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2012 DIGILAW 764 (HP)

Palo Ram v. Guari

2012-10-30

Kuldip Singh

body2012
JUDGMENT Kuldip Singh, J. The plaintiff has come in second appeal against judgment, decree dated 13.11.2000 passed by learned District Judge, High Court of H.P. Chamba, Division Chamba in Civil Appeal No.45 of 1999, reversing judgment, decree dated 31.7.1999 passed by learned Sub Judge Ist Class, Dalhousie, District Chamba in Civil Suit No.5/95. Some of the parties originally before the trial Court have died, some names have been deleted, therefore, in this judgment the parties are referred as plaintiff and defendants. 2. The plaintiff Palo Ram filed the suit for declaration that he has become owner of the land measuring 13-15 bighas, specifically described in the plaint and for possession of said land. The pleaded case of the plaintiff is that suit land is entered in the name of the defendants as mortgagors and plaintiff as mortgagee as per jamabandi for the year 1989-1990. The suit land was mortgaged with the plaintiff much prior to the year 1953 before settlement. Farangu one of the owners during settlement admitted that suit land had been mortgaged to plaintiff for a consideration of `250-/ and plaintiff was in possession of the suit land. On that basis mutation was entered and attested on 10.9.1953. Farangu one of the mortgagors in the year 1967 sold his rights in the suit land to defendants No.1,2 and Chuni, who expired in the year 1984 and defendants No.1, 2 inherited the estate of Chuni. The plaintiff was in the Army in the year 1967. The possession was given by plaintiff to the mortgagors of the suit land. The defendants failed to redeem the mortgaged land within 30 years; hence plaintiff has become owner of the suit land by afflux of time. 3. The plaintiff retired from Army in the year 1984. He requested the defendants that he has become owner of the suit land. They were in possession of the suit land as mortgagors, therefore, they should hand over the possession of the suit land to plaintiff, which they failed, hence the plaintiff filed the suit. 4. The defendants No.1, 2 had filed joint written statement. They took preliminary objections of maintainability, estoppel, limitation and that plaintiff has not come to the Court with clean hands. On merits, the description of the suit land was admitted; it has been denied that the revenue entries do not depict true position. 4. The defendants No.1, 2 had filed joint written statement. They took preliminary objections of maintainability, estoppel, limitation and that plaintiff has not come to the Court with clean hands. On merits, the description of the suit land was admitted; it has been denied that the revenue entries do not depict true position. Farangu was not competent to make any statement on behalf of other co-sharers. The alleged mutation is illegal. Farangu had never made any statement. The defendants No.1, 2 had purchased the land from Amro and Farangu vide rapat No.167. It has been denied that plaintiff gave possession to the mortgagors in the year 1967. The plaintiff was never in possession of the suit land, 5. The defendants No.3 to 7 had filed separate but common written statement and took more or less same pleas as taken by defendants No.1, 2. The plaintiff filed replication to the written statement of defendants No.1 and 2 and reiterated his stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff has become owner of the suit land by afflux of time as alleged? OPP 2. Whether the plaintiff is entitled to the injunction as alleged? OPP 3. Whether the suit is not maintainable? OPD 4. Whether the plaintiff is estopped by his act and conduct? OPD 5. Whether the suit is barred by time? OPD 6. Whether the plaintiff has not approached the court with clean hands? OPD 7. Relief. The issues No.1,2 were answered in affirmative, issues No.3 to 6 were answered in negative and the learned trial Court decreed the suit on 31.7.1999. The plaintiff was declared owner of the suit land. A decree of possession was passed in favour of the plaintiff. Gauri and Ran Singh defendants filed appeal against judgment, decree dated 31.7.1999 which was allowed by learned District Judge on 13.11.2000 and the suit of the plaintiff was dismissed. It has been held that prior to the year 1967 plaintiff did not remain in possession of the suit land. The plaintiff has not become owner of the suit land as he had not agitated the matter before the competent Court within the limitation, even though, the mortgaged of the suit land was not redeemed by defendants No.1 and 2. The plaintiff did not file a suit for foreclosure or for recovery of possession within period of limitation. 6. The plaintiff has not become owner of the suit land as he had not agitated the matter before the competent Court within the limitation, even though, the mortgaged of the suit land was not redeemed by defendants No.1 and 2. The plaintiff did not file a suit for foreclosure or for recovery of possession within period of limitation. 6. The plaintiff has come in second appeal which has been admitted on following substantial questions of law:- 1. Whether in case of usufructuary mortgage, on voluntary redelivery of possession of mortgaged property by the mortgagee to the mortgagor without terminating the mortgage, period of limitation in suit for possession by mortgagee will not start running from the date of redelivery of possession but from the date when right of mortgagor to redeem is extinguished by lapse of time as provided under Article 61 of Limitation Act, 1963? 2. When right of redemption is extinguished by lapse of time, Article 63 (b) of the Limitation Act, 1963 has no application in a suit for possession of mortgagee based on having acquired larger interest of a full owner by shedding the mortgage interest? 