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2018 DIGILAW 408 (HP)

Devki v. Kamle Ram

2018-03-20

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellant, who was one of the plaintiffs before the learned Trial Court (hereinafter referred to “the plaintiff”), laying challenge to the judgment and decree, dated 18.07.2006, passed by the learned Additional District Judge, Fast Track Court, Kullu, District Kullu, H.P., in Civil Appeal No. 39 of 2005, whereby the appeal filed by the plaintiff against the judgment and decree, dated 17.05.2005, passed by the learned Civil Judge (Junior Division), Manali, Camp at Kullu, District Kullu, H.P., was dismissed upholding the findings of the learned Trial Court, whereby Civil Suit No. 108 of 2004/70 of 2004 was dismissed. 2. The key facts of the case can tersely be summarized as under: The present case appellant, being plaintiff, alongwith other plaintiffs, has been shown in ownership of land bearing Khasras No. 608, 111 and 1133, measuring 2-3-0 bighas, situated in Phati Balh, Kothi Maharaja, Tehsil and District Kullu (hereinafter referred to as “the suit land”) to the extent of half share, as mortgagees and the suit land is recorded in the ownership of the defendants (respondents herein and hereinafter referred to as “the defendants”). In fact the suit land was originally owned and possessed by Dagu and Lahullu, who were predecessors-in-interest of the defendants. On 11.05.1932 Dagu and Lahullu mortgaged the suit land with possession for Rs. 100/- in favour of one Jallu, who was predecessor-in- interest of the plaintiffs and mutation No. 908, dated 26.05.1932, was sanctioned. Thereafter, Jallu remained in possession of this land as mortgagee throughout his life and his son, Budh Ram, remained in possession of the suit land after the death of Jallu. After the death of Budh Ram, suit land was possessed by the plaintiffs, being his legal heirs. The suit land was not redeemed by Dagu and Lahullu during their life time and their predecessors also did not redeem the suit land. So, the suit land remained in possession of the plaintiffs and their predecessors. It was averred that half share of the suit land had not been redeemed by predecessors of the defendants, so mutation No. 162 qua the redemption is wrong. So, the suit land remained in possession of the plaintiffs and their predecessors. It was averred that half share of the suit land had not been redeemed by predecessors of the defendants, so mutation No. 162 qua the redemption is wrong. It was further averred that whole of the suit land is in possession of the plaintiffs and they have become owners of the suit land, as the predecessors of the defendants have failed to redeem the suit land within the statutory time, thus the revenue entries, which are contrary, are wrong. It was averred that taking undue advantage of wrong revenue records, defendant No. 1 and one Dhani Ram illegally sold 0-8-0 bigha of land to defendant No. 4 and the entries showing defendant No. 4 as owner-in-possession of the land are wrong and illegal. The defendants, on being requested by the plaintiffs, did not correct the revenue entries and accepted the claim of the plaintiffs. Lastly, the plaintiffs filed a suit seeking reliefs that they be declared owners-in-possession of the suit land and the defendants be restrained from causing interference in the suit land. 3. The defendants, by way of filing written statement, contested and resisted the suit of the plaintiff. They raised preliminary objections, viz., maintainability cause of action and locus standi. On merits, the defendants denied that the plaintiffs or their predecessors-in- interest remained in possession over the suit land. It has been pleaded that possession of the suit land was never delivered to Jallu by Dagu and Lahullu. The defendants admitted that Dagu and Lahullu did not redeem the suit land during their life time and half of the mortgaged land was redeemed by the legal-heirs of the deceased Dagu. Dagu and Lahullu remained in possession of the suit land and after their deaths, the land was possessed by their legal heirs and now the suit land is in possession of the defendants. As per the defendants, attestation of mutation No. 162, dated 28.07.1952, is legal and mortgage can be redeemed at any time. They have further contended that defendant No. 4 purchased 0-8-0 bighas of land legally and consequential thereto he has become owner of this piece of land. The plaintiffs or their predecessors never remained in possession of the suit land, so they cannot be said to have become owners of the suit land by way of adverse possession. They have further contended that defendant No. 4 purchased 0-8-0 bighas of land legally and consequential thereto he has become owner of this piece of land. The plaintiffs or their predecessors never remained in possession of the suit land, so they cannot be said to have become owners of the suit land by way of adverse possession. The defendants can redeem their half share of the mortgaged land at any time and to that effect they filed application in the competent court. Lastly, the defendants contended that plaintiffs have no right, title and interest in the suit land, thus the suit was prayed to be dismissed. 