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2013 DIGILAW 327 (HP)

Brij Lal v. Rakesh Kumar

2013-04-18

RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. This Regular Second Appeal is directed against the judgment and decree, dated 01.08.2008, passed by the learned District Judge, Hamirpur, H.P., in Civil Appeal No. 79 of 2007. 'Key facts' necessary for the adjudication of this Regular Second Appeal, are that the appellant-plaintiff (hereinafter referred to as "the plaintiff" for the sake of convenience) and predecessor-in-interest of proforma defendant, namely, Lakhu were duly recorded as mortgagees with possession over the land comprised in Khata No. 11, Khatauni No. 11, Khasra Nos. 253, 267, Kita 2, measuring 2 Kanals 16 Marlas, Khata No. 16, Khatoni No. 16, Khasra No. 258, measuring 1 Kanal 15 Marlas, Khata No. 20, Khatauni No. 20, Khasra No. 257, measuring 1 Kanal 11 Marlas and Khata No. 22, Khatauni No. 22, Khasra Nos. 254, 256 and 268, measuring 3 Kanals 12 Marlas, as per Jamabandi for the No. year 1991-92, situated in Tika Deyog, Mouza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. The suit land was mortgaged by the predecessor-in-interest of respondents-defendants (hereinafter referred to as "the defendants" for the sake of convenience), namely, Sunder, Lakhu, Tulsi and Kanshi for a consideration of Rs. 580/- in favour of predecessor-in-interest of the plaintiff Ganu and father of proforma defendant Lakhu. The possession of the suit land was also delivered at that time by the predecessor-in-interest of defendants in favour of predecessor-in-interest of plaintiff and proforma defendant. Mutation No. 64 was attested on 19th April, 1932. The defendants have never redeemed the mortgage and now after expiry of 30 years, they have lost their title to the property by efflux of time. In these circumstances, the suit was filed for declaration to the effect that the plaintiff and proforma defendant have become owners of the suit land and the defendants be restrained from interfering in the suit land. 2. Only defendants No. 5, 7 and 8 have contested the suit and rest of them were proceeded exparte. Though defendants No. 5, 7 and 8 have joined the proceedings, but no written statement was filed by them and their defence was struck off on 21st August, 2002 by the learned trial Court. The defendant No. 2, though represented by the learned Advocate, but did not file any reply. 3. The suit was earlier decreed for permanent prohibitory injunction by the learned Civil Judge (Junior Division)-1, Hamirpur on 05.02.2005. The defendant No. 2, though represented by the learned Advocate, but did not file any reply. 3. The suit was earlier decreed for permanent prohibitory injunction by the learned Civil Judge (Junior Division)-1, Hamirpur on 05.02.2005. The matter was carried in appeal and the judgment and decree were set aside on the ground that the decree was passed against the dead persons. Thereafter, an application under Order 22 Rule 4 (4) of the CPC was filed, which was allowed on 18.01.2007. 4. Learned Civil Judge (Senior Division), Hamirpur, H.P. framed the following issues: 1. Whether the plaintiff is entitled for declaration as prayed for? 2. Whether the plaintiff is entitled for the injunction as prayed for? 5. Learned Civil Judge (Senior Division), Hamirpur, H.P. partly decreed the suit for permanent prohibitory injunction by restraining the defendants from interfering with the possession of the plaintiff till the suit land is redeemed. 6. Feeling aggrieved by the judgment and decree, dated 23.3.2007, the plaintiff preferred an appeal before the learned District Judge, Hamirpur, H.P. He dismissed the same on 01.08.2008. Hence, this Regular Second Appeal. 7. This Regular Second Appeal was admitted on the following substantial questions of law on 27.10.2008: 1. Whether both the courts below have acted illegally by ignoring the case law as laid down by the Hon'ble Supreme Court of India in Prabhakaran and Others Vs. M. Azhagiri Pillai (Dead) by LRs. and Others, AIR 2006 SC 1567 . 2. Whether in view of the provisions contained under the Limitation Act, the right of redemption after expiry of period of 30 years comes to an end and the mortgagee becomes owner of the mortgaged property. 3. Whether the findings as recorded by both the courts below are vitiated on account of misleading and mis-appreciation of the material on record and also the provisions of law as applicable. 8. Plaintiff has appeared as PW-1. According to him, the suit land was mortgaged by Sunder, Tulsi, Lakhu and Kanshi in favour of Lakhu and Ganu Ram on 19.04.1932. The possession was also delivered to the mortgagees. The mutation was attested vide Ex.-P2. The consideration was of Rs. 590/-. Jamabandis for the year 1984-85, 1996-97, 1976-77, 1991-92 reflects mortgagees to be in possession of the suit land. The presumption of truth is attached to these entries. No evidence has been led by the defendants to rebut the same. The possession was also delivered to the mortgagees. The mutation was attested vide Ex.-P2. The consideration was of Rs. 590/-. Jamabandis for the year 1984-85, 1996-97, 1976-77, 1991-92 reflects mortgagees to be in possession of the suit land. The presumption of truth is attached to these entries. No evidence has been led by the defendants to rebut the same. Defendant Brij Lal has appeared as DW-1. According to him, the mortgage was redeemed. 9. The substantial questions of law Nos. 1 and 2 are no more res integra in view of the judgment rendered by the Full Bench of this Court in Bhandaru Ram (deceased) through his L.R. Rattan Lal Vs. Sukh Ram and Others, AIR 2012 HP 1 . The Full Bench has held as under: 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 Court in Ram Kishan and Others Vs. Sheo Ram and Others, AIR 2008 P&H 77 . To conclude, the Division Bench decision of this Court in Jaimal and Others Vs. State of H.P. and Others, AIR 2010 HP 7 , the un-reported decisions in RSA No. 378 of 2008 titled Shri Parkash Chand and Others Vs. Shri Amar Singh and Another, AIR 2011 HP 21 , and Tula Ram & another v. Shanti RSA No. 271 of 2001, 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 overruled. Reference is answered as follows: The period of limitation for filing a suit for recovery of possession of immovable 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). The Courts below have mis-read the oral as well as documentary evidence brought on record by the plaintiff. Accordingly, in view of the definitive law laid down by the Full Bench of this Court, cited hereinabove, the Regular Second Appeal is allowed. The Courts below have mis-read the oral as well as documentary evidence brought on record by the plaintiff. Accordingly, in view of the definitive law laid down by the Full Bench of this Court, cited hereinabove, the Regular Second Appeal is allowed. The judgment and decree, dated 01.08.2008, passed by the learned District Judge, Hamirpur, H.P. is set aside. The judgment and decree, dated 23.03.2007, passed by the learned Civil Judge (Senior Division), Hamirpur, H.P., whereby the relief qua redemption has been declined to the plaintiff is also set aside. The Civil Suit No. 116/96, RBT No. 32/2007, is decreed in its entirety. The plaintiff and proforma defendant are declared as owners of the suit land comprised in Khata No. 11, Khatauni No. 11, Khasra Nos. 253, 267, measuring 2 Kanals 16 Marlas, Khata No. 16, Khatauni No. 16, Khasra No. 258, measuring 1 Kanal 15 Marlas, Khata No. 20, Khatauni No. 20, Khasra No. 257, measuring 1 Kanal 11 Marlas and Khata No. 22, Khatauni No. 22, Khasra Nos. 254, 256, 268, measuring 3 Kanals 12 Marlas, situated in Tika Deyog, Mouza Mewa, Tehsil Bhoranj, District Hamirpur, H.P. The defendants are prohibited/restrained from interfering with the possession of the plaintiff. The pending application(s), if any, also stands disposed of. No costs.