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2017 DIGILAW 1439 (HP)

Biaso Devi v. Sadhu Ram

2017-12-22

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the appellants/defendants, against, the verdict recorded by the learned First Appellate Court, whereby, it reversed the judgment and decree rendered by the learned trial Court, whereby, the latter Court, had, dismissed the suit of the plaintiffs. 2. The facts of the case, in brief, are that the suit land was previously owned by one Amin Chand, which was in his possession, who mortgage the same to the plaintiff for a sum of Rs.400/- and also delivered the possession vide mutation No.217 on 26.11.1963. In the year 1971 Amin Chand sold suit land in favour of Bhagat Ram to the extent of two shares, Rumal Singh to the extent of one share, both sons of Badri, vide mutation No.227 as is clear from the red entry in the remarks column of jamabandi for the year 1970-71. In the year 1981, Bhagto alias Bhagat Ram son of Badri sold Khasra No.283, measuring 14 Kanals 10 Marlas to the extent of 2/3rd share in favour of Gujjar Singh vide mutation No.297 decided on 22.10.1981. Shri Gujjar Singh sold Khasra No.283 to the extent of 2/3rd share in favour of Jahlu Ram s/o Shri Hira and the mutation No.316 regarding this transfer was sanctioned on 25.08.1984 and in this manner the defendants became the mortgagors in place of original mortgagor as would appear from the copy of jamabandi for the year 1975-76 in the remarks column. The suit land was mortgaged with possession as is clear from the copy of the mutation No.217 and jamabandi for the year 1970-71, but without any order or inquiry in the column of cultivation while preparing the jamabandi the revenue staff wrote “khud Kasht” but omitted the word 'Murthin' from the cultivation column and same entry was repeated in the subsequent jamabandies without any legal authority or order o the competent Court. The mortgage is more than 35 years old and the defendants or their predecessor-in-interest did not redeem the same within time and now they have lost their right by limitation and consequently the plaintiff has become owner of the suit land by afflux of time. Hence, the instant suit. 3. The defendants contested the suit of the plaintiff and filed written statement, wherein, they have taken preliminary objections qua maintainability, plaintiff is not in possession of the suit land. Hence, the instant suit. 3. The defendants contested the suit of the plaintiff and filed written statement, wherein, they have taken preliminary objections qua maintainability, plaintiff is not in possession of the suit land. The possession of the suit land is with Hiro, who is in cultivating possession of the suit land. On merits, it is admitted that Amin Chand was original owner of the suit land. It is denied that the suit land was mortgaged with possession to the plaintiff by Amin Chand for Rs.400/-. The alleged mutation is false and is correct. The plaintiff never remained in possession of the suit land as mortgagee. The possession remained with Hiro as tenant, who has become owner in possession of this land, by the enforcement of H.P. Tenancy and Land Reforms Act. 4. The plaintiff filed replication to the written statement of the defendants/appellants herein, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff has become the owner of the suit land by afflux of time, as alleged? OPP. 1-A. Whether the suit is bad for non joinder of necessary party? OPD 2. Whether the plaintiff is entitled for the relief of permanent prohibitory injunction, as prayed for? OPP 3. Whether the suit is not maintainable? OPD. 4. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/respondent herein. In an appeal, preferred therefrom, by, the plaintiff/respondent herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed the findings recorded by the learned trial Court. 7. Now the defendants/appellants herein, have instituted the instant Regular Second Appeal before this Court wherein they assail the findings recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission on 9.9.2013. this Court, admitted the appeal instituted by the defendants/appellants, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. When the appeal came up for admission on 9.9.2013. this Court, admitted the appeal instituted by the defendants/appellants, against, the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the findings of the court below are perverse, based on misreading of oral and documentary evidence, as also, pleadings of the parties and drawing of wrong inferences from the facts proved on record, particularly, the