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2017 DIGILAW 797 (RAJ)

Mohan Lal S/o Champa Lal v. Mohan Lal S/o Raghunath Lohar

2017-03-23

DINESH MEHTA

body2017
JUDGMENT Dinesh Mehta, J. - By way of the present Writ Petition, petitioner has challenged the order dated 20.07.2016 in Regular Civil Case No.52/2011 passed by the Senior Civil Judge No.6, Jodhpur Metropolitan, Jodhpur (hereinafter referred s ''the Trial Court'') whereby the application filed by the petitioners-defendants under Order 14, Rule 5 of the Code of Civil Procedure, 1908 (hereinafter referred as ''the CPC'') has been partially allowed. 2. The skeleton facts required for deciding the issue involved in the present Writ Petition are that Respondents-Plaintiffs filed a suit for redemption of mortgage/recovery of possession in relation to a property situated at Khandafalsa, Ada Bazar, Jodhpur. It was stated in the plaint that the property in question was mortgaged on 24.01.1950 for a sum of Rs. 6,000/-, by father of the plaintiff and the possession thereof, was handed over to the mortgagee. It was also agreed between the parties that no rent for the property would be paid, while the amount of Rs. 6,000/- would not bear any interest. 3. After death of the mortgagor Rughnath, his son, the plaintiff offered the amount and requested to hand over the possession on 30.09.2002. The defendants refused to hand over the same, showing such denial, to be a cause of action, a suit came to be filed by the plaintiff claiming the mortgage to be usufructuary. 4. In response to the said suit, a written statement was filed by the defendants, wherein the mortgage was feebly stated to be anomalous instead of usufructuary and the suit was stated to be time barred. The factum of the mortgage was not disputed, albit the amount of mortgage was claimed to be Rs. 7,500/- instead of Rs. 6,000/- stated by the plaintiff. 5. During the course of proceedings in the suit, defendants filed an application under Order 7, Rule 11 of the Code of Civil Procedure, 1908 contending that the suit was barred by law of limitation, as the same was filed for redemption of mortgage/recovery of possession after 52 years, whereas the limitation for filing the same was 30 years only. 6. The said application came to be rejected by the Trial Court, vide its order dated 22.09.2005, which was challenged by the defendant by way of filing a Revision Petition being S.B. Civil Revision Petition No.514/2005. 6. The said application came to be rejected by the Trial Court, vide its order dated 22.09.2005, which was challenged by the defendant by way of filing a Revision Petition being S.B. Civil Revision Petition No.514/2005. The said Revision Petition was allowed by this Court vide its order dated 25.07.2013 and the plaint was rejected. 7. During the course of argument of the Revision Petition aforesaid, both the parties including defendants, asserted rather accepted the mortgage to be usufructuary. This Court while allowing the Revision Petition filed by the defendants, has not only relied upon the stand of the parties, but has also recorded a categorical finding that the mortgage in question was usufructuary mortgage, while holding that limitation for filing a suit for redemption of the mortgage/recovery of possession of a usufructuary mortgage is 30 years from the date of execution of the mortgage. It will be apt to reproduce the relevant portion of the judgment of this Court dated 25.07.2013:- "The learned counsel for the respondent-plaintiff vehemently opposed the submitted made by learned counsel for the petitioners. It was submitted that the learned trial court has rightly dismissed the application and the suit cannot be said to be barred by limitation. With reference to section 62 of the Transfer of Property Act, it was submitted that right of usufructury mortgagor to recover possession accrues, where the mortgagee is authorized to pay himself the mortgage money from the rents and profits of the property, when such money is paid and where the mortgagee is authorized to pay himself from such rents and profits, when the terms, 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. It was submitted that in terms of the mortgage deed, the mortgagee was required to adjust the amount of rent, if the property was let out, towards the mortgage money and that in the rejoinder filed to the written statement a specific prayer for account in this regard has been made and till such time, the said aspect is clarified by way of evidence, it cannot be said that the suit is barred by limitation." 8. The Court had not merely relied upon the assertion/arguments of the petitioners, but had also examined the recital of the mortgage deed vis-a-vis provisions of section 58(d), 60 and 62 of the Transfer of Property Act, 1882 and held that mortgage in question was usufructuary mortgage. It will be worthwhile to reproduce the finding given by this Court in its order dated 25.07.2013, in relation to the nature of mortgage:- "A bare reading of the above provisions would reveal that Section 58(d) defines usufructuary mortgage and the terms of the mortgage deed apparently answers the above definition; Section 60 provides that at any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee to deliver the documents, possession etc. provided that the right conferred by the said Section has not been extinguished by act of the parties or by decree of a Court; Section 62 deals with the specific right of the usufructuary mortgagor to recover the possession on the events indicated therein." 