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2017 DIGILAW 988 (HP)

Puran Dutt v. State of H. P.

2017-08-30

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The plaintiffs instituted a suit against the defendants, claiming therein a declaratory decree by way of foreclosure besides a decree for permanent prohibitory injunction being rendered with respect to the suit property. The suit of the plaintiffs stood decreed by the learned trial Court. In an appeal carried therefrom by the defendant/respondent herein before the learned First Appellate Court, the latter Court allowed the appeal, whereupon, it disconcurred with the verdict recorded by the learned trial Court. In sequel thereto, the plaintiffs/appellants herein are driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that the predecessor-in-interest of the plaintiffs was inducted as mortgagee by the predecessor-in-interest of the defendant, i.e. one Shri Bala Ram, son of Shri Nankoo, on the land comprised in Khasra Nos. 13 and 21, kitas 2, measuring 2.5 bighas, situated in mauja Shalau, Pargana Bagri Khurd, Tehsil Kandaghat, District Solan, H.P. for consideration and mutation Nos.11 and 19 were sanctioned accordingly in Samvat 1964, Baisakh 8. Since then, the predecessor-in-interest of plaintiffs and thereafter the plaintiffs have been coming in possession of the aforesaid land. The aforesaid land was vested in the State of Himachal Pradesh, in the year 1974-75. By that time, the plaintiffs and their predecessors-in-interest had already become owners in possession of the above said land by lapse of 30 years time since the date of mortgage as the predecessor-in-interest of the defendant had failed to get the said land redeemed within the prescribed period but the plaintiffs are shown as mortgagees under the State of Himachal Pradesh. Hence, vestment of the aforesaid land in the State of Himachal Pradesh/defendant itself is wrong, illegal and void. The revenue entires contrary to it and not showing the plaintiffs and their predecessors-in-interest as owners, after 30 years of the mortgage are wrong and illegal. As stated above, the plaintiffs have already become in owners in possession of the suit land by lapse of 30 years' time since the date of mortgage as to no moment of time, mortgage money was paid to the plaintiffs for their predecessors-in-interest. Hence, the defendant is duty bound under the law to get the revenue entries changed and corrected in favour of the plaintiffs and thereby showing the plaintiffs to be owners in possession of the suit land referred to above. 3. Hence, the defendant is duty bound under the law to get the revenue entries changed and corrected in favour of the plaintiffs and thereby showing the plaintiffs to be owners in possession of the suit land referred to above. 3. The defendant contested the suit and filed written statement, wherein, it has taken preliminary objection qua locus standi, estoppel, no cause of action, suit being bad for non joinder of necessary parties and jurisdiction. On merits, the defendant has not disputed that the suit land was in possession of the plaintiffs as mortgagee and Smt. Nazo wife of Shri Ram Saran, was the mortgagor of the suit land. But it is contended by the defendant that on promulgation of H.P. Ceiling of Land Holding Act, 1972, the land held by Smt. Nazo, show in the Ceiling return as surplus and the Collector, Sub Division, Kandaghat, declared the surplus other land as also the suit land and vested it to the State of H.P. vide order dated 13.01.1975. Mutation No.220 of 22.7.1975 was also attested in favour of the State of H.P., the status of the mortgagees remained as it was. The present plaintiffs have failed to file their objections before the Collector, Sub Division, Kandaghat at the time of hearing of the ceiling case and therefore, the suit land has rightly been vested to the State of H.P. The defendant has further pleaded that the plaintiffs are only entitled to receive the mortgaged amount as they are mortgagees under the H.P. Government. 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 have become owners-in-possession of the suit land by efflux of time, as alleged? OPP. 2. Whether the plaintiffs have no locus standi to file and maintain the present suit? OPD 3. Whether the plaintiffs are estopped from filing the suit due to their acts and conduct etc., as alleged? OPD. 4. Whether the plaintiffs have no cause of action to file the present suit? OPD 5. Whether this court has no jurisdiction to entertain and try the present suit, as alleged in para 2 of the preliminary objection? 6. Whether the suit is bad for non joinder of necessary party? OPD. 7. Relief. 5. OPD. 4. Whether the plaintiffs have no cause of action to file the present suit? OPD 5. Whether this court has no jurisdiction to entertain and try the present suit, as alleged in para 2 of the preliminary objection? 6. Whether the suit is bad for non joinder of necessary party? OPD. 7. Relief. 5. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/appellants herein. In an appeal, preferred therefrom by the defendant/respondent herein before the learned First Appellate Court, the latter Court allowed the appeal and reversed 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 18.05.2005, 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 the ld. District Judge was competent to decide the appeal on the basis of facts which were never pleaded by both the parties, if so, to what effect? 2. Whether the appellants/plaintiffs had become owners of the suit land by afflux of time in view of Section 63 of the Indian Limitation Act? 3. Whether the defendant was competent to mutate the land in favour of the State Govt. in view of Himachal Pradesh Ceiling and Land Holding Act, if so to what effect? When the plaintiff had become owners by afflux of time? 4. Whether the previous land owners could surrender the land in the suit to the State Govt. in view of Section 8 of the Ceiling and Land Holding Act, although they were not the owners of the suit land on the date of the Act having become applicable tin 1972, if so to what effect? 5. Whether the defendant/respondent was competent to mutate the land in favour of the State Govt. in view of the specific bar placed by the H.P. Ceiling land Holding Act, 1972, if so what effect? 6. Whether the defendant/respondent can redeem the mortgage after exercising the right of fore closure in view of Section 63 of the Indian Limitation Act, if so, what effect? 7. in view of the specific bar placed by the H.P. Ceiling land Holding Act, 1972, if so what effect? 6. Whether the defendant/respondent can redeem the mortgage after exercising the right of fore closure in view of Section 63 of the Indian Limitation Act, if so, what effect? 7. Whether the order of vesting of the land with the State under the Ceiling Act is without jurisdiction and nonest and if so what effect? 8. Whether the defendant/respondent is bound by the admission contained in the written state, if so what is its effect on the suit? 9. Whether this Hon'ble Court could set aside the judgment and decree of the Ld. Addl. District Judge without there being any appeal or revision filed against the dismissal of the appeal of the defendant/respondent, if so what is its effect? Substantial questions of Law No.1 and 9: 7. Uncontrovertedly, the hitherto owner of the suit property, one, Bala Ram created a mortgage in respect of the suit property upon the predecessor-in-interest of the plaintiffs. Mutation No.19 borne in Ex.PW1/A stood in consonance therewith, hence sanctioned in Samvat 1964, Baishakh 8. However, on coming into force of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 (hereinafter referred to as the Act), the land held by Smt. Nazo, the successor-in-interest of aforesaid Bala Ram, was, thereunder declared to be surplus by the authorities) constituted under the aforesaid Act, sequelling, its, under an order recorded on 13.01.1975 statutory vestment in the State of Himachal Pradesh, whereafter, mutation bearing No.220 of 22.07.1975 was attested vis-a-vis the defendant, yet the status of the predecessor-in-interest of the plaintiffs, as a mortgagee therein remained intact. 8. The vires of the apposite proviso of the Act, holding contemplations therein of land holdings, on, evidently falling in excess of theirs statutorily enjoined limits, thereupon, warranting their statutory vestment in the State of Himachal Pradesh, has, neither been subjected to any challenge nor obviously its mandate has been shown to be declared as ultra vires vis-a-vis the mandate of the Constitution of India. Consequently, the relevant provisions engrafted in the aforesaid legislative enactment, provisions whereof are comprised in Section 11 thereof, provisions whereof stand extracted hereinafter :- “11. Consequently, the relevant provisions engrafted in the aforesaid legislative enactment, provisions whereof are comprised in Section 11 thereof, provisions whereof stand extracted hereinafter :- “11. Vesting of surplus area in the State Government;- The surplus area of the person shall on the date on which possession thereof is taken by or on behalf of the State Government, be deemed to have been acquired by the State Government for a public purpose on payment of amount hereafter provided and all rights, title and interests (including the contingent interest if any, recognized by any law), custom or usage for the time being in force, of all persons in such area shall stand extinguished and such rights, title and interests shall vest in the State Government free from any encumbrance; Provided that where any land within the permissible area of the mortgagor is mortgaged with possession and falls within the surplus area of the mortgagee, only the mortgagee rights shall be deemed to have been acquired by the State Government and the same shall vest in it.” Wherein stands encapsulated, the apposite statutory vestment of tracts of lands of landowners falling in excess of their statutorily