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2014 DIGILAW 1240 (BOM)

Sampat s/o. Devji v. Reshambi w/o. Sk. Amir

2014-06-12

T.V.NALAWADE

body2014
JUDGMENT : 1. The appeal is filed against judgment and decree of Regular Civil Appeal No. 125/1981, which was pending in the Court of Additional District Judge, Jalna. The First Appellate Court has confirmed the judgment and decree of Regular Civil Suit No. 11/1971, which was pending in the Court of Civil Judge, Junior Division, Bhokardan, District Jalna. The decree of redemption of mortgage is given in favour of respondents. Both the sides are heard. 2. The suit was filed by respondents for redemption of mortgage and for possession of agricultural land bearing Survey No. 99/2 situated at Banegaon, Tahsil Bhokardan, District Jalna. The land admeasuring 13 Acres 35 Guntas was owned by one Shaikh Amir, husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 4. Shaikh Amir died seven years prior to the date of suit. IT Appeal No. is contended that in May 1950 Shaikh Amir had mortgaged the suit land to Sampat, original defendant No. 1, for consideration of Rs. 750/-. It is contended that the possession of land was given to defendant No. 1 and the defendant No. 1 was to recover the mortgage money by cultivating the land for the period of 20 years. It is contended that after expiry of 20 years, the possession of land was to be returned to the owner by Sampat. 3. It is the case of plaintiffs that even after expiry of 21 years, the possession was not returned by Sampat and his heirs and so, the suit was required to be filed. As the suit land was in possession of defendant Nos. 2 and 3, sons of defendant No. 1, they were made party defendants. It is the contention of the plaintiffs that permission of Collector was necessary for execution of possessory mortgage and as Sampat was in money lending business without holding licence for it, the document of mortgage was not created and the document of Ijaranama was created on 26.5.1950. 4. Defendants filed joint written statement. They admitted that Shaikh Amir was owner and plaintiffs are heirs of Shaikh Amir. They, however, denied that there was transaction of mortgage. They also denied that Sampat was doing the money lending business without licence. 5. It is the case of defendants that Shaikh Amir had given land on lease for the period of 20 years under registered document dated 26.5.1950. They, however, denied that there was transaction of mortgage. They also denied that Sampat was doing the money lending business without licence. 5. It is the case of defendants that Shaikh Amir had given land on lease for the period of 20 years under registered document dated 26.5.1950. It is contended that Sampat became protected tenant in view of the provisions of Hydrabad Tenancy Act. It is contended that in the year 1957 Shaikh Amir agreed to sell the suit land to Sampat for the consideration of Rs. 1500/-and after paying entire consideration Isar Pavti was executed in April 1957 in favour of Sampat. It is contended that Sampat had returned original lease document to Shaikh Amir. It is contended that Isar Pavati was produced before the revenue authority in a proceeding and in the same proceeding the ownership was given to Sampat by Shaikh Amir. 6. It is the case of defendants that plaintiffs cannot contend that it was a mortgage document in view of provisions of section 92 of the Evidence Act. It is contended that it was necessary for the plaintiffs to file proceeding under H.A.D.R. Act (Debt Relief Act) and as such the proceeding was not filed, the suit is time barred. It is contended that the suit is not maintainable in view of provisions of Hydrabad Tenancy Act. It is also contended that the suit for possession is also time barred. 7. Issues were framed on the aforesaid pleadings. Both the sides gave evidence. The Trial Court held that it was usufructury mortgage. The Trial Court held that the suit is within limitation. The Trial Court held that defendants have failed to prove that there was the agreement of sale. The Trial Court further held that the defendants are not entitled to protection of possession. The First Appellate Court has confirmed the aforesaid findings. It is held that it was mortgage and has dismissed the appeal. 8. By order dated 25.1.1988 this Court has formulated the substantial question of law. The learned counsel for the appellant was allowed to argue on following points and two more points. (i) Whether the Courts below have committed error in holding that it was a transaction of mortgage and the evidence was otherwise ? (ii) Whether the Courts below have committed error in holding that it was not lease transaction and there was evidence on lease ? (i) Whether the Courts below have committed error in holding that it was a transaction of mortgage and the evidence was otherwise ? (ii) Whether the Courts below have committed error in holding that it was not lease transaction and there was evidence on lease ? (iii) Whether the Courts below ought to have refused the decree of possession due to absence of registration of mortgage transaction ? 