9. Having held that the mortgage in question was usufructuary mortgage, the Court has held that the limitation for filing the suit for redemption of mortgage/recovery of possession is 30 years from the date of execution of the mortgage deed in following terms:- "As far as a mortgagee is concerned, in case of a usufructuary mortgage, which does not fix any period, the money secured by the mortgage becomes due the moment it has been paid to the mortgagor. So 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 recover the possession the moment parties are in the jural relationship of mortgagor and mortgagee. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. It is well established that there is no civil right which is not circumscribed or governed by law of limitation, which aspect is well established by provisions of Section 3 and Section 27 of the Limitation Act. Therefore, in view of the prescription of 30 years, under Article 61 of 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 jural relationship of mortgagor and mortgagee." 10. It is pertinent to note that while coming to aforesaid conclusion about the limitation, this Court had placed reliance upon two judgments of the Supreme Court rendered in the case of in Sampuran Singh & Ors. vs. Niranjan Kumar (Smt.) & Ors. : (1999) 2 SCC 679 , Prabhakaran & Ors. vs. M. Azhagiri Pilai (Dead) By LRs. & Ors. : (2006) 4 SCC 484 . 11. Feeling aggrieved with the aforesaid judgment dated 25.07.2013, Mohan Lal-plaintiff approached the Supreme Court by way of filing Civil Appeal No.788-789/2016 arising out of SLP No.31469-31470/2014, which has been allowed by the Supreme Court vide its order dated 29.01.2016. Hon''ble the Supreme Court has allowed the Appeal in view of the subsequent change viz judgments of Sampuran Singh (Supra) & Prabhakaran (Supra), on which this Court had relied, had been held, to be no more good law, in subsequent judgment in Singh Ram vs. Sheo Ram & Ors. reported in 2014 (9) SCC 185 . While allowing the Appeal vide its judgmnt dated 29.01.2016, the Hon''ble Supreme Court has held as under:- "3. On the question of limitation on redemption of usufructuary mortgage, the High Court has placed reliance on Sampuran Singh & Others vs. Niranjan Kaur & Others reported (1999) 2 SCC 679 and Prabhakaran & Others vs. M. Azhagiri Pillai reported in (2006) 4 SCC 484 . The position taken by the High Court in those decisions has been held to be no more good law in Singh Ram vs. Sheo Ram and Others reported in (2014) 9 SCC 185 wherein it has been held that the starting point of limitation for redemption of usufructuary mortgage should run from the date the mortgage money is paid or is otherwise satisfied. 4. 4. In that view of the matter, the impugned judgments of the High Court are set aside. The matters are remitted to the Trial Court. The suit shall be tried on all issues raised for trial. Being a suit of the year 2004, we request the Trial Court to dispose of the suit within six months from the date of next appearance of the parties. The parties shall appear before the Trial Court on 4th April, 2016. 5. The appeals are allowed as above with no order as to costs." 12. Having travelled up to the Supreme Court, the matter has come back in the dockets of Trial Court for decision, as directed by the Supreme Court. 13. The Trial Court had framed the following issues in the matter:- 14. After framing of the issues, the Defendants-Petitioners filed an application under Order 14, Rule 5 of the CPC inter alia indicating that the issue No.1 to the extent it requires determination of interest, deserves to be deleted; and that the mortgage in question was anomalous mortgage and not usufructuary mortgage; and issue of limitation be framed. 15. The said application came to be partly allowed by the Court vide its order dated 20.01.2016, vide which the issue No.1 to the extent it related to adjudication of interest in the form of words came to be deleted. While doing this exercise, the Trial Court suo-motu deleted Issue No.3, relating to nature of the mortgage. For the ready reference, it will be apt to reproduce the operative portion of the order under consideration:- 16. Mr. J.L. Purohit Senior Counsel and Mr. Rajeev Purohit appearing on behalf of the Petitioner contended that the order under challenge passed by the Trial Court is illegal and contrary to the facts and law, involved in the present case. Mr. Purohit, while taking the Court through the written statement contended that it was the specific stance of the defendants-petitioners that the mortgage in question was anomalous and hence the Trial Court has committed an error in deleting the issue No.3, in light of the judgment dated 29.01.2016, passed by the Supreme Court. He further contended that High Court had not given any finding about the nature of the mortgage and as such, the issue regarding nature of the mortgage was/is still open and needs to be decided. 