jamabandis P-1 to P-5, mutation No.217, P-6 and statement of Sadhu Ram and DW Hira Lal? 2. Whether in view of the fact that the plaintiff had set up a case of usufructory mortgage in his favour and no time for redemption having been fixed, the suit of the plaintiff was within limitation and the findings of the District Judge reversing the judgment of the trial Court are sustainable in law? 3. Whether the provisions of Section 58(d) as also Section 62 and Chapter IV of the Transfer of Property Act besides Article 61 of the Limitation Act have been misconstrued which has vitiated the findings in holding that the suit was within limitation and the revenue entries were wrong and the relief of permanent prohibitory injunction wrongly granted? 4. Whether the plaintiff had no locus standi to file the suit in view of the fact that Hira Lal was in possession of the property as tenant earlier under the mortgagor and thereafter under the mortgagee-plaintiff had become the owner of the property? Substantial questions of Law No.1 to 4. 8. The relevant record, bears out, an unflinching inference, of, a usufructory mortgage being in existence vis-a-vis the suit khasra numbers. The plaintiff mortgagee, had, after the expiry of more than 30 years, since coming into being, of, a usufructory mortgage vis-avis the suit khasra numbers, hence, instituted a suit, (i) qua, of, with the defendants, not, begetting its redemption within 30 years, thereupon, his being entitled, for, rendition of a declaratory decree, of his being owner of the suit land. The learned first Appellate Court, in reversing, the judgment of the learned trial Court, whereby, the latter Court dismissed the plaintiff's suit, has meted deference, to the principles propounded by the Hon'ble Apex Court in a case titled as Sampuran Singh & Ors. The learned first Appellate Court, in reversing, the judgment of the learned trial Court, whereby, the latter Court dismissed the plaintiff's suit, has meted deference, to the principles propounded by the Hon'ble Apex Court in a case titled as Sampuran Singh & Ors. v. Smt. Niranjan Kaur and others, AIR 1999 SC 1047 and vis-a-vis a judgment rendered by A Full Bench of this Court, in case titled as Bhandaru Ram (deceased) through his L.R. Rattan Lal vs. Sukch Ram & others, AIR 2012 HP 1 . The Hon'ble Full Bench of this Court, while relying, upon the judgments of the Hon'ble Apex Court reported in AIR 1999 SC 1047 and in AIR 2006 SC 1567 , has declared, as under:- “In case no period as such is prescribed in a usufructuary mortgage, the mortgagee is under obligation to put back the mortgagor in possession of the mortgaged property, the moment the mortgage money has been paid back or it has otherwise been settled. If the mortgagee refuses to do so, the only option left to the mortgagor is to institute a Suit for redemption and recovery of possession. Conversely, if the mortgagee wants to institute a Suit for foreclosure, he has to do so within 30 years of the money secured by the mortgage becoming due. It needs no elaborate discussion to hold that as far as a mortgagee is concerned, in the case of usufructuary mortgage which has not fixed any period, the money secured by the mortgage becomes due the moment it has been paid by the mortgagor. As far as the mortgagor is concerned, in the absence of any period fixed in the usufructuary mortgage, he has every right to redeem or recover the possession the moment he executes the deed or the moment parties are in the jural relationship or mortgagor and mortgagee otherwise. On the first principles of Civil law, there is no Civil right establishment of which is not circumscribed or governed by law of limitation. That is the principle behind Section 3, read with Section 27 of the Limitation Act. Section 27 is unambiguously clear that the determination of the period limited to any person for instituting a Suit for possession of any property, his right to such property is extinguished. The said provision is founded on public policy providing for a lifespan for the legal remedy. Section 27 is unambiguously clear that the determination of the period limited to any person for instituting a Suit for possession of any property, his right to such property is extinguished. The said provision is founded on public policy providing for a lifespan for the legal remedy. It is intended to prevent disturbance or deprivation of what has been acquired in equity and justice by long enjoyment or what may have been lost by one’s own inaction, negligence or laches. Thus, in view of the prescription of 30 years, under Article 61 of the Schedule to the Limitation