4. The learned Trial Court on 21.12.2004 framed the following issues for determination and adjudication: “1. Whether the plaintiffs have become the owner in possession of the suit land by way of foreclosure as alleged? OPP 2. Whether the plaintiffs are entitled to the permanent injunction as prayed for? OPP 3. Whether the revenue entries are wrong and illegal as alleged? OPP 4. Whether the plaintiffs have a cause of action? OPP 5. Whether the plaintiffs have a cause of action? OPP 6. Whether the suit is pre-mature as alleged. If so, its effect? OPD 7. Whether the suit is not maintainable in the present form? OPD 8. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction as alleged? OPD 9. Whether this Court has got no jurisdiction to hear and decide the present suit? OPD 10. Relief.” 5. After deciding issues No. 1 to 5 against the plaintiffs, issues No. 6 and 7 in favour of the defendants and issues No. 8 and 9 against the defendants, the suit of the plaintiffs was dismissed. Subsequently, the present appellant (plaintiff) preferred an appeal before the learned Lower Appellate Court, which was also dismissed, vide impugned judgment dated 18.07.2006, hence the present regular second appeal, which was admitted for hearing on the following substantial questions of law: “1. Whether the successor-in-interest of the mortgagor can redeem a portion of the mortgage property and whether such partial redemption is permissible in law where the mortgage amount has not been tendered nor mutation attested on the basis of the order of a competent court or revenue authority? 2. Whether the successor-in-interest of the mortgagor can redeem a portion of the mortgage property and whether such partial redemption is permissible in law where the mortgage amount has not been tendered nor mutation attested on the basis of the order of a competent court or revenue authority? 2. Whether with respect of usufructory mortgage the date of which is undisputed and mutation of which usufructory mortgage is duly sanctioned, and in terms of provision of Section 61 of the limitation Act, the period of redemption would start from the date of such mortgage or whether there is no limitation for redemption of the usufructory mortgage and the title is not lost by lapse of time? 3. Whether a mortgagee has a right to seek foreclosure as provided under Section 63 of the Limitation act after the lapse of 30 years from the date of the mortgage as also the date of the entry of mutation and whether such right of foreclosure can be denied to the mortgagee by the mortgagor on his failure to redeem the mortgage land? 4. Whether a mutation entered behind the back of the mortgagee regarding partial redemption of the mortgage land without following the conditions laid down under the H.P. Land Records Manual is valid and if without an order of competent court or revenue officer, it can be construed a valid mutation of redemption of partial mortgage property and whether on basis of such mutation, the title passes to the mortgagor and such mortgagor is competent to further transfer the land or not?” 6. I have heard the learned Counsel for the appellant and the learned Counsel for the respondents. 7. The learned Counsel for the appellant has argued that the judgments and decrees passed by the learned Courts below are without taking into consideration the evidence which has come on record and the same has not been properly appreciated to its true perspective. He has further argued that the redemption cannot be in part. The learned Courts below have failed to take into consideration the law. The plaintiff has also become owner by way of adverse possession, as the defendants have failed to redeem the land within the stipulated period. He has further argued that the redemption cannot be in part. The learned Courts below have failed to take into consideration the law. The plaintiff has also become owner by way of adverse possession, as the defendants have failed to redeem the land within the stipulated period. In contrast to what has been argued by the learned counsel for the plaintiff, the learned counsel for the defendants has argued that it was a usufructory mortgage without any specific time and it could be redeemed at any time and the possession can be taken back at any time. He has further argued that the plaintiff cannot claim adverse possession, as there was no time frame fixed for redemption of the mortgage. Even otherwise also the right of adverse possession cannot be asserted as a sword but can only to be used as a shield. He has argued that the learned Courts below have rightly dismissed the suit and the appeal of the plaintiff. 8. In rebuttal, the learned counsel for the plaintiff has argued that the mortgagee is in possession of whole share of the land and there cannot be redemption as claimed by the defendants and the suit of the plaintiff be decreed throughout with costs. 9. In order to appreciate the rival contentions of the parties I have gone through the record carefully. 