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2013 DIGILAW 1319 (PAT)

Shaikh Md. v. Seema Devi

2013-11-21

MUNGESHWAR SAHOO

body2013
ORDER 1. Heard the learned senior counsel, Mr. Sukumar Sinha, appearing on behalf of the appellant and the learned counsel, Mr. Pandit Ji Pandey on behalf of the respondent under Order 41 Rule 11 of the Code of Civil Procedure. 2. The defendant appellant has filed this Second Appeal against the Judgment and Decree dated 15.09.2010 passed by the learned Additional District Judge, 1st Danapur Patna in Title Appeal No. 75 of 2005 whereby the learned lower appellate Court dismissed the appeal and confirmed the Judgment and Decree dated 23.07.2005 passed by the learned Munsif, Danapur, District Patna in Title Redemption Suit No. 35 of 2000. 3. The plaintiffs-respondents filed the aforesaid title suit for redemption of the usufructuary mortgage deed dated 24.07.1969 alleging that the father-in-law of the plaintiff No.1 executed the usufructuary mortgage deed dated 24.07.1969 in favour of Sheikh Md. Shaukat for a period of 5 years for Rs. 6500/- Subsequently, the mortgagee filed money suit No.7 of 1976 which was decreed ex-parte by terms of Judgment and ex-parte decree dated 30.04.1976 and pursuant to that Decree, the mortgagee filed execution case No.11 of 1976 wherein the mortgage property was auction sold in the name of Sheikh Md. Iliyas. When the plaintiff came to know about the said money suit No.7 of 1976, the plaintiff filed title suit No.143 of 1982 for declaration of the money suit decree and the execution proceeding as null and void and also for setting aside the Judgment and Decree. The said title suit No.143 of 1982 was decreed on 22nd August, 1986 and it was declared that the money decree passed in money suit No.7 of 1976 is null and void. Thereafter, the plaintiff approached the mortgagee for redemption and on refusal, the present suit was filed. 4. The defendant-appellant filed written statement alleging that in fact no possession was given to the mortgagee after execution and registration of the usufructuary mortgage deed dated 24.07.1969. The money suit filed by Shaukat Ali was decreed ex-parte when in spite of notice Ambika Prasad Singh did not appear to contest the suit. After the ex-parte decree, Shaukat Ali filed execution case and in that execution case, the property was sold by the Court and possession was also delivered to the present appellant. The money suit filed by Shaukat Ali was decreed ex-parte when in spite of notice Ambika Prasad Singh did not appear to contest the suit. After the ex-parte decree, Shaukat Ali filed execution case and in that execution case, the property was sold by the Court and possession was also delivered to the present appellant. In title suit No.143 of 1982, the defendant did not file any written statement but in fact Ambika Prasad Singh got a fake written statement filed in the name of the defendant-appellant and the Judgment and Decree passed in the said title suit No.143 of 1982 is illegal, fraudulent and no notice was in fact served on the defendant. After purchase, the appellant remodeled the property investing Rs. 2 lakhs. The mortgage deed was executed on 24.07.1969 for a period of 5 years which expired on 23.07.1999, therefore, the plaintiff’s suit for redemption is barred by law of limitation. 5. The trial Court decreed the plaintiff’s suit recording a finding that the plaintiff’s suit is not barred by law of limitation and that the defendant-appellant had not acquired title by adverse possession. The defendant-appellant thereafter filed title appeal. The lower appellate Court confirmed the findings of the trial Court and dismissed the title appeal. 6. The learned senior counsel, Mr. Sukumar Sinha, appearing on behalf of the appellant raised three points. Firstly, the learned counsel submitted that the usufructuary mortgage is dated 24th July, 1969 and the suit has been filed in the year 2000, therefore, in view of Article 61 of the Limitation Act, the plaintiff’s suit itself is barred by law of limitation. According to the learned counsel, the limitation will start running from the date of execution of the mortgage deed. Secondly, the learned counsel submitted that the auction sale in favour of the defendant-appellant could not have been set aside without recourse to the provision as contained in Order 21 Rule 92 CP.C. Even if the Decree passed in money suit No.7 of 1976 was held to be null and void the auction sale made by the Court could not have been held so in title suit No.143 of 1982 wherein no notice was ever served on the present defendant. Thirdly, the