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2019 DIGILAW 2917 (RAJ)

Bhagwan Das Agarwal v. Srichand Agarwal Mahajan

2019-11-29

PRAKASH GUPTA

body2019
JUDGMENT : Prakash Gupta, J. 1. This second appeal under Section 100 CPC has been filed by the appellants-defendants (hereinafter referred to as 'the defendants') against the judgment and decree dated 6.1.2015 passed by the Addl. District Judge, Sawai Madhopur in Appeal No. 330/2009 (06/2007) (hereinafter referred to as 'the Appellate Court'), by which the appeal filed by the defendants has been dismissed and the judgment and decree dated 23.11.2006 passed by the Addl. Civil Judge (Sr. Division), Sawai Madhopur (hereinafter referred to as 'the Trial Court') in Civil Suit No. 138/2001 (247/85, 12/86, 289/96), decreeing the respondents-plaintiffs (hereinafter 'the plaintiffs') suit for redemption and possession, has been affirmed. 2. Facts of the case are that the plaintiffs filed a suit for redemption and possession of a shop, as described in para no.1 of the plaint. It was mentioned in the plaint that on 1.3.1956, the suit property was mortgaged by one Shri Narayan in favour of the defendant no. 1 in lieu of a consideration of Rs. 3500/-. The said mortgage deed was registered on 2.1.1957. The original plaintiff Kalyan Mal filed a suit against the aforesaid Shri Narayan, which was decreed by the Civil Judge vide its judgment and decree dated 28.1.1961. In execution proceedings, the suit property was put to auction by the executing court. On 3.3.1965, the suit property came in the hands of the original plaintiff and the auction proceedings came to an end. The sale was confirmed by the court concerned vide its order dated 10.7.1965. On confirmation of sale in favour of the plaintiff, in place of Shri Narayan, the original plaintiff became the mortgagor of defendant no. 1 (mortgagee). It was also mentioned in the suit that from the date of mortgage, the defendant no. 1 let out the suit property to defendant no. 2 and started obtaining rent. On account of having received more money than the money for which the suit property was mortgaged, the suit property automatically got redeemed. The original plaintiff sent a registered notice to the defendant on 17.12.1984, but defendant no. 1 neither handed over the possession of the suit property nor stopped receiving rent from defendant no. 2 who in turn did not discontinue paying the rent to defendant no. 1. In this view of the matter, suit for redemption and possession of the property was filed by the plaintiff. 3. The defendant no. 1 neither handed over the possession of the suit property nor stopped receiving rent from defendant no. 2 who in turn did not discontinue paying the rent to defendant no. 1. In this view of the matter, suit for redemption and possession of the property was filed by the plaintiff. 3. The defendant no. 1 filed written statement denying the averments made in the plaint. It was denied that there was no relationship of mortgagor and mortgagee between the plaintiff and the defendant no.1. It was also submitted that the suit was not filed within the prescribed time of limitation. It was also submitted that towards interest on the mortgage amount, Shri Narayan had received the rent but Shri Narayan never repaid the rent. Thus, rent was due to be paid by Shri Narayan, which the defendant no. 1 was entitled to recover from Shri Narayan for the reason that the defendant no. 1 was having charge on the suit property. It was also submitted that at the time of mortgage, the suit shop was in a dilapidated condition. The defendant no. 1 incurred Rs. 5000/- on renovation of the suit property. It was further submitted that when Shri Narayan failed to repay the mortgage amount and could not redeem his charge over the suit property, he sold the same to the defendant no. 1 on 23.10.1964 for a consideration of Rs. 6000/-. It was further submitted that after sale of the suit property on 23.10.1964 by Shri Narayan, Shri Narayan continued to occupy the suit property as a tenant. When Shri Narayan did not pay a single penny towards rent, the defendant no. 1 filed a suit for eviction and recovery of rent against Shri Narayan. The Magistrate concerned, Sawai Madhopur considering the defendant no. 1 to be the owner of the suit property passed a judgment and decree for recovery of rent and eviction in favour of defendant no. 1. In the execution proceedings, vide order dated 16.4.1977 passed by AMJM, Sawai Madhopur, possession of the suit property was handed over to the defendant no. 1 and since then he has been in possession of the suit property. 