permissible land holding limits, does, oust the play of the mandate borne in Section 63 of the Limitation Act, whereunder a suit for foreclosure, is maintainable, at the instance of the mortgagees arising from the mortgagors concerned failing to within the statutorily prescribed time hence redeem the mortgage money vis-a-vis the mortgagee, dehors overriding therewith mandate of the Hon'ble Apex Court comprised in a case reported in (2014) 9 SCC 185 titled as Singh Ram (dead) through legal representatives versus Sheo Ram and others, wherein it stands expostulated qua usufructuary mortgages, the mortgagors being entitled to, within conditions in respect thereof enshrined therein, hence, at any time, beget redemption of the mortgaged lands. The relevant paragraphs No. 21 and 22 of the aforesaid judgment 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. The relevant paragraphs No. 21 and 22 of the aforesaid judgment 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. 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.” 9. The crucial controversy warranting its being rested, is, whether the suit of the plaintiffs, is hence bad for non joinders of the mortgagor or his successors-ininterest. The bestowal of rights of redemption, in the afore referred judgment rendered by the Hon'ble Apex Court, upon a mortgagor, when vests in him an indefeasible right, to, within a reasonable time or at any time hence redeem the mortgage, thereupon, the joining of the mortgagor or his successors-in-interest in the array of parties, was, rendered both imperative as well as peremptory, as her/theirs joining in the array of parties in the extant civil suit, would enable them to bringforth evidence in portrayal of the original mortgagor or his successors-in-interest, redeeming the mortgage money vis-a-vis the initial mortgagee. For want of joining of the initial mortgagor or his successors-in-interest in the array of the parties in the extant civil suit, has, precluded adduction of best evidence in respect of mortgage money being redeemed, thereupon, the suit for foreclosure is rendered defective. For want of joining of the initial mortgagor or his successors-in-interest in the array of the parties in the extant civil suit, has, precluded adduction of best evidence in respect of mortgage money being redeemed, thereupon, the suit for foreclosure is rendered defective. The effect of non joinder of the initial mortgagor or his successors-in-interest, in the array of parties in the extant civil suit, does hence constrain this Court, to, not impute absolute sanctity to the averment/contention, raised by the defendants in their written statement, of, the plaintiffs being mortgagees under the defendant vis-a-vis the suit land, conspicuously when the aforesaid emanations would sprout only upon joining of the initial mortgagor or his successors-in-interest, in the memo of parties, in the extant suit, in sequel whereof, upon the relevant issues being put to trial, best evidence would stand adduced in respect of the mortgaged sums being redeemed, whereas, the non-joining of the mortgagor or of his successors-in- interest, has precluded adduction of the aforesaid best evidence, thereupon, the suit for foreclosure hence warrants dismissal. Consequently, this Court is reluctant to impute sanctity to the contentions raised by the defendants in their written statements, of, the plaintiffs being vis-a-vis the suit land, mortgagees under the mortgagors, especially when it would engender an ensuing impermissible inference of the mortgage vis-a-vis the suit property remaining yet unredeemed, despite, best evidence in respect thereof not surging forth besides when the aforesaid inference would prejudice the rights or subsisting rights, if any, of, the mortgagors in respect of the suit property. 10. Be that as it may, thereupon the statutory vesting, of, the suit property upon the defendant, on anvil of powers exercised under Section 11 of the Act, by the competent authority, provisions, whereof stand extracted hereinabove , is to be concluded to be absolute and free from any encumbrances. 11. 10. Be that as it may, thereupon the statutory vesting, of, the suit property upon the defendant, on anvil of powers exercised under Section 11 of the Act, by the competent authority, provisions, whereof stand extracted hereinabove , is to be concluded to be absolute and free from any encumbrances. 