learned counsel submitted that the Courts below have wrongly held that the appellant has not acquired title by adverse possession because there is clear pleading in the written statement that the defendant-appellant has acquired title by adverse possession. Accordingly to the learned counsel when the possession was delivered by the Court after auction purchase, the possession of the defendant-appellant became adverse to the plaintiff and the auction purchase is dated 15.02.1977 and the suit has been filed in the year 2000, therefore admittedly, the defendant appellant has acquired title by adverse possession but both the Courts below held that the defendant appellant has failed to prove title by adverse possession. 7. On the contrary, the learned counsel for the respondent submitted that according to Article 61 of the Limitation Act the Limitation will not start from the date of execution of the mortgage deed because in the mortgage deed, 5 years period was granted to refund the money. So far the decree passed in title suit No.143 of 1982 is concerned, according to the learned counsel for the respondent, the same has not been challenged by the defendant-appellant, therefore, it is binding on him because he was a party in the said title suit. So far the third ground is concerned, the learned counsel submitted that except the pleading in one line in the written statement, defendant has not examined any witness in the present case nor has produced documentary evidences. Therefore, on the basis of the one line pleadings, no finding can be recorded that he has acquired title by adverse possession. 8. Now, let us consider the points one by one raised by the learned counsel for the appellant. So far the first point is concerned, it relates to limitation. Article 61 (a) of the Limitation Act provides that to redeem or recover possession of immovable mortgage the period is 30 years when the right to redeem or to recover possession accrues. Therefore, so far this provision is concerned, it is not the case that the right to redeem or to recover possession will always accrues from the date of the execution of the mortgage deed. In the present case, it is admitted fact that the mortgage was made for 5 years. According to the written statement also, this five years period expired on 23rd of July, 1974. In the present case, it is admitted fact that the mortgage was made for 5 years. According to the written statement also, this five years period expired on 23rd of July, 1974. Therefore, in my pinion, the period of limitation will start running from this date and not from the date of execution of the mortgage deed. 9. So far second point is concerned, the learned counsel mainly submitted that without recourse to Order 29 Rule 92, the auction sale made in execution case No.11 of 1976 could not have been set aside. It may be mentioned here that admittedly, the said decree passed in title suit No.143 of 1982 is not under challenged in the present suit. The defendant-appellant never challenged the decree passed in the said suit. In the said suit, which was decreed ultimately the decree passed in money suit No.7 of 1976 and the auction sale has been held to be null and void, therefore, it is admitted fact by the parties that the auction sale made pursuant to the decree passed in money suit No.7 of 1976 has been declared as null and void. Thus, the decree passed in money suit is nonest in the eye of law. According to the learned counsel, the decree passed in title suit No.143 of 1982 is a void decree because no notice was served. It may be mentioned here that in the case of Inderjit Singh Grewal vs. State of Punjab, 2012 (1) B.L.J. 42 SC, the Hon’ble Supreme Court framed the question for decision at paragraph 12 as follows:- “However, the question does arise as to whether it is permissible for a party to treat the Judgment and Order as null and void without getting it set aside from the competent Court.” 