17. Mr. He further contended that High Court had not given any finding about the nature of the mortgage and as such, the issue regarding nature of the mortgage was/is still open and needs to be decided. 17. Mr. Purohit''s another argument has been that the Trial Court has erred in rejecting petitioners'' application, as regards framing the issues of limitation. He submitted that firstly, the mortgage in question was anomalous and even if, the same is held to be usufructary mortgage, the issue of limitation was wide open, inasmuch as the High Court having recorded a finding that the mortgage in question was usufructuary, held that the limitation for filing a suit for redemption of mortgage/recovery of possession is 30 years from the date of execution of mortgage deed. 18. He thereafter contended that the learned Trial Court has erred in fixing the burden of issue No.1 upon the defendants and asking the defendants-petitioners to lead their evidence first. 19. According to Mr. Purohit reliance on section 102 of the Indian Evidence Act, 1872 (hereinafter referred as ''the Act of 1872'') by the Trial Court was misplaced and neither the burden of issue No.1 could be placed upon the petitioners-defendants nor they could be called upon to lead their evidence before the plaintiffs. 20. As regards issue of limitation, Mr. Purohit pointed out that the Defendant had raised specific objection regarding maintainability of the suit in the written statement besides asserting that the mortgage in question was anomalous mortgage and not usufructuary mortgage. This Court deems it necessary to reproduce the relevant portion of the written statement filed by the defendants-petitioners which reads as under:- 21. While reading the judgment of the Supreme Court dated 29.01.2016, Mr. Purohit emphasised that the Hon''ble Supreme Court has remitted the matter to the learned Trial Court with a direction that the suit shall be tried on all issues raised for trial, as such, the issue of limitation which was very much raised by the defendants-petitioners, was required to be decided by the Trial Court. 22. Mr. H.R. Soni, learned counsel for the respondents-plaintiffs submitted that it is absolutely wrong to state that the High Court had not given any finding regarding the nature of the mortgage. While reading Para No.5 and 9 of the judgment dated 25.07.2013 of the High Court. Mr. Soni expressed his surprise and concern about the stand of the petitioner. 22. Mr. H.R. Soni, learned counsel for the respondents-plaintiffs submitted that it is absolutely wrong to state that the High Court had not given any finding regarding the nature of the mortgage. While reading Para No.5 and 9 of the judgment dated 25.07.2013 of the High Court. Mr. Soni expressed his surprise and concern about the stand of the petitioner. To substantiate his arguments. Mr. Soni pointed that there is not even a whisper about the nature of the mortgage in the memo of Revision Petition filed by the petitioners-defendants. He also submitted that during the entire line of arguments before this Court, it had been a specific case of the petitioners that the mortgage in question was usufructuary mortgage. Mr. Soni added that even before the Supreme Court, the petitioners maintained their stand that the mortgage in question was usufructuary. After pointing out these facts, which according to him were glaring, Mr. Soni submitted that the Petitioner had stuck to their stand that the mortgage in question was usufructuary, however, when the Supreme Court has reversed the judgment of this Court, they are trying to alter their stand in a bid to complicate the same. In short his contention has been that the petitioners are estopped from taking a stand contrary to the one they had consistently taken or maintained. 23. Coming to the issue of limitation, Mr. Soni contended that the issue of limitation has remained no more res-integra, as the High Court''s judgment dated 25.07.2013, holding the suit barred by limitation has been reversed by the Supreme Court, vide its judgment dated 29.01.2016. He added that the issue which had been decided by the High Court and the Supreme Court cannot be left to be decided again by the Trial Court. Counsel for the respondents, in light of these submissions, concluded that the and hence the learned Trial Court has committed no error of law in refusing the petitioners'' request to frame issue regarding limitation. 24. Coming to the argument of Mr. Purohit regarding issue No.1, more particularly the burden thereof, which has been fixed upon the defendant-petitioner, Mr. Soni submitted that learned Trial Court has rightly relied upon the provisions of Section 102 of the Act of 1872. He contended that there was no dispute between the parties as far as execution of the mortgage deed was concerned. Purohit regarding issue No.1, more particularly the burden thereof, which has been fixed upon the defendant-petitioner, Mr. Soni submitted that learned Trial Court has rightly relied upon the provisions of Section 102 of the Act of 1872. He contended that there was no dispute between the parties as far as execution of the mortgage deed was concerned. The only point of dispute between the parties was as to whether the amount advanced was Rs. 6,000/- or Rs. 7,500/-. Counsel for the respondents pointed out that as per plaintiffs it was Rs. 6,000/-, while defendant''s case was that it was Rs. 7,500/- and as such, the Trial Court had framed the issue No.1 in the following manner:- 25. In addition thereto, he invited attention of this Court towards another application under Order 14, Rule 5 CPC filed by the petitioners, wherein they had not raised any objection or shown concern towards the burden of the issue No.1, which has been placed upon the defendants. With the help of these arguments, Mr. Soni submitted that the learned Trial Court has committed no error in the passing of the order under consideration. I have considered the arguments of the counsel for the parties and perused the material available on record. 