10. Indisputably, copy of mutation No. 908, Ex. P-2, dated 11.05.1932, clearly shows that the suit land was mortgaged for Rs. 100/- by Dagu and Lahullu, who were predecessors-in-interest of the defendants, in favour of Jallu, predecessor-in-interest of the plaintiffs. It is also undisputed that vide mutation No. 162, dated 28.07.1952, Dhani Ram etc., successor of Dagu, redeemed half of the share of Dagu and this fact is further fortified by Ex. P-4, copy of mutation No. 162. It is further admitted case that defendant No. 1 that Dhani Ram sold land measuring 0-8-0 bighas, out of the suit land, in fvour of defendant No. 4 and this fact is reflected in copy of mutation No. 3824, copy whereof is Ex. P-6. P-4, copy of mutation No. 162. It is further admitted case that defendant No. 1 that Dhani Ram sold land measuring 0-8-0 bighas, out of the suit land, in fvour of defendant No. 4 and this fact is reflected in copy of mutation No. 3824, copy whereof is Ex. P-6. Precisely, the plaintiffs’ claim is that as the defendants or their predecessors-in-interest did not redeem the suit land within the statutory period, the plaintiffs are still in possession of the suit land, as mortgagees from 1932, the year when the suit land was mortgaged by the predecessors-in-interest of the defendants in favour of predecessors-in-interest of the plaintiffs, thus the plaintiffs became owners of the suit land by way of foreclosure. Further case of the plaintiffs is that the revenue entries are wrong, illegal and void and the defendants have no right, title and interest over the suit land. Conversely, the defendants contend that in the year 1952 half of suit land was redeemed by the successors of Dagu and Lahullu and remaining suit land is being possessed by the defendants. It is further contended by the defendants that the suit is premature, as the mortgage was usufructory mortgage, so there is no question of loosing title by the defendants, as no limitation for redemption of the suit land was there. Now, in the wake of the above admitted position of the case, the only controversy remains whether the plaintiffs became owners of the suit land by way of foreclosure or their suit is premature and not maintainable. 11. Now, the ocular evidence of the parties needs to be looked into. PW-1 Smt. Devku deposed that the suit land is still in possession of the plaintiffs, as mortgagees, and the same is not redeemed by the defendants or their predecessors-in-interest, as such, the plaintiffs have become owners of the suit land. She, in her cross-examination, has deposed that in year 1952 Dhani Ram etc. got half of the suit land redeemed. DW-1 Shri Kamle Ram deposed in his written statement that half of the suit land was redeemed in the year 1952. He, in his cross-examination, has denied the suggestion that plaintiffs have become owners of the suit land. 12. The above is the only evidence which has come on record. got half of the suit land redeemed. DW-1 Shri Kamle Ram deposed in his written statement that half of the suit land was redeemed in the year 1952. He, in his cross-examination, has denied the suggestion that plaintiffs have become owners of the suit land. 12. The above is the only evidence which has come on record. The ocular evidence and documentary evidence clearly show that the entire suit land was mortgaged by Dagu and Lahullu for Rs. 100/- in fvour of Jallu, who was predecessor-in-interest of the plaintiffs. It also stands proved through Mutation No. 162, Ex. P-4, that in the year 1952 half of the share of Dagu was redeemed by Dhani Ram etc. who were successors of Dagu. Now the question remains whether the plaintiffs have become owners of the suit land through foreclosure, as the defendants or their predecessors-in-interest did not redeem the suit land within the stipulated time or the claim of the plaintiffs is premature, as failure on the part of the defendants to redeem the land within the stipulated time does not give any right to the plaintiffs. It is settled law that limitation for redemption only runs from the date fixed with the mortgage deed and usufructory mortgage has no limitation for its redemption. In fact, usufructory mortgagor cannot be said to have lost his title to the property and also the right to redeem the property, with the efflux of time. In the case in hand, mortgage was usufructory and possession was delivered to the mortgagees under the usufructory mortgage and no date was fixed in Mutation No. 908, Ex. P- 2, from which the limitation for redemption would run. Therefore, the plaintiffs cannot be said to have become owners of the suit land by way of foreclosure. The revenue entries also cannot be said to be wrong and the plaintiffs had no locus standi to claim ownership, only as they were mortgagees. The plaintiffs had no cause of action to maintain a suit against the defendants and the suit was premature and not maintainable. 13. In view of the above, it is clear that the mortgage was oral and for Rs. 100/-. However, the mutation was attested when the suit land was mortgaged and this fact is fortified by copy of mutation, Ex. P-2. Ex. 13. In view of the above, it is clear that the mortgage was oral and for Rs. 100/-. However, the mutation was attested when the suit land was mortgaged and this fact is fortified by copy of mutation, Ex. P-2. Ex. P-2 demonstrates that on 13.05.1932 both mortgagors and mortgagee appeared before Halqua Patwari and informed that land measuring 2-2-0 bighas of khata No. 256 stood mortgaged for Rs. 100/-. Ex. P-2 contains a recital that possession has been delivered to the mortgagee by the mortgagor and the consideration amount was received. Thus, evidently Dagu and Lahullu (mortgagors) got mortgaged the suit land in favour of Jallu and the mortgage was completed by delivery of possession and acceptance of consideration of Rs. 100/-. So, it can be safely held that the mortgage was usufructuary and PW-1 Smt. Devku also specifically deposed that suit land was mortgaged with her grand-father Jallu by Dagu and Lahullu for consideration of Rs. 100/- and the possession