1. In the execution proceedings, vide order dated 16.4.1977 passed by AMJM, Sawai Madhopur, possession of the suit property was handed over to the defendant no. 1 and since then he has been in possession of the suit property. It was further submitted that when sale in auction proceedings were confirmed on 10.7.1965, the plaintiff was required to file a suit for possession within 12 years therefrom, but the suit was filed in the year 1985 which being barred by limitation was liable to be dismissed. It was also submitted that during the auction proceedings, a compromise was arrived at between the plaintiff and the defendant no. 1 and it was agreed that the disputed property of Shri Narayan would be joint property of plaintiff and defendant no. 1 and both would keep the mortgaged property and it was also agreed that the suit property would be partitioned between them on the basis of proportion of decrees. An agreement dated 1.3.1965 was executed by the plaintiff in favour of the defendant no. 1, which was duly signed by him. In this view of the matter, the plaintiff is not the sole owner of the suit property. Shri Narayan calculated the decretal amount and after adding the mortgage amount therein, the amount was assessed to be Rs. 9500/- and for this purpose, an agreement dated 14.5.1964 was executed by Shri Narayan in favour of the defendant no. 1 wherein he agreed to sell the shop to the defendant no. 1 since he had not paid the amount of Rs. 9500/-. On the basis of the said agreement, on 23.10.1964 he executed the sale deed of the disputed property in favour of the defendant no. 1 and since then the defendant no. 1 is in possession of the suit property. 4. The defendant no. 2 filed his written statement stating that he is the tenant in the suit property and regularly paying the rent. No suit for redemption and recovery of possession could have been filed against him because in the City Sawai Madhopur, Rajasthan Rent Control Act is in force. The plaintiff is only the purchaser of the property in the auction proceedings as such no cause of action accrues against him. 5. During the pendency of the suit, defendant no. 1 Jagannath died, hence his LRs were taken on record. 6. The plaintiff is only the purchaser of the property in the auction proceedings as such no cause of action accrues against him. 5. During the pendency of the suit, defendant no. 1 Jagannath died, hence his LRs were taken on record. 6. Original plaintiff filed rejoinder to the written statement filed by the defendants as also the counter claim. It was submitted that no amount was incurred by the defendant no. 1 for maintenance and repair of the suit property within limitation. He further submitted that the suit property was mortgaged and not sold. On 13.9.1973, the defendant no. 1 admitted that the suit property was mortgaged to him. If the defendant no. 1 had any agreement in his favour, he ought to have filed a suit for specific performance of the agreement. On 1.3.1965 no agreement was executed between the plaintiff and defendant no. 1. On 17.3.1980, the plaintiff sent a notice to the defendant no. 1 to pay the amount of Rs. 6000/- towards his share, failing which the agreement entered into between the plaintiff and defendant no. 1 was to be unenforceable. The defendant no. 1 neither paid the amount nor replied to the notice. 7. On the basis of pleadings of the parties, the Trial court framed as many as 15 issues. 8. The Trial Court vide its judgment and decree dated 23.11.2006 decreed the plaintiffs' suit. The appeal filed by the defendants was dismissed by the Appellate Court vide its judgment 6.1.2015 dismissed the appeal and affirmed the judgment and decree passed by the Trial Court. 9. Hence, the present Civil Second Appeal has been filed. 10. Learned counsel for the appellants-defendants submitted that the suit shop was purchased by the defendant no. 1 on 23.10.64 as such he was the owner of the suit shop, but the learned courts below failed to consider Ex. A-3, A-4 and A-5 in this regard. She has further contended that suit was not filed within limitation. In the present case, provisions of Article 65 (C) of the Limitation Act were applicable. Article 61 of the Limitation Act is not attracted in this case for the reason that the plaintiff is not the original mortgagor, but he is the auction purchaser of the property, which was confirmed on 10.7.1965. She has further submitted that when defendant no. In the present case, provisions of Article 65 (C) of the Limitation Act were applicable. Article 61 of the Limitation Act is not attracted in this case for the reason that the plaintiff is not the original mortgagor, but he is the auction purchaser of the property, which was confirmed on 10.7.1965. She has further submitted that when defendant no. 1 had already obtained the possession from Shri Narayan and/or his tenant and thus, the suit for redemption and possession was not maintainable. 11. Learned counsel for the plaintiffs supported the impugned judgments passed by the courts below and stated the same to be just and proper. He submitted that the learned courts below having discussed all the aspects of the matter rightly passed the impugned judgments, which call for no interference by this Court. 12. Heard learned counsel for the parties and carefully perused the relevant material on record. 13. So far as the ownership of the suit shop is concerned, the Trial Court found that the defendant no. 1 failed to prove that Ex. A/3, A/4 and A/5 were executed by Shri Narayan or plaintiff in his favour. The Trial Court also found that the defendant no. 1 had received more amount of rent from the suit property than the mortgaged amount. It was also found by the Trial court that in the decree for eviction and possession of the suit property passed against Shri Narayan, the possession of the suit property was handed over to the defendant no. 1 by Master Sardar Singh. There was no pleading by defendant no. 1 nor any evidence was adduced by him to the effect that Shri Narayan had rented the suit shop on sub-tenancy to Master Sardar Singh. It was not the averment of the defendant no. 1 that Master Sardar Singh was the agent or his servant. In that view of the matter, the Trial Court found that from the date of mortgage, the suit shop was not in the possession of Shri Narayan. The Trial court also found that the plaintiff purchased the suit property in auction in his own name, wherein the defendant no. 1's name was not mentioned and sale was confirmed in the name of plaintiff. 