Act, read with Section 60 of the Transfer of Property Act, a mortgagor has to institute a Suit for redemption or recovery of possession within 30 years of the mortgage, since his right to redeem or recover the possession accrues to him the moment the parties are in the jural relationship of mortgagor and mortgagee.” “The expression ‘act of parties’ as appearing in the Proviso to Section 60 of the Transfer of Property Act on the extinguishment of the mortgagor’s right to redeem the mortgage has to be understood in law as the act of inaction on the part of the mortgagor to institute the Suit for redemption of recovery of possession within the prescribed period of 30 years of accrual of the right to redeem or recover the possession.” “For all the above reasons, with great respect, we are unable to be persuaded by the Full Bench Decision of the Punjab and Haryana High Court in Ram Kishan and ors. v. Sheo Ram and ors., AIR 2008 P and H 77. To conclude, the Division Bench decision of this Court in Jaimal and others v. State of H.P. and others., AIR 2010 HP 7 , the un-reported decisions in titled Prakash Chand and others v. Amar Singh and another, RSA No.378 of 2008, and Tula Ram and another v. 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 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).” 9. The aforesaid pronouncement recorded, by the Hon'ble Apex Court, in Sampuran Singh & Ors. v. Smt. Niranjan Kaur and others, AIR 1999 SC 1047 and relied upon by the the Full Bench of this Court, in case titled, as Bhandaru Ram (deceased) through his L.R. Rattan Lal vs. Sukch Ram & others, AIR 2012 HP 1 , was rendered, by a Bench of two Hon'ble Judges, of the Hon'ble Apex Court, apparently, the verdict pronounced, by the learned First Appellate Court falls in tandem, with, the legal expostulations propounded therein, qua (i) upon failure of the mortgagor, to, within 30 years beget redemption, of the suit property, whereon, a usufructuary mortgage, is created, hence, rather empowering the mortgagee, to institute a declaratory suit, claiming, rendition of a declaratory decree, of his, by efflux of time, being declared its owner. However, subsequent thereto, the Hon'ble Apex Court also pronounced a verdict in case titled as Singh Ram (dead) through Legal Representatives v. Sheo Ram and others, (2014)9 SCC 185 , the relevant paragraphs No. 21 and 22 whereof are extracted hereinafter:- “21. We need not multiply reference to other judgments. Reference to above judgments clearly spell out the reasons for conflicting views. In cases where distinction in usufructuary mortgagor’s right under Section 62 of the T.P. Act has been noted, right to redeem has been held to continue till the mortgage money is paid for which there is no time limit while in other cases right to redeem has been held to accrue on the date of mortgage resulting in extinguishment of right of redemption after 30 years. 22. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the T.P. Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. 22. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the T.P. Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly.” Wherein the Hon'ble Apex Court, had, made a firm conclusion, of (a) the special right of a usufructuary mortgagor vested in the latter, under, Section 62 of the Transfer of the Property Act, (b) being in consonance therewith, bestowals of statutory rights in him, especially, (i) qua upon mortgage money being evidently paid out of rents or profits or (ii) evidently partly out of rents or profits or (iii) evidently partly by payments or deposits by the mortgagor, (iv) AND besides a clear explicit mandate exists therein, of, till in the aforestated manners, appropriations ARE evidently made vis-a-vis the mortgage amounts by the mortgagee from, the usufructuary mortgage created upon the suit land, (v) the period of limitation vis-a-vis rights of the mortgagor, to seek redemption of the suit property, rather not commencing. Contrarily, commencements of the apposite period, of limitation vis-a-vis rights of the mortgage or, to, seek redemption, of the mortgaged property, whereon, a usufructuary mortgage, is created, rather, commencing, as aforestated, upon evident aforesaid mandated appropriations, being made by the mortgagee, besides upon payments or deposits being evidently made, of, the mortgage money by the mortgagor vis-a-vis the mortgagee. Apparently, there exists, no, material on record qua the (vi) mortgagee, from, the income of rents or profit, derived by him from the suit khasra numbers, whereon, uncontrovertedly a usufructuary mortgage is in existence, his making appropriations, towards, the mortgage money, nor any evidence, exists, on record in display, of the mortgagor, since, the creation of the usufrutuary mortgage, upon the suit khasra number, upto now, his personally liquidating mortgage money vis-a-vis the mortgagee, by his, making its deposits or payments in the prescribed mode. Consequently, when the aforesaid manner, of discharge of liabilities, by, the mortgagor vis-a-vis, the mortgage money, upon, the mortgagor, has not evidently occurred, (vii) nor when the mandated appropriations vis-a-vis the mortgage money, hence has not been evidently made, by the mortgagee, whereas, the time whereat the mandated discharging of mortgage liabilities by the mortgagor vis-a-vis the mortgagee, is the apt reckonable para meter vis-a-vis the commencements, of, period of limitation, for leveraging a right in him, to, seek redemption of the usufructuary mortgaged suit property. Consequently, dehors proven occurrences, of, the aforesaid apposite appropriations or apposite deposits, the mere elapse or efflux of 30 years, since, the creation, of, a usufructuary mortgage, upon, the suit khasra numbers, would not leverage Courts of law, to, pronounce a declaratory decree, of, the mortgagee hence becoming owner thereof. 10. Be that as it may, the judgment pronounced in Sampuran Singh's case, reported in AIR 1999 SC 1047 , AND relied upon by the learned first Appellate Court, is rendered by two Hon'ble judges of the Hon'ble Apex Court, whereas, the judgment rendered by the Hon'ble Apex Court in Singh Ram's case(supra), is pronounced by a Coram of three Hon'ble judges of the Hon'ble Apex Court, (I) hence, when the Bench strength of Hon'ble judges, which pronounced a decision, in Singh Ram's case (supra), is, higher in numerical strength vis-a-vis the bench strength, of, the Hon'ble judges, of the Hon'ble Apex Court, which pronounced a decision in Sampuran Singh's case (supra). (ii) Thereupon with the aforesaid prior verdict rendered by the Hon'ble Apex Court, in, Sampuran Singh' s case(supra), has also been considered by a Bench, of, three Hon'ble judges of the Hon'ble Apex Court in Singh Ram's case, (iii) thereupon, the verdict rendered by the Hon'ble Apex Court in Singh Ram's Case (supra), holds clout besides sway. Moreover, with the Hon'ble Apex Court also considering in its decision rendered in Singh Ram's case (supra), a prior judgment, of, the Hon'ble Apex Court, reported in a case titled as Prabhakaran & Ors. v. M. Azhagir Pillai (dead) by L.Rs. Moreover, with the Hon'ble Apex Court also considering in its decision rendered in Singh Ram's case (supra), a prior judgment, of, the Hon'ble Apex Court, reported in a case titled as Prabhakaran & Ors. v. M. Azhagir Pillai (dead) by L.Rs. & Ors, AIR 2006 SC 1567 , besides, its, as borne upon a reading, of the judgment of the Hon'ble Apex Court, rendered in Singh Ram's case (supra), of, its overruling, the judgment recorded, by, a Coram of two Hon'ble judges, of the Hon'ble Apex Court, (iv) thereupon, also renders the verdict pronounced by the Hon'ble Apex Court, in, Singh Ram's case (supra), reported in (2014)9 SCC 185 , to, hold the fullest legal might, in resting, the controversy in question qua commencement s, of period of limitation, within, which the mortgagor, has a right to redeem a usufructuary mortgage. 11. Be that as it may, the reliances placed by the learned First Appellate Court, in, case titled as Sampuran Singh & Ors. v. Smt. Niranjan Kaur and others, AIR 1999 SC 1047 and upon a judgment, of, the Full Bench of this Court, rendered in case titled as Bhandaru Ram (deceased) through his L.R. Rattan Lal vs. Sukch Ram & others, AIR 2012 HP 1 , are respectively inapt, given the verdicts aforesaid being over-ruled by the Hon'ble Apex Court, in its decision, rendered in Singh Ram's case (supra), thereupon, the verdict rendered by the learned First Appellate Court, warrants interference AND also its being quashed and set aside. 12. The above discussion, unfolds, of, the conclusion arrived by the learned first Appellate Court being not based, upon, a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court, excluding from consideration germane and apposite material. Accordingly, the substantial question of laws are answered in favour of the appellants and against the respondents. 13. In view of the above discussion, the instant appeal is allowed and the impugned judgment and decree rendered on 1.04.2013 by the learned First Appellate Court in RBT Civil Appeal No. 87-N/11/07 is quashed and set aside. In sequel, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back.