was delivered on the spot. She has further deposed that after the death of her grandfather Jallu, her father came in possession over the suit land and after his death the land came under her possession. As per the plaintiffs, Dagu and Lahullu did not redeem the suit land during their life time, thus the plaintiffs became owners of the land. PW-1 denied in her cross-examination that deceased Dhani Ram, who was predecessor-in-interest of defendants No. 2 and 3, redeemed his half share in the mortgaged land. Conversely, DW-1 Shri Kamle deposed that in the year 1952 half share in the suit land was redeemed and for redeeming rest of the half share, after depositing the mortgaged money, the matter is pending adjudication before SDO (Civil) Kullu. However, there is no evidence qua the pendency of those proceedings before the SDO (Civil), so to this extent the statement of DW-1 cannot be believed. A combined reading of ocular and documentary evidence shows that the suit land was mortgaged by the predecessors-in-interest of the defendants with the predecessor-in-interest of the plaintiffs and the right of the mortgagor to get it redeemed will never extinguish. 14. In these circumstances, the right of the defendants to get the suit land redeemed does not extinguish. A combined reading of ocular and documentary evidence shows that the suit land was mortgaged by the predecessors-in-interest of the defendants with the predecessor-in-interest of the plaintiffs and the right of the mortgagor to get it redeemed will never extinguish. 14. In these circumstances, the right of the defendants to get the suit land redeemed does not extinguish. As far as the claim of adverse possession, as alleged by the plaintiff, is concerned, the plaintiff has failed to show when she came into adverse possession and further she could not maintain suit on this basis. 15. The Hon’ble Supreme Court has held as under in Harbans vs. Om Prakash & others, AIR 2006 SCC 686 : “5. The trial Court held that the suit was to succeed and, therefore, decreed the same in favour of the plaintiff and defendant Nos. 2 and 3. It held them to be owner in possession of the suit land with consequential relief of permanent injunction and restraint for alienation of the suit land in any manner. An appeal was preferred by defendant no. 1 impleading the plaintiff and defendant Nos. 2 & 3 as respondents. Learned Additional Sessions Jude, Panipat allowed the appeal and held that the plaintiff and defendant Nos. 2 and 3 had not become owners as there was no period of limitation to redeem the usufructuary mortgage. It was, however, held that defendant no. 1 had failed to prove that the mortgage has been redeemed. But plaintiff and defendant Nos. 2 & 3 were in possession of the land in dispute as mortgagees only and they cannot be dispossessed except in due course of law. Regarding injunction the appeal filed was dismissed. The suit filed by the plaintiff was decreed to the effect that defendant No. 1 was restrained from the interfering with the peaceful possession of plaintiff and defendant Nos. 2 and 3 except in due course law. A second appeal was filed by the plaintiff and by the impugned order learned Single Judge dismissed the same holding that there was no limitation for redeeming the mortgage as there was no evidence brought on record to show that the mortgage was for a fixed period. Since no time was fixed for redeeming the land the mortgagor has right to get the property redeemed, there being no limitation for the mortgagor.” 16. Since no time was fixed for redeeming the land the mortgagor has right to get the property redeemed, there being no limitation for the mortgagor.” 16. In view of the above, substantial question of law No. 1 is answered holding that there is no limitation to redeem usufructuary mortgage, partially or as a whole. As in the case in hand the mortgage was usufructuary mortgage, the plaintiff cannot become owner of the suit land merely on the basis that the mortgage was not redeemed. The substantial question of law No. 2 answered holding as the mortgage in question was usufructuary mortgage, there is no time limit to redeem the same. 17. As the usufructuary mortgage has no time limit to redeem the same, the right of foreclosure does not accrue to the mortgagee, therefore, the substantial question of law No. 3 is answered accordingly. As far as substantial question of law No. 4 is concerned, it is answered holding that the plaintiff (appellant) has failed to prove on record that mutation was attested behind her back and without following the law, so there is nothing to conclude that the mutation was executed behind the back of the mortgagee. The presumption of truth is attached to the revenue entries, so there is nothing to hold that the mortgage was redeemed and the mutation was attested and the mutation was attested behind the back of the plaintiff, thus the substantial question of law No. 4 is answered accordingly. In the wake of what has been discussed hereinabove, the findings rendered by the learned Courts below cannot be said to be perverse. 18. The net result of the above discussion is that the appeal, which sans merits, deserves dismissal and is accordingly dismissed. However, taking into consideration the facts and circumstances of the case, the parties are left to bear their own costs. 19. In view of the disposal of the appeal, pending applications, if any, shall also stands disposed of.