortgage money is 30 years as prescribed under Article 61 to the Schedule to the Limitation Act, 1963 (60 years under Article 148 as per Indian Limitation Act, 1908)………” 20. Now, if the suit filed by the owner is on the basis of mortgage and as a mortgagor then keeping in view the ratio of law laid down by the Full Bench of this Court in Bhandaru Ram (supra), obviously the suit is beyond the period of limitation and the right of the owner in view of Section 27 of the Limitation Act stood extinguished from the date of the creation of the usufructuary mortgage. 21. Right of redemption under the mortgage deed can come to an end only in a manner known to law. Such extinguishment of the right can take place by a contract between the parties, by a merger or by a statutory provision which debars the mortgagor from redeeming the mortgage. {Jayasingh Dnyanu Mhoprekar and another versus Krishna Babaji Patil and another, (1985) 4 SCC 162 }. 22. In L.K. Trust versus EDC Limited and others, (2011) 6 SCC 780 ,Hon’ble apex Court, has held as under: “The mortgagor under Indian law is the owner who had parted with some rights of ownership and the right of redemption is the right which he exercises by virtue of his residuary ownership to resume what he has parted with. In India this right of redemption, however, is statutory one. The right of redemption is an incident of a subsisting mortgage and subsists so long as the mortgage itself subsists. The judicial trend indicates that dismissal of an earlier suit for redemption whether as abated or as withdrawn or in default would not debar the mortgagor from filing a second suit for redemption so long as the mortgage subsists. This right cannot be extinguished except by the act of parties or by decree of a court.” 23. In the instant case, Article 61(b) would also not apply as it deals with a situation where the mortgaged land is “transferred”. Parting of possession as a tenant and transfer of property are totally separate. 24. This right cannot be extinguished except by the act of parties or by decree of a court.” 23. In the instant case, Article 61(b) would also not apply as it deals with a situation where the mortgaged land is “transferred”. Parting of possession as a tenant and transfer of property are totally separate. 24. Noticeably, the period of limitation in the instant case can also not be extended by virtue of the provisions of Section 30 of the Limitation Act. Mortgage was created in the year 1933-34. At that time, period of limitation under the provisions of the Indian Limitation Act, 1908, for redeeming the mortgage was sixty years. This period, by virtue of the provisions of the Limitation Act was curtailed to thirty years and it was open for the plaintiff to have filed the suit within seven years from such enactment. Now, if the debt became due in the year 1933-34, period of thirty years would expire in the year 1963-64 and even if seven more years were to be added, the extended period of limitation would still expire in the year 1970-71. 25. Undisputedly, in the instant case, plaintiff claims to have redeemed the debt in the year 1981, in relation to which mutation was attested in the year 1989. Now, this was impermissible in law as right to ownership/title stood extinguished. 26. Significantly, the State of Himachal Pradesh enacted the Himachal Pradesh Restitution of Mortgaged Lands Act, 1976 and plaintiff also did not file any application praying for the restitution of the possession of the mortgaged land under the provisions of this Act. Shri Dyala was uninterruptedly occupying the suit premises as a tenant. 27. In this background, submission on the part of Shri Biru that the suit is based on title is thus misconceived, untenable in law and only merits rejection. 28. Decisions referred to and relied upon by the lower appellate Court, to say the least, were totally inapplicable. In view of the decision rendered by the Full Bench of this Court in Bhandaru Ram (supra), I need not separately deal with the same. 29. 28. Decisions referred to and relied upon by the lower appellate Court, to say the least, were totally inapplicable. In view of the decision rendered by the Full Bench of this Court in Bhandaru Ram (supra), I need not separately deal with the same. 29. In fact, the trial Court, in my considered view, rightly referred to and relied upon the decision rendered by the Punjab & Haryana High Court in Bedi alias Bhedi (supra), wherein it is held that even with the consent of the mortgagees, right of the mortgagor, once it is extinguished by virtue of Section 27 of the Limitation Act, cannot be revived by correction of entries of mutation in the revenue record. 30. Further, in Mahabir Gope and others versus Harbans Narain Singh and others, AIR 1952 SC 205 ,the apex Court has held that: “(6) The general rule is that a person cannot by transfer or otherwise confer a better title on another than he himself has. A mortgagee cannot, therefore, create an interest in the mortgaged property which will enure beyond the termination of his interest as mortgagee. Further, the mortgagee, who takes possession of the mortgaged property, must manage it as a person of ordinary prudence would manage it if it were his own; & he must not commit any act which is destructive or permanently injurious to the property; see S.76, sub-clauses (a) & (e) of the Transfer of Property Act. It follows that he may grant leases not extending beyond the period of the mortgage; any leases granted by him must come to an end at redemption. A mortgagee cannot during the subsistence of the mortgage act in a manner detrimental to the mortgagor’s interests such as by giving a lease which may enable the tenant to acquire permanent or occupancy rights in the land thereby defeating the mortgagor’s right