7. I have heard the learned counsel for the parties and have also gone through the record. The substantial questions of law No.1 and 2 are taken collectively for determination. The suit has been filed by plaintiff on the plea that suit land was mortgaged with plaintiff prior to the year 1953. The suit land has not been redeemed within 30 years, he has become owner of the suit land by afflux of time. Therefore, now plaintiff is entitled to possession of the suit land as owner. It has been submitted that the mortgagors failed to redeem the suit land, therefore, by virtue of Section 27 of the Indian Limitation Act, 1963(for short Act unless context is otherwise) their right in the suit property has been extinguished. The plaintiff is entitled to possession of the suit land. The learned counsel for the plaintiff has relied Banarsi Dass v. Jiwan Ram (deceased) son of Dewan Chand and others, AIR 1991 Punjab and Haryana 85 in support of his submission. 8. The learned District Judge has recorded a finding that after the year 1967 the defendants No.1 and 2 are in possession of the suit land. The learned counsel for the plaintiff has relied Banarsi Dass v. Jiwan Ram (deceased) son of Dewan Chand and others, AIR 1991 Punjab and Haryana 85 in support of his submission. 8. The learned District Judge has recorded a finding that after the year 1967 the defendants No.1 and 2 are in possession of the suit land. The plaintiff has admitted in his cross-examination that at present the suit land is in possession of the appellants. The learned District Judge has non-suited the plaintiff on the ground that he has not adopted the course by filing a suit for foreclosure or possession under the Act. The limitation period for plaintiff started in the year 1967 for filing such suit which he has not filed. Therefore, plaintiff is not entitled to relief claimed. 9. The question has been raised that period of limitation for the plaintiff for filing suit for possession will start from the year 1967 or from the year 1983 when right of mortgagors to redeem the suit property had extinguished by lapse of time under Article 61 of the Act. It has also been submitted that right of possession of the plaintiff under article 63(b) of the Act had became meaningless on plaintiff having acquired larger interest of full ownership on mortgagors, failing to redeem the land. The suit was filed on 11.1.1995. 10. The mortgagee under Article 63 of the Act has 30 years period of limitation for filing a suit for foreclosure and limitation for such suit starts from the date when money secured by the mortgagee become dues. The mortgagor under Article 63(b) of the Act is entitled to file a suit for possession of immovable property mortgaged within 12 years and the period of limitation for such type of suit starts when the mortgagee becomes entitled to possession. The suit on the basis of title under Article 65 of the Act can be filed within 12 years when the possession of the defendant becomes adverse to the plaintiff. 11. There is no denial that plaintiff has not filed a suit for foreclosure, therefore, Article 63(a) of the Act is not applicable. In the plaint, it has been pleaded that land was mortgaged with plaintiff much prior to the settlement in the year 1953. PW-1 Palo Ram has stated that land was mortgaged with his father, during settlement he became the mortgagee. In the plaint, it has been pleaded that land was mortgaged with plaintiff much prior to the settlement in the year 1953. PW-1 Palo Ram has stated that land was mortgaged with his father, during settlement he became the mortgagee. It means the land was mortgaged much prior to the year 1953. 12. The limitation for redemption is 30 years under Article 61 (a) of the Act. In other words the land could be redeemed by mortgagors before 1983. There is no denial that possession of the suit land is with the mortgagors. The limitation for plaintiff to file suit for possession under Article 63 (b) of the Act started prior to the year 1983, Similarly limitation for filing a suit even under Article 65 also started prior to the year 1983, but the suit was filed on 11.1.1995. The plaintiff has not specifically stated when the mortgage commenced but collective reading of the plaint and statement of PW-1 indicates that mortgage started prior the year to 1953 and even if, it is assumed that prior to the year 1953 could be even 31.12.1952 in that case also limitation for redemption for filing a suit for redemption under Article 61(a) of the Act expired on 31.12.1982 and therefore, limitation for filing the suit by mortgagee for possession under Article 63(b) starting on 31.12.1982 expired on 31.12.1994, still limitation for filing a suit under Article 65 starting on 31.12.1982 expired on 31.12.1994. Thus taken from any angle the present suit filed on 11.1.1995 is beyond period of limitation. In these circumstances Section 27 of the Act will apply to the suit for possession of the plaintiff. The defendants are not seeking possession of the suit land so as to apply Section 27 to them. Banarsi Dass (supra), therefore, is not applicable to the defendants. 13. In Kanshi Ram and another v. Lachhman (dead) through LRs and others (2001) 5 SCC 546 the Supreme Court while considering various provisions of H.P. Debt Reduction Act, 1976 has held that the Legislature has taken care to make the relevant provisions of the said Act granting relief to debtors by giving overriding effect over the law, agreement, contract or decree contrary to the provisions of the said Act. The possession of the suit land is still with the mortgagors/defendants, the plaintiff himself has not filed the suit within the limitation provided under Article 61(b) of the Act. There is no merit in the appeal. The substantial questions of Law Nos.1 and 2 are decided against the appellant. 14. In view of above discussion, appeal fails and is accordingly dismissed with no order as to costs.