26. Dealing with the first argument of Mr. Purohit first, that the High Court has not given any finding about the nature of mortgage, suffice it to say that such submission is not only untenable, but also factually incorrect. 27. A bare reading of the order dated 25.07.2013 passed by this Court makes it explicit, that it was not only a finding of the High Court, but a common consensus between the parties that the mortgage in question was a ''usufructuary'' mortgage. Relevant part of the order of the High court as reproduced herein above makes it crystal clear that the High Court had given a categoric finding that the mortgage in question was a ''usufructuary'' mortgage. Besides this, parties have taken their dispute right up to the Supreme Court and even before the Supreme Court also, it was nobody''s case that the mortgage in question was not usufructuary mortgage. 28. The petitioners-defendants are firstly acquiesced from the stand taken by them before the High Court and before the Supreme Court and if not, they are at least bound by the findings recorded by the High Court as affirmed by the Supreme Court. 28. The petitioners-defendants are firstly acquiesced from the stand taken by them before the High Court and before the Supreme Court and if not, they are at least bound by the findings recorded by the High Court as affirmed by the Supreme Court. As a result of the judgment of this Court and the judgment of the Supreme Court, nature of the mortgage has been held to be usufructuary. It does not lie in the mouth of the petitioners, to take a somersault and cling to an entirely different stance, having lost their battle from the Supreme Court. The petitioners'' attempt to claim that the mortgage in question was an ''anomalous'', based on their written statement, is an effort in distress, which cannot be countenanced by this Court, particularly when the matter has been adjudicated and attained finality right upto the Apex Court. 29. The second argument of Mr. Purohit that learned Trial Court has erred in placing the burden of proving the issue No.1 upon defendants, is equally fallacious. The issue No.1 as framed proceeds on the admission of both the parties about existence of mortgage. The only bone of contention between the parties was the amount of mortgage money; which according to the plaintiff it was Rs. 6,000/- whereas the defendants stated it to be Rs. 7,500/-. In wake of such stand, particularly when the factum of mortgage had been admitted, the only question to be determined was as to whether the amount of mortgage was Rs. 6,000/- or Rs. 7,500/-. 30. To examine the argument of Mr. Purohit, provisions of Section 102 of the Act of 1872 are reproduced hereunder:- Section 102 the Indian Evidence Act, 1872 102. On whom burden of proof lies. -The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations: (a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B''s father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A. (b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B. 31. A perusal of the provisions contained in Section 102 of the Act of 1872 reveals that the Court is required to place the burden of proof while keeping in mind, that if no evidence at all were led from either side, which party would fail. Purposive interpretation of the provision contained in Section 102 of the Act of 1872 read with the illustrations given thereunder, leaves no room for ambiguity or doubt that in the facts of the present case, since the factum of mortgage is admitted, and if no evidence is led, the party claiming mortgage amount to be Rs. 7,500/- would fail and the Court will naturally hold the mortgage money to be Rs. 6,000/- and not Rs. 7,500/-. 32. In other words if the defendants fail in its attempt to prove that the mortgage money was Rs. 7,500 as a natural corollary the mortgage money would be held to be Rs. 6,000/-. 33. If the facts of the present case are tested on the anvil of the above interpretation of Section 102 of the Act of 1872, this Court is of the considered opinion that the burden of proving issue No.1 will be on defendants, who have asserted that the mortgage money was Rs. 7,500/-. As such, the Court below has committed no error of law in fixing the burden to prove issue No.1, upon the defendants. 34. Now adverting to the last limb of argument of Mr. Purohit which relates to framing of issue of limitation, this Court concurs with the contentions of Mr. Purohit that the issue of limitation as proposed by the defendants was required to be framed, for the following reasons. 