to ‘khas’ possession; it would be an act which would fall within the provisions of S. 76, sub-clause (3) of the Transfer of Property Act. (7) A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period in a different matter altogether. It is an exception to the general rule. (7) A permissible settlement by a mortgagee in possession with a tenant in the course of prudent management and the springing up of rights in the tenant conferred or created by statute based on the nature of the land and possession for the requisite period in a different matter altogether. It is an exception to the general rule. The tenant cannot be ejected by general rule. The tenant cannot be ejected by the mortgagor even after the redemption of the mortgage. He may become an occupancy ‘raiyat’ in some cases and a non-occupancy ‘raiyat’ in other cases. But the settlement of the tenant by the mortgagee must have been a ‘bona fide’ one. This exception will not apply in a case where the terms of the mortgage prohibit the mortgagee from making any settlement of tenants on the land either expressly or by necessary implication.” (Emphasis supplied) 31. Since then, this ratio of law has been consistently followed by the Apex Court in Jadavji Purshottam versus Dhami Navnitbhai Amaratlal and others, (1987) 4 SCC 223 ; Harihar Prasad Singh and another versus Deonarain Prasad and others, AIR 1956 SC 305 ; Asa Ram and another versus Mst. Ram Kali and another, AIR 1958 SC 183 ; Hanumant Kumar Telesara versus Mohan Lal, (1988) 1 SCC 377 ; Pomal Kanji Govindji and others versus Vrajlal Karsandas Purohit and others, (1989) 1 SCC 458 ; and Carona Shoe Co. Ltd. and another versus K.C. Bhaskaran Nair, (1989) 2 SCC 395 . 32. Also, normally in urban areas, mortgagee’s interest lasts only till such times the amount of mortgage is not paid out. On redemption of the mortgage, the title of the mortgagee comes to an end. A derivative title from him must ordinarily come to an end with the termination of the mortgagee’s title, unless it is an act of prudent management. {The All India Film Corporation Ltd., and others versus Sri Raja Gyan Nath and others, 1969 (3) SCC 79 and M/s Sachalmal Parasram versus Smt. Ratnabai and others, (1973) 3 SCC 198 }. 33. However, in the instant case, there is nothing in the pleadings/evidence of the tenant to establish that he was inducted in the suit premises in the course of prudent management. Had it been so, things still would have been better for him. 34. The Central Government enacted the Punjab Reorganization Act, 1966. 33. However, in the instant case, there is nothing in the pleadings/evidence of the tenant to establish that he was inducted in the suit premises in the course of prudent management. Had it been so, things still would have been better for him. 34. The Central Government enacted the Punjab Reorganization Act, 1966. By virtue of provisions of the said Act, the area in which the suit land is situated stood merged with the State of Himachal Pradesh. In the State of Punjab, certain tenancies were protected by virtue of the Punjab Security of Land Tenures Act 1953 and the Punjab Tenancy Act 1887, which stood repealed by virtue of the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. 35. An Eleven Judge Bench of the apex Court in L.C. Golak Nath and others versus State of Punjab and another, (AIR 1967 SC 1943), has upheld the validity of the Punjab Security of Land Tenures Act, 1953. 36. In fact, while considering the provisions of the Bombay Tenancy and Agricultural Lands Act, a Constitution Bench of the apex Court in Dahya Lal and others versus Rasul Mahomed Abdul Rahim and others, AIR 1964 SC 1320 , has held that the Act itself protects the tenancies created by a mortgagee. 37. With regard to Punjab Pre-emption Act, there is also a decision of the apex Court in Ram Chand versus Randhir Singh and others, (1994) 6 SCC 552 . 38. In Kanta Devi (supra), the decision referred to on behalf of Shri Biru, a co-ordinate Bench of this Court has specifically held that tenancies could not have been protected by virtue of the aforesaid Acts. Since on the main question itself, the suit filed by the plaintiff is held to be not maintainable being barred by limitation, his right in the suit land having extinguished, this question is left open. Perhaps at some stage the decision may require reconsideration in view of the decisions rendered by the apex Court, as noticed herein above. 39. Thus, in my considered view, the lower appellate Court seriously erred in decreeing the suit filed by the plaintiff, holding that Shri Dyala had no locus standi to challenge the redemption of the mortgage by the mortgagor. In fact this question was never in issue at all. The issue was pure and simple. 39. Thus, in my considered view, the lower appellate Court seriously erred in decreeing the suit filed by the plaintiff, holding that Shri Dyala had no locus standi to challenge the redemption of the mortgage by the mortgagor. In fact this question was never in issue at all. The issue was pure and simple. The lower appellate Court totally misdirected itself in adopting such an approach and not squarely dealing with the question of limitation, which was rightly dealt with by the trial Court. 40. In view of the above discussion, the substantial questions of law are answered accordingly. 41. Consequently, the appeal is allowed with costs and the judgment and decree dated 23.4.1996, passed by the first appellate Court in Civil Appeal No.97/94, titled as Biru versus Smt. Wattni and others, are set aside and the judgment and decree dated 31.8.1992, passed by Sub Judge 1st Class, Una in Civil Suit No.139/1989, titled as Biru verus Smt. Wattni and others, is upheld. Appeal stands disposed of. Pending application(s), if any, also stand disposed of.