10. While deciding this question, the Hon’ble Supreme Court considering the various decisions ranging from paragraph 12 to paragraph 14 ultimately held that it is evident that even if a decree is void ab initio, declaration to that effect has to be obtained by the person aggrieved from the competent Court. More so, such a declaration cannot be obtained in collateral proceeding. As stated above in the present case so far this suit is concerned, it is a redemption suit. More so, such a declaration cannot be obtained in collateral proceeding. As stated above in the present case so far this suit is concerned, it is a redemption suit. The question of validity or otherwise, illegality or otherwise of the decree passed in title suit No.143 of 1982 cannot be gone into because this matter is not related to the decision in the present case. 11. In the case of M.R. Satwaji Rao (Dead) by L.Rs. vs. B. Shama Rao, AIR 2008 SCC 2328, the Hon’ble Supreme Court at paragraph 13 has held that “Though the mortgagee purchased the mortgaged property pursuant to the decree in O.S. No. 120/51-52, as explained and interpreted the provisions of Order XXXIV Rule 14 CPC and Section 90 of the Indian Trusts Act, in the absence of recourse to Rule 14 of Order XXXIV, we hold that the relationship of mortgagor and mortgagee continues to subsist even thereafter, and his purchase is only in trust for the mortgagor. In view of the same, the right to redeem the mortgage is not extinguished and in the eye of law the purchase of the mortgaged property in pursuance of the decree for rent arrears must be deemed to have been made in trust for the mortgagor. In such circumstances, the High Court was right in granting preliminary decree for redemption. Insofar as the period of limitation is concerned, article 61 of the Limitation Act, 1963 applies and for a mortgagor to redeem or recover possession of immoveable property mortgaged; the period of limitation provided is 30 years when the right to redeem or to recover possession accrues.” It appears that in that case the mortgage was made on 19.02.1948 and the suit for redemption was filed in the year 1983. The mortgagee had purchased the property in auction sale in the year 1952. It appears that in that case also, the mortgage was made for five years. The only difference in the present case is that here the defendant has purchased the property in auction sale and in the case before Hon’ble Supreme Court, the mortgagee himself has purchased the property. Further, it is admitted fact that the money suit pursuant to which the auction sale was made has been held to be null and void, therefore, it is nonest in the eye of law. Further, it is admitted fact that the money suit pursuant to which the auction sale was made has been held to be null and void, therefore, it is nonest in the eye of law. Order 34 Rule 14 provides that where a mortgagee has obtaiend a decree for the payment of money in satisfaction of a claim arisng under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained under Order II Rule 2 C.P.C. Admittedly, the mortgagee never filed any suit for sale of the mortgage property for recovery of money. In other words, no recourse to Order 34 Rule 14 was ever taken by the mortgagee. Therefore, in this present case when the decree pursuant to which the auction sale has been set aside and that the Court had no jurisdiction to sale the mortgage property in a execution suit arising out of money decree the purchaser remains a mortgagee. 12. So far the third point, i.e., adverse possession is concerned, admitted fact is that except the one lien pleading that the defendant appellant has prescribed title by adverse possession no evidence has been produced. In the case of Vidhyadhar vs. Mankikrao AIR 1999 SC 1441 , the Hon’ble Supreme Court has held that “where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.” Further, the defendant appellant is claiming title on the basis of auction purchase. In view of the decision of the Supreme Court in A.I.R. 2008 S.C., the purchaser is in possession as trust for the mortgagor as such he will never acquire title by adverse possession. 13. In the case of Karnataka Board of Wakf vs. Govt. of India and Others, 2004 (3) PLJR 245, the Hon’ble Supreme Court has held that “a person pleading adverse possession has no equities in his favour. 13. In the case of Karnataka Board of Wakf vs. Govt. of India and Others, 2004 (3) PLJR 245, the Hon’ble Supreme Court has held that “a person pleading adverse possession has no equities in his favour. Pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” As stated above except the one line pleading, there is no pleading to the effect that since when the defendant appellant started prescribing title by adverse possession. It is also not clear when he renounced the claim of title through auction sale. As has been discussed above, no evidence has been produced, therefore, on the basis of mere one line pleading, no finding can be recorded that the defendant-appellant has prescribed his title by adverse possession. 14. In view of the above discussion, I find that none of the points raised by the leaned counsel for the appellant are substantial question of law involved for decision in the present case. Accordingly, this Second Appeal is dismissed at the admission stage itself.