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2017 DIGILAW 549 (HP)

Ravinder Kumar v. Rani Devi

2017-05-18

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed against the concurrently recorded verdicts by the learned Courts below, whereby, they dismissed the suit of the plaintiffs, wherein, they, with respect to the suit land claimed against the defendants relief of declaration along with consequential relief of permanent prohibitory injunction. 2. The brief facts of the case are that the plaintiffs claim that they are in possession of the land measuring 0-24-97 hectare comprised in khata No.42, khatauni No. 47, situated in Mohal Moin, Mauza Gangot, Tehsil Dehra, District Kangra as fully detailed in the head note of the plaint as mortgagees for more than 30 years and has become owners of this land by way of afflux of time. According to them, the suit land was mortgaged with the grand father of the plaintiffs and performa defendants by the husband of the deceased defendant No.1 vide mutation No.2703/2704 dated 14.5.1913 and since then the predecessor-in-interest of the plaintiffs and performa defendants are coming in possession of this land as mortgagees. They are thus mortgagees in possession of the suit land for more than 30 years and as such they have become owners of this land by way of afflux of time. However, defendant No.1 taking undue advantage of the revenue entries existing in her favour is trying and threatening to receive compensation in respect of the suit land acquired by S.D.O. (C)-cum-Land Acquisition Collector, Dehra for construction of Bus Stand without any right, title or interest therein. Hence the suit. 3. Defendant No.1 contested the suit and filed written statement, wherein, she has taken preliminary objection qua maintainability, cause of action, and non joinder of necessary parties. On merits, she has denied if her husband had mortgaged the suit land with the predecessor-in-interest of the plaintiffs and performa defendants. In the alternative she has pleaded that if mortgage is proven the same was usufructuary and the plaintiffs cannot become owners of the suit land. She has, therefore, prayed for dismissal of the suit. 4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs are entitled for declaration, as prayed for? OPP 1-A. Whether the plaintiffs along with proforma defendants have become owners by afflux of time being mortgagees for more than 30 years of the land in dispute, as alleged? On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs are entitled for declaration, as prayed for? OPP 1-A. Whether the plaintiffs along with proforma defendants have become owners by afflux of time being mortgagees for more than 30 years of the land in dispute, as alleged? OPP 1-B. If mortgage is proved, whether the plaintiffs cannot become owners as the mortgage is usufructuary and the plaintiffs and their predecessors have enjoyed the usufruct of the land in more than the amount of mortgage, as alleged? OPD-1 2. Whether the plaintiffs are entitled for the relief of injunction? OPP. 3. Whether the suit is not maintainable in the present form? OPD. 4. Whether the plaintiffs are estopped by their acts and conduct? OPD 5. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the plaintiffs/appellants before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 6. Now the plaintiffs/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 16.05.2008, this Court, admitted the appeal instituted by the plaintiffs/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether courts below mis-read and mis appreciated the provisions of H.P. Debut Reduction Act, 1976, thereby non suiting the plaintiffs, as such, vitiated the impugned judgment and decrees? 2. Whether courts below mis-read and mis-appreciated Section 27 of the Limitation Act and contrary findings returned by the Courts below in law being unsustainable are liable to be quashed and set aside? 3. Whether the impugned judgments and decrees being contrary to the provisions of Order 20, Rule 5 of the Code of Civil Procedure stand vitiated and liable to be quashed and set aside? Substantial questions of Law No.1 and 2: 7. Under mutation No.2703/2704 of 14.05.1913, a usufructuary mortgage with respect to the suit property was created by the predecessor-in-interest of defendant No.1, upon the predecessor-in-interest of the plaintiffs and performa defendants. Substantial questions of Law No.1 and 2: 7. Under mutation No.2703/2704 of 14.05.1913, a usufructuary mortgage with respect to the suit property was created by the predecessor-in-interest of defendant No.1, upon the predecessor-in-interest of the plaintiffs and performa defendants. Since, the mortgagor or his predecessors-in-interest within 30 years elapsing since 14.05.1913, hence, failed to redeem the suit land, thereupon, the plaintiffs and performa defendants were constrained to espouse a claim qua theirs by efflux of time becoming owners of the suit property. Consequently, on score aforesaid an apposite declaratory decree, with respect to the suit property, was claimed by the plaintiffs and the