35. 34. Now adverting to the last limb of argument of Mr. Purohit which relates to framing of issue of limitation, this Court concurs with the contentions of Mr. Purohit that the issue of limitation as proposed by the defendants was required to be framed, for the following reasons. 35. A reading of the judgment of this Court dated 25.07.2013 shows that the High Court had firstly gave a finding that the mortgage in question was usufrcutuary mortgage and then held that the mortgagor has to institute a suit for redemption/recovery of possession within 30 years of the mortgage, as their right to redeem/recovery the possession accrues to them, from the moment, the parties are in jural relationship as mortgagee and mortgagor. In other words, this Court had given a finding that the terminus quo or the starting point for calculating the period of limitation, is the date, when the mortgage is created. 36. It is true that this Court had drawn support from the two judgments of the Supreme Court in the matter of Sampuran Singh (Supra) and Prabhakaran (Supra), which Judgments have been held to be not good law, by the Supreme Court in its subsequent judgment of Singh Ram (Supra), however a careful reading of the judgment of the Supreme Court in Singh Ram (Supra) reveals that the Supreme Court has not only held the earlier judgments to be not good law, but also held that the limitation for instituting the suit would start from the date when the mortgagor makes a payment of the mortgage money or when the amount of mortgage is fully paid. 37. In this view of the legal position, the issue as to from which date, the limitation would start running is yet to be decided, inasmuch as the parties will have to lead evidence about the date and fate regarding payment of mortgage money or recovery of the amount advanced. 38. On perusal of the judgment dated 29.01.2016 passed by the Supreme Court, this Court finds that the Supreme Court has remitted the matter to the Trial Court, while setting aside the Judgment of this Court, with a clear stipulation that "the suit shall be tried on all issues raised for trial". 38. On perusal of the judgment dated 29.01.2016 passed by the Supreme Court, this Court finds that the Supreme Court has remitted the matter to the Trial Court, while setting aside the Judgment of this Court, with a clear stipulation that "the suit shall be tried on all issues raised for trial". One must bear in mind that the order impugned before the Supreme Court was; the order of this Court dated 25.07.2013 whereby this Court had rejected the plaint filed by the plaintiff, pursuant to an application filed by the defendants under order VII Rule 11 (d) of the CpC. 39. Had the case been so simple, and the Supreme Court was of the view that issue of limitation was not required to be gone into, the Supreme Court would have simply restored the matter to the Trial Court, as the High Court had rejected the plaint. Use of word "remitted" in the present case has its own significance and ramification, which in respectful opinion of this Court indicates that the Supreme Court had set aside the judgment of this Court, holding the suit in question to be barred by limitation, counting the limitation from the date of creating mortgage. 40. The remand with the above direction was necessitated perhaps because the earlier view of the Supreme Court holding that in case of usufructuary mortgage, limitation of 30 years would be counted from the date of mortgage, had been overturned and as a natural corollary, the starting point of limitation again became an issue to be examined and decided in accordance with pleadings and in light of the evidence of the parties. 41. A perusal of the plaint shows that the plaintiff has stated that the cause of action accrued to them on 30.09.2002, when they offered the mortgage money, with a request to hand over the possession. As such, the date from which the limitation shall start to run, based on the pleadings and evidence, is a question to be gone into by the Court. 42. In view of the above discussion, this Court finds that the issue of limitation was required to be framed and decided in the present case and the learned Trial Court has erred in rejecting the petitioners application under consideration qua framing of the issue of limitation. 43. 42. In view of the above discussion, this Court finds that the issue of limitation was required to be framed and decided in the present case and the learned Trial Court has erred in rejecting the petitioners application under consideration qua framing of the issue of limitation. 43. The off-shoot of the above discussion is that the writ petition filed by the petitioners-defendants is partly allowed, the order dated 20.07.2016 passed by the learned Trial Court is quashed and set aside to the extent of rejection of the prayer for framing issue regarding limitation, however, the order under consideration is affirmed, to the extent of deletion of issue No.3, relating to nature of mortgage, and fixing the burden of proving the issue No.1, upon the plaintiff. 44. The Trial Court is directed to frame issue of limitation in light of the above discussion and proceed with the matter in accordance with law.