9. It was submitted for the appellant that the First Appellate Court has not considered the relevant issues. It was submitted that as such issues were not considered, the judgment of the First Appellate Court needs to be set aside and the matter needs to be remanded back. On this point, reliance was placed on one case reported as 2013 (5) Mh.L.J. 447 [Laxman Ramchandra Shelke and Ors. Vs. Akkubai Tukaram Dambarke]. In this case, the provision of Order 41, Rule 31 of C.P.C. is considered by this Court. The observations made in the reported case are of no help to the present appellant as the relevant points with regard to rival contentions are considered by the First Appellate Court. 10. The learned counsel for the appellant submitted that when the suit was filed for redemption of mortgage, the Courts below ought to have prepared the preliminary decree and in view of Order 34, Rule 7 of C.P.C. the mistake is committed by the Courts below by holding that preliminary decree is not necessary. There is no force in this contention also. In the document itself, it is mentioned that the mortgage money was to be recovered by taking the income of the land by the mortgagee as provided in section 58 (d) of T.P. Act. Thus, nothing was to be given as mortgage money by the mortgagor and there was no necessity of preliminary decree. If the plaintiffs are able to prove that it was mortgage transaction and it was self redeeming mortgage, there was no such necessity. 11. The Trial Court has granted permission to plaintiffs to lead secondary evidence as even after giving notice by plaintiffs to defendants, they did not produce original document which must be ordinarily in their possession. A certified copy of that document was produced and it is proved as Exh. 114 and the transaction is proved in the evidence of witness Shamrao (PW 2). A certified copy of that document was produced and it is proved as Exh. 114 and the transaction is proved in the evidence of witness Shamrao (PW 2). This evidence shows that the transaction was written on stamp paper on 26.5.1950. The contents of document show that for the consideration of Rs. 725/- the land was given in possession of Sampat for the period of 20 years and after expiry of 20 years, no amount was to be paid by the owner, but the possession was to be given by Sampat to the owner. This document was registered and the endorsement on this document shows that the passing of consideration was admitted by the executent. The endorsement further shows that Amir had put thumb impression and witness Shamrao had also put thumb impression. There is evidence of Shamrao on record, which is sufficient to prove the nature of transaction. Widow of Amir has also given similar evidence. Though she has not signed on the document as witness, the Trial Court has believed this lady. In view of the other circumstances, there is no reason to disbelieve the lady. 12. As against the aforesaid contents of the document, defendant Bandu has given evidence that it was Thoka transaction, lease. He has given evidence that subsequently agreement of sale was made by Amir. His evidence shows that he has no personal knowledge regarding the transaction between his father and Amir. No written agreement of sale was produced and there is virtually no evidence of witness in support of the case of agreement of sale. 13. At Exh. 115, there is 7/12 extract for the year 1976- 77 to 1978-79. This document shows that the defendant got the possession as mortgagee and mortgage money was Rs. 750/-. As per the contents of the document, defendant No. 1 was to pay the land revenue. Thus, there is the revenue entry in support of the case of the plaintiffs and the entry must have been made on the basis of the disputed document, Exh. 114. 14. The construction of document is a question of law. On the basis of contents of the document and aforesaid circumstances, both the Courts below have given finding that there was a mortgage transaction. 114. 14. The construction of document is a question of law. On the basis of contents of the document and aforesaid circumstances, both the Courts below have given finding that there was a mortgage transaction. Though the transaction was not described and registered as mortgage transaction, the transaction of Ijaranama, which was registered, is sufficient to prove that after 20 years Sampat was bound to return the possession. 15. The learned counsel for the appellant placed reliance on the case reported as AIR 1935 Rangoon 230 (FULL BENCH) [Ma Kyi Vs. Maung Thon and Anr.] and AIR 1974 SUPREME COURT 689 [Kolathoor Variath and Anr. Vs. Pairaprakottoh Cheriya Kumhahammad Haji]. The learned counsel for the appellant submitted that as mortgage transaction was not registered, suit for redemption of mortgage was not tenable. The observations made by the Apex Court show that when and if the transaction is unregistered, the suit for possession by the owner is tenable on the strength of title. The present suit was also for possession. As nothing was to be paid by plaintiffs to defendants for getting the possession, the Court could have granted relief of possession on the basis of title. Thus, the technical point raised for the appellant cannot come in the way of plaintiffs to get the possession. Both the Courts below have not committed error in deciding the suit in favour of plaintiffs. The aforesaid substantial questions of laws need to be answered against the appellant and they are answered accordingly. 16. In the result, the appeal stands dismissed with no order as to costs.