Tundal
& Ors Vs. Munshi & Ors [2006] Insc 500 (18 August 2006)
Arijit
Pasayat & Lokeshwar Singh Panta Lokeshwar Singh Panta, J.
These
appeals are directed against the common judgment and decree dated 5th January, 1995 passed by the learned Single Judge
of the High Court of Punjab and Haryana dismissing Regular Second Appeal Nos.
724/1985, 1740/1990, 725/1985 and 307/1991 filed by the appellants- defendants
against the judgment and decree of the Additional District Judge (II), Faridabad. The Additional District Judge has
dismissed the Civil Appeal No. 101 of 1983 preferred by original
defendant-appellant Tundal against the judgment dated 7th June, 1983 of Sub-Judge First Class, Palwal, decreeing the Civil Suit
No. 232 of 1980 instituted by the plaintiffs-respondents for possession of the
land by way of redemption. We have taken up and heard these appeals together as
they involve same and identical issues and they shall stand disposed of by this
common judgment.
Brief
facts giving rise to the filing of the appeals are that one Smt. Mohori, widow
of Dan Sahai, was the owner in possession of the agricultural land comprising
Khasra Nos. 871, 872, 873, 900, 901, 903 and 907 of Khatoni No. 21 and Khasra
No. 576 of Khatoni No. 22, Khewat No. 7 admeasuring 14 bighas, 9 biswas
situated in village Raidaska, Tehsil Palwal, District Faridabad. During
consolidation proceedings, lands measuring 45 kanals 8 marlas was allotted to
Smt. Mohori in lieu of old khasra numbers which was mortgaged by Smt. Mohori
with possession with original appellant-defendant No. 1 Tundal (now dead), vide
registered Mortgage Deed dated 18th September, 1951 registered on 25th
September, 1951 for an ostensible consideration of Rs. 2,200/- which amount was
reduced to Rs. 825/- in the decree of Civil Court and pursuant to the said
decree mutation of the land was sanctioned on 2nd April, 1957.
Smt.
Mohori died in the year 1967 and the mutation of the inheritance was sanctioned
in favour of the heirs mentioned in the pedigree table given in paragraph 5 of
the plaint. Hukam Singh-original plaintiff No. 6 and Dal Chand- plaintiff No.
7, respondents herein, have acquired rights in the suit land on the basis of
decree of Civil Court in Suit No. 200 dated 30th March, 1974 in respect of the
shares of Khillu, Rumali - widow, Ramvati - daughter and Pitamber son of Giasi.
After the acquisition rights, Khillu was left with 1/6th share whereas Rumali,
Pitamber, Ramvati got 1/6th share each. The mutation of their shares was
entered in the Revenue Record, which was sanctioned on 12th October, 1974 by the competent authority.
The
plaintiffs 6 and 7 filed Civil Suit No. 565/1974 for the redemption of the suit
land, which came to be dismissed on 13th December, 1976 by the Revenue Court. The appellant No. 1-defendant No. 1
in the present civil suit, was reluctant to release the suit land after receipt
of the amount of mortgage, so the plaintiffs-respondents instituted the present
suit impleading defendant Nos. 2-9 as proforma defendants- appellants herein as
they were not available at the time of filing of the earlier suit.
The
suit was resisted and contested by original defendant-appellantTundal (now
dead). The other defendants-appellants 3 to 5 and 7 to 10 in their written statement have
admitted the claim of the plaintiffs- respondents and also pleaded that they
are entitled to get their respective shares in the suit land after redemption.
The original defendant-Tundal raised preliminary objections inter alia that the
mortgaged amount was Rs. 2,200/- and not Rs. 825/-; the plaintiffs or defendant
Nos. 2 to 9 are not legal heirs of Smt. Mohori and as the plaintiffs' suit
under Section 4 of the Punjab Redemption of Mortgages Act, 1913 (for short
"the Act") was dismissed by the Court therefore, the right of redemption
of the plaintiffs had extinguished and, the suit of the plaintiffs was liable
to be dismissed. The main defence pleaded by the defendant No. 1 was that the
suit was time barred as the order of the Collector under the Act was recorded
on 30th July, 1974 and that the present suit was filed
after the stipulated period of one year. On the pleadings of the parties, the
Trial Court framed as many as ten issues, which were reproduced by the learned
Single Judge in his judgment and we do not think it necessary to reproduce them
again for unnecessarily burdening the record. The learned Trial Court passed
preliminary decree in favour of the plaintiffs for redemption of the suit land
subject to the condition of the payment of Rs. 825/- to defendant appellant
No. 1 on or before 28th
July, 1983.