11. As aforestated, the statutory provisions engrafted in Section 11 of the Act do not, purvey any leverage to the plaintiffs/appellants herein to contend, that yet their suit for foreclosure arising from the mortgage money, being, vis-a-vis the initial mortgagee or his successors-in-interest yet unredeemed by the mortgagor or by his successors-in-interest, hence warranting an inference of the relevant mortgage being construable to be yet in force, whereupon the suit for foreclosure is rendered maintainable, rather the aforestated provisions comprised in the aforestated legislative enactment, contrarily, forbid the mortgagee to stake any right, for, a declaratory decree being pronounced by the Civil Courts concerned for foreclosure of the suit property, thereupon any affirmative findings vis-a-vis the aforesaid espousal would beget conflict with the mandate of the apposite provisions appertaining to the vestment, of, surplus lands of landowners in the State of H.P. The successors-in-interest of initial mortgagor Bala Ram, had filed returns in respect of the surplus areas or qua tracts of land falling in excess of their statutory permissible land holding limits, returns whereof stood accepted by the competent authorities, whereupon, an order qua their statutory vestment stood pronounced on 13.1.1975 by the competent authority, in pursuance whereof mutations No. 220 comprised in Ex. Dx, stood attested by the revenue officer concerned, declaratory order whereof recorded by the competent authority (ies) remained unassailed by the mortgagor or his successors-in- interest, whereupon, the aforesaid order acquires conclusive binding force. 12. Dx, stood attested by the revenue officer concerned, declaratory order whereof recorded by the competent authority (ies) remained unassailed by the mortgagor or his successors-in- interest, whereupon, the aforesaid order acquires conclusive binding force. 12. The defendants in their written statement raise a contention that at the stage preceding the recording of the apposite order by the competent statutory authority, whereunder surplus land, of, one Smt. Nazo was ordered to be free from all encumbrances hence stood vested in the State of Himachal Pradesh, the predecessors-ininterest of the plaintiffs, were/was summoned for theirs joining in the apposite proceedings, which culminated in the recording of the apposite impugned order, yet the aforesaid contention raised by the defendant in the written statement in respect of participation of the predecessor-in-interest of the plaintiffs, in the proceedings occurring prior to the recording of the impugned orders, remained uncontroverted, especially when no replication in rebuttal thereof, stood, furnished by the plaintiffs nor also any evidence comprised in the record contemporaneous to the making of the impugned order, stood adduced by the plaintiff, with a display therein of no summons standing issued to the them or qua their predecessor-in-interest, whereunder their respective participations stood elicited in the apposite proceedings which culminated in the recording of the impugned order. Conjunctively, therefrom, it is befitting to conclude that the predecessor-in-interest of the plaintiff, despite service as unrefutedly unveiled in the written statement, neither, participated in the apposite proceedings nor filed any objections qua the vestment of the suit property in the State of H.P. The effect of the predecessor-in-interest of the plaintiffs failing to file objections in the proceedings drawn prior to the recording of the impugned order, fosters an inference that thereat the mortgaged property stood redeemed also it fosters an inference that in case, it, assumingly thereat remained unredeemed, yet, with the litigants concerned failing to within the ambit of the proviso to Section 11 of the Act, lead cogent evidence that even if the suit land fell beyond the permissible statutory limits of his validly holding it, yet his rights as a mortgagee therein warranting preservation. In aftermath, absence on the part of the predecessor-in-interest of the mortgagee or on part of the latter, to, in consonance with the apt provisions of Section 11 of the Act hence project objections, besides his failing to satiate the ingredients encapsulated therein, fillips an inference that he had abandoned his rights, in respect of preservation or keeping intact his interests, as a mortgagee, in the suit land. The apt ensuing sequel therefrom is that it is to be concluded that thereupon also the predecessor-in-interest of the mortgagee besides the latter waived and abandoned his/their rights in the suit property also he/they acquiesced to the mortgaged property being redeemed by the predecessor-in-interest of the mortgagor or the latter, wherefrom, it is to be concluded that the suit for foreclosure instituted by the successors-in- interest of the mortgagee, warrants dismissal. 13. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has not excluded germane and apposite material from consideration. Accordingly, all the substantial questions are answered in favour of the respondent/defendant and against the appellants. 14. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the impugned judgment and decree rendered by the learned Additional District Judge (Presiding Officer Fast Track Court), Solan in Case No. 19FT/13 of 2004/2002 on 1.9.2004 are maintained and affirmed. However, it is made clear that the plaintiffs/appellants shall not be evicted from the suit land except in due course of law. All pending applications also stand disposed of. No order as to costs.