14. Even otherwise, the documents Ex. -A/3, A/4 and A/5 have not been proved by the defendants and these documents, being insufficiently stamped and unregistered were inadmissible in evidence. 1's name was not mentioned and sale was confirmed in the name of plaintiff. 14. Even otherwise, the documents Ex. -A/3, A/4 and A/5 have not been proved by the defendants and these documents, being insufficiently stamped and unregistered were inadmissible in evidence. No evidence contrary to it has been adduced by the defendants. 15. So far as the issue of limitation was concerned, the Trial Court found that the mortgage deed was executed on 1.3.1956 and registry thereof was done on 2.1.1957. Under Article 61 of the Limitation Act, for redemption of mortgage property, the prescribed period of limitation is 30 years and that too from the date when there is a default in payment of the mortgage amount. In that view of the matter, the suit filed by the plaintiff on 5.9.1985 was not found to be barred by limitation. Accordingly the Trial Court vide its judgment and decree dated 23.11.2006 allowed the plaintiffs' suit for redemption and possession. 16. Before proceeding further in the matter, it would be relevant to quote the relevant provisions as under: 61. By a mortgagor- (a) to redeem or recover possession of immovable property mortgaged Thirty Years When the right to redeem or to recover possession accrues. 65. For possession for immovable property or any interest therein based on title Twelve Years (a)...... (b)..... (c) Where the suit is by a purchaser at a sale in execution of a decree when the judgement-debtor was out of possession at the date of the sale, the purchaser shall be deemed to be a representative of the judgment-debtor who was out of possession. A perusal of the aforesaid provisions make it clear that where the suit for possession of immovable property on the basis of title is filed, the limitation is 12 years and where the suit is filed by a mortgagor to redeem or recover possession of immovable property, the limitation is 30 years. 17. While adverting to the facts of the instant case, it is noticed that the suit property was mortgaged by Shri Narayan in favour of defendant no. 1 Jagannath, which was subsequently purchased by the plaintiff in the auction. In this view of the matter, the plaintiff was having the capacity of mortgagor in place of Shri Narayan and the defendant no. 1 was the mortgagee and relationship of mortgagor and mortgagee was established between them. 18. 1 Jagannath, which was subsequently purchased by the plaintiff in the auction. In this view of the matter, the plaintiff was having the capacity of mortgagor in place of Shri Narayan and the defendant no. 1 was the mortgagee and relationship of mortgagor and mortgagee was established between them. 18. Further, there is no time limit for usufructuary mortgagor to seek redemption and recovery of possession of immovable property mortgaged. Right to seek redemption would accrue not from the date of creation of mortgage but from date of payment of mortgage money out of usufructs or partly out of usufructs and partly on payment or deposit by mortgage as provided under Section 62 of the Transfer of Property Act. Until then, limitation would not start under Article 61 and as such, mere expiry of period prescribed thereunder would not extinguish mortgagor's right of redemption and entitle mortgagee to seek declaration of title and ownership over mortgaged property, as has been held by the Hon'ble Apex Court in the case of Singh Ram (Dead) through Legal Representatives vs. Sheo Ram and others reported in (2014) 9 Supreme Court Cases 185. In this connection, learned counsel for the plaintiffs drew the attention of this Court towards the notice dated 24.6.1983 sent by the respondent-plaintiff to the defendant for payment of the mortgaged property in order to redeem the same and the suit for redemption and possession of property was filed on 5.9.1985 i.e. within two years and three months. 19. There is a concurrent finding of both the courts below, which are based on material available on record. A perusal of the impugned judgments of both the courts below would reveal that while recording their findings, both the courts below have properly appreciated the evidence available on record in accordance with law. Thus, the findings recorded by the learned courts below being findings of fact, require no interference by this Court in second appeal. This Court is of the view that no question of law, much less any substantial question of law is involved in the instant second appeal. Hence, the second appeal is liable to be dismissed which stands dismissed accordingly.