Being
aggrieved against the judgment and decree of the Trial Court, defendant No. 1
preferred appeal which came to be dismissed by the First Appellate Court
confirming the judgment and decree of the Trial Court. Defendants- appellants
filed four Regular Second Appeals before the High Court, which came to be
dismissed by a single judgment and decree impugned in these appeals.
We
have heard Ms. Madhu Tewatia, learned counsel for the appellants and Mr. Arvind
Kumar, learned counsel for the respondents, who have taken us through the
relevant material on record. Ms. Madhu Tewatia, learned counsel for the
appellants submitted that the order of the Collector dated 13th July 1974 dismissing the suit of the
plaintiffs filed under Section 4 of the Act was based on merits after scrutiny
of the entire evidence placed on record by both the parties. As such, the
present suit was barred by limitation, as the suit was not filed within one
year of the dismissal of the petition by the Collector for redemption of the
mortgage land.
In
opposition to the contention of the learned counsel for the appellants, the
learned counsel for the respondents- plaintiffs urged that since all the three
courts below have recorded concurrent findings of fact on the legal issues as
well as the factual scenario of the controversy, therefore, this Court in
exercise of its jurisdiction under Article 136 of the Constitution of India
will not be obliged to interfere with the well-reasoned judgments of the courts
below. The First Appellate Court and the High Court have categorically held on
the assessment of the entire material on record that the Collector in exercise
of the jurisdiction under the Act has not recorded any finding on the merits of
the case.
We
have given our thoughtful consideration to the respective contentions of the
learned counsel for the parties and examined the judgments of the courts below.
Order dated 30th July
1974 recorded by the
Collector in the redemption proceedings is placed on record as Exhibit P8. It
is not in dispute that in the redemption proceedings filed by Khillu and others
under Section 4 of the Act, parties went to trial and led their respective
evidence in respect of their claims and counter claims. The Collector in his
order had noticed the various respective contentions raised by the parties in
respect to the notified shares of the plaintiffs' rights, if any, and also what
will be the effect of non-impleadment of some of the persons who have got
rights in the property in dispute and further whether the amount of mortgage
was Rs. 2,200/- as stated by the appellants-defendants or Rs. 825/- as pleaded
by the respondents-plaintiffs. After noticing their contentions/pleas raised by
the parties, the Collector came to the conclusion that since sufficient
evidence had not been laid by the parties, no finding could be recorded on the
merits of the case.
Accordingly,
the Collector came to the conclusion that the petition for redemption of
mortgage of the property in the present form would not succeed and so the same
was dismissed.
To
appreciate the contentions of the learned counsel for the parties, we propose
to refer to the relevant provisions of the Act. The scheme of the Act envisages
that if petition for redemption of the mortgage of the property is presented
before the Collector being a competent authority he shall deal with the matter
judiciously. Under Section 4 of the Act, the petitioner has to state the
particulars of the land mortgaged, the amount of mortgage and the factum of the
deposit of the mortgaged amount with the Collector. Section 5 provides that as
and when the petitioner has been duly presented and the deposit has been made,
the Collector has to issue summons to the mortgagees to appear on a date to be
specified therein.
Under
Section 8, the Collector has to enquire from the mortgagee whether he admits
that the petitioner is entitled and whether he is willing to accept the sum in
deposit in full payment of the mortgage debt and in case the mortgagee is in
possession whether he is willing to surrender possession of the mortgaged
property. If the mortgagee replies in the affirmative, the Collector is to pass
the order as laid down in Section 6(a), (b), (c) and (d) of the Act. In case,
the mortgagee admits the petitioner's title to redeem but demands payment of
sum larger than pleaded by the petitioner, the Collector has to enquire from
the petitioner whether he is willing to pay larger amount and in case the
petitioner answers in affirmative, the Collector shall fix a period not exceeding
30