performa defendants. However, defendant No.1, in his pleadings, constituted a defence that with the mortgage created with respect to the suit property falling within the ambit of “usufructuary mortgage”, whereupon, the mandate of Section 62 of the Transfer of Property Act (hereafter referred to as the Act), provisions whereof stand extracted hereinafter, visibly operate also with the provisions embodied therein clothing the mortgagor with a right to redeem the mortgaged property, on his begetting compliance with the mandate of clauses (a) and (b) of Section 62 of the Act. Consequently, the counsel for the contesting defendant No.1, espouses that when no forthright best evidence surges forth in display, of satiation of the mandate of clause (b) of Section 62 of the Act, hence, the mandate of clause (a) thereto holds sway. In sequel, it is espoused that when the substantive provisions of Section 62 of the Act, foist a right in the mortgagor to redeem the mortgaged property, on his meteing compliance either with the mandate of clause (a) or with the mandate of clause (b) of Section 62 of the Act, whereas, hence with evidence with respect to satiation of the mandate of clause (b) remaining unadduced, hence, the mandate of clause (a) operating, wherein, the mortgagor is vested with a right to redeem the mortgaged property, as and when the mortgaged amount is paid by him to the mortgagee. Provision of Section 62 of the Act read as under: “62. Provision of Section 62 of the Act read as under: “62. Right of usufructuary mortgagor to recover possession.- In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee- (a) where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, - when such money is paid; (b) where the mortgagee is authorized to pay himself from such rents and profits or any part thereof a part only of the mortgage money, when the term (if any) prescribed for the payment of the mortgage money has expired and the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof or deposits it in court hereinafter provided.” In aftermath, the learned counsel for the contesting defendant urges that the right to redeem the mortgage property continuing uptill the mortgage amount is paid to the mortgagee. Also the accrual of cause of action for redeeming the suit property commencing from the day of making payment of the mortgage money by the mortgagor to the mortgagee, in respect of liquidation whereof, no specific time is prescribed. Therefore, he contends that the mortgagor has a right to at any time liquidate the mortgage money. The aforesaid contention canvassed by the counsel for the contesting defendant, is anvilled upon a judgment of the Hon'ble Apex Court reported in (2014)9 SCC 185 titled as Singh Ram (dead) through legal representatives versus Sheo Ram and others, the relevant paragraphs No. 21 and 22 whereof stand extracted hereinafter:- “21. We need not multiply reference to the other judgment. Reference to the above judgments clearly spell out the reasons for conflicting views. In cases where distinction is usufructuary mortgagor's right under Section 62 of the TP 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 the right of redemption after 30 years. 22. 22. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the TP 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 the mortgagor. Until then, limitation does not start for the 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.” (p.210) 8. Before proceeding to apply the mandate of the Hon'ble Apex Court held in Singh Ram's case (supra), it is imperative to determine, the crucial factum probandum, appertaining to the genre of the mortgage created with respect to the suit property. In resting the aforesaid fact, want of a specific denial by the contesting defendant, with respect to creation of mortgage with respect to the suit property, under mutation No. 2703/2704 of 14.05.1913, fosters inference that the contesting defendant hence admitting the validity of mutation No. 2703/2704, whereunder a mortgage with respect to the suit property was created by the predecessor-in-interest of the contesting defendant upon the predecessor-in-interest of the plaintiffs and performa defendants. The further fact of the plaintiffs and the performa defendants holding possession of the suit property, is rested, by an affirmative suggestion put to PW-1 by the learned counsel for the contesting defendant while his holding him to cross-examination, wherein, an echoing is held of the suit land being mortgaged with possession in the year 1912 by Ganga Dass with Sohan, suggestion whereof evinced a reply in the affirmative. Consequently, the putting of the aforesaid affirmative suggestion to PW-1 by the counsel for the defendant while holding him to cross-examination and its evincing from him an apposite affirmative response thereto, tantamounts to his acquiescencing qua the mortgagee concerned holding possession of the suit property, from the date of the recording of mutation Nos. 2703/2704, besides with Ex. P-1 to P-5 making a display of the mortgagee concerned holding possession of the suit properly, displays whereof occurring wherein when remain undislodged by adduction of potent evidence, hence, the relevant reflections therein with respect to the mortgagees concerned holding possession of the mortgaged property, hence, acquire conclusivity. 