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2019 DIGILAW 449 (PNJ)

Sumer Chand v. Mewa Ram & Ors.

2019-02-07

AMIT RAWAL

body2019
JUDGMENT Amit Rawal J. (Oral) - The appellant-defendant has not been able to defend the suit for redemption filed by the respondent-plaintiffs in the trial Court and as well as in appeal. 2. The decree for redemption was sought on payment of Rs.12,000/- on the premise that Babu Ram adopted son of Shankeri Devi was owner of the agricultural land measuring 11 bighas 19 biswas being share of the agricultural land measuring 23 bighas 19 biswas recorded in khewat no.106, khatoni no.16, khasra no.753(4-0), 756(4-0), 757(1-17), 1087(3-0), 1089(4-0) khewat no.107, khatoni no.18 khasra no.759(3-2), 762 (3-19) situated in the village Ban, Tehsil Thanesar District Kurukshetra. Babu Ram, vide registered mortgage deed dated 16.6.1970, granted the mortgage in favour of the defendant for a consideration of Rs.12,000/-. There was bar for redemption for a period of four years. Babu Ram sold the aforementioned land along with other land for a sum of Rs.50,000/- to the plaintiffs vide registered sale deed dated 23.5.1973. All the plaintiffs purchased the land in the following manner:- "Plaintiffs no.1 to 3 purchased 1/3 share in equal shares plaintiffs no.4 to 7 purchased 1/3 share in equal share and plaintiffs no.8 to 11 purchased 1/3rd share in equal share of the land in dispute." 3. After the mortgage, consolidation was effected in the village and the land measuring 21 kanals 4 marlas subject matter of the mortgage comprised in khewat no.170, khatoni no.182, rect. no.60, khasra no.24/3(1-19), 25/2 (4-18), rect. no.73, khasra no.4/2 (5-8) min shumal, 5(8-0), 6/1(0-9) situated in the village Ban, Tehsil Thanesar District Kurukshetra, was allotted. 4. An application under Section 4 of the Punjab Redemption of Mortgage Act, 1913 (for short "1913 Act") was filed before the Collector wherein Sumer Chand was arrayed as defendant. The said application was dismissed owing to mentioning of new numbers. Thereafter, plaintiffs filed another application before the Collector but the same was dismissed on the ground that it was not in the Court language. Thereafter, they filed another application which was dismissed in default. The application for restoration was also dismissed. After that afresh application was filed in the Court language by giving correct numbers which was allowed. The defendant challenged the same in the civil suit and vide judgment and decree dated 27.2.1987, order dated 21.08.1984 was set aside. Thereafter, they filed another application which was dismissed in default. The application for restoration was also dismissed. After that afresh application was filed in the Court language by giving correct numbers which was allowed. The defendant challenged the same in the civil suit and vide judgment and decree dated 27.2.1987, order dated 21.08.1984 was set aside. Since the defendant was not found to be in possession, the suit was filed for possession by seeking redemption. 5. Defendant contested the suit and stated that sale deed was executed in favour of the plaintiffs whereas a sum of Rs.3000/- had been left in addition to the mortgage amount which was not offered. Babu Ram had taken a loan of Rs.8,000/- and promised to pay the same at the time of redemption. 6. Since the parties were at variance, earlier the trial Court framed the issues but thereafter, following issues were re-framed:- 1. Whether an amount of Rs.3,000/- was left in addition to the mortgaged amount for the defendant and the plaintiffs have not offered the said amount to him, if so, to what effect?OPD (defendant) 2. Whether the plaintiffs no.5, 6, 7, 10 and 11 are minors but have not been sued through their next friend, if so to what effect? OPA (plaintiffs) 3. What is the effect of amendment in the details of land in the plaint now effected by the respondent- defendant?OPA (plaintiffs) 7. Vide order dated 3.2.1994, following additional issues were also framed:- "1. Whether the plaintiffs have no locus standi to file and maintain the present suit?OPD 2. Whether the original mortgagor Shri Babu Ram had obtained a sum of Rs.8000/- as loan on the land orally from the defendant and had promised to pay the same at the time of redemption?OPD 3. Whether the defendant is entitled to improvement charges as alleged in the additional plea in the written statement.?OPD " 8. The plaintiffs in support of the averments examined two witnesses and brought on record documents Ex.P1 to Ex.P11 and Mark-A. On the other hand, defendant stepped into witness box as DW1 and tendered into evidence documents Ex.D1 to Ex.D21. 9. Mr. The plaintiffs in support of the averments examined two witnesses and brought on record documents Ex.P1 to Ex.P11 and Mark-A. On the other hand, defendant stepped into witness box as DW1 and tendered into evidence documents Ex.D1 to Ex.D21. 9. Mr. U.K.Agnihotri, learned counsel appearing on behalf of the appellant-defendant submitted that once the order of the Collector in the proceedings initiated under the Punjab Redemption of Mortgage Act, was set aside, vide judgment and decree dated 27.2.1987, Ex.P7 and Ex.P8, the present suit was not maintainable. The plaintiffs had only purchased 18 kanlas 13 marlas, whereas, the mortgage was with regard to 21 kanals odd marla. Under the garb of redemption, the plaintiffs cannot be permitted to take the entire piece of land, thus, there is gross illegality and perversity in the findings under challenge. 10. I have heard the learned counsel for the appellant-defendant, appraised the judgments and decrees and of the view that there is no force and merit in the submissions of Mr. Agnihotri, as on going through the judgment and decree Ex.P7 and Ex.P8, order of the Collector dated 21.08.1994 was not set aside on account of redemption but on technical ground, therefore, the rights of the parties with regard to mortgage were not crystalized. Even otherwise as per the provisions 4 of 1913 Act, there is no bar for the mortgagor to seek redemption in the competent Court of law as there is no embargo in the aforementioned Act, thus, argument of Mr. Agnihotri is hereby repelled. 11. As regards other arguments, Ex.D2, khasra numbers reflected that Jeet Ram son of Daya Ram was owner of the khasra no.73/4/2/2 (2-14) and that particular khasra number was in possession with the plaintiffs as mortgagee. The plaintiffs are owners of land measuring 18 kanals, total comes to the same as the disputed property. The other documents of the defendant i.e. Jamabandis for the year 2010-11 Ex.D3 and Ex.D4 depicted identical situation. The land mortgaged with the defendant had number i.e. Khewat no.170 khatoni no.182, rect. no.60 khasra no.24/3(1-19), 25/2 (4-19), rect. no.73, khasra no.4/2 (5-8) min Shumal, 5 (8-0), 6/1 (0-19). 12. As an upshot of my findings, arguments of Mr. Agnihotri, are not able to bring the case within the realm of illegality and perversity to form a different opinion than the one arrived at by the Courts below. no.60 khasra no.24/3(1-19), 25/2 (4-19), rect. no.73, khasra no.4/2 (5-8) min Shumal, 5 (8-0), 6/1 (0-19). 12. As an upshot of my findings, arguments of Mr. Agnihotri, are not able to bring the case within the realm of illegality and perversity to form a different opinion than the one arrived at by the Courts below. No substantial question of law arises for adjudication of the present appeal. 13. Resultantly, the regular second appeal is dismissed.