2703/2704, besides with Ex. P-1 to P-5 making a display of the mortgagee concerned holding possession of the suit properly, displays whereof occurring wherein when remain undislodged by adduction of potent evidence, hence, the relevant reflections therein with respect to the mortgagees concerned holding possession of the mortgaged property, hence, acquire conclusivity. In aftermath, it has to be inevitably concluded, that the relevant mortgage created with respect to the suit property falling within genre of usufuctuary mortgage. Consequently, the mandate of Section 62 of the Transfer of Property Act hence operated, thereon, also the mandate of the Hon'ble Apex Court held in Singh Ram's case (supra), wherein, the relevant paragraphs unequivocally make a forthright pronouncement, that the mortgagee merely on elapse of 30 years from the date of creation of mortgage in his favour by the mortgagor, yet not holding any right to file a suit against the mortgagor, claiming therein that he has by efflux of time become owner of the mortgaged property rather the mortgagor holding a right to redeem the mortgaged property, on his meteing compliance with the provisions embodied either in clause (a) or in clause (b) of Section 62 of the Act. Consequently, it is concluded that the mandate of clause (a) of Section 62 of the Act, is attracted vis-a-vis the facts of the case at hand, hence, with the mortgagor holding a right to redeem the mortgaged property, on his defraying the mortgaged amount to the mortgagee, in respect of defrayment whereof “no” period is prescribed, leading hence to an inference that the mortgagor within the ambit of clause (a) of Section 62 of the Act holding a right to “any time” liquidate the mortgage money vis-a-vis the mortgagee. Consequently, as and when such liquidation occurs, therefrom, the apposite period of limitation commencing or the cause of action accruing vis-a-vis the mortgagor for his therefrom instituting a suit for begetting redemption of the mortgaged property. 9. The learned counsel appearing for the plaintiffs/appellant has contended that the aforesaid ratio decidendi propounded by the Hon'ble Apex Court in Singh Ram's case (supra) does not apply to the facts of the case at hand. However, he is unable to adduce on record any demonstrable material for leveraging his contention, hence, his contention is rejected. 10. 9. The learned counsel appearing for the plaintiffs/appellant has contended that the aforesaid ratio decidendi propounded by the Hon'ble Apex Court in Singh Ram's case (supra) does not apply to the facts of the case at hand. However, he is unable to adduce on record any demonstrable material for leveraging his contention, hence, his contention is rejected. 10. Be that as it may, the suit of the plaintiffs stood instituted in the year 1991 whereat the mandate of the provisions of H.P. Debt Reduction Act came into force. With the statutory provisions held in the H.P. Debt Reduction Act, leveraging a fresh cause of action vis-a-vis the mortgagor for his hence seeking redemption of the mortgaged property, besides the availment by him of the statutory right created thereunder being comprised in his instituting an application or his filing a civil suit after coming into force of the H.P. Debt Reduction Act. Moreover, with the mandate of the aforesaid legislative enactment, standing declared to be holding, an overriding effect on any other law also upon the provisions of Section 27 of the Limitation Act, in sequel, with attraction vis-a-vis the suit of the plaintiffs, the mandate of the aforesaid legislative enactment, thereupon, hence, with therein, the diktat of the provisions of Section 27 of the Limitation Act stand excluded, begets an inference, that for facilitating the underlying purpose of the aforesaid legislative enactment, comprised in its foisting, a right in the mortgagor to beget redemption of the mortgaged property “at any time”, hence also begetting a further corollary, that the apposite legislative enactment granting a fresh opportunity to the mortgagor to redeem the suit property. Consequently, within its ambit, it is open to the contesting defendant to at any time avail of the remedies prescribed thereunder vis-a-vis her. In sequel for facilitating the contesting defendant to avail the aforesaid remedy it would not be befitting to decree the suit of the plaintiffs. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law No.1 and 2 are answered in favour of the respondent/contesting defendant and against the appellants. However, substantial question of law No.3 is not pressed by the learned counsel appearing for the appellants for any order being recorded thereon, hence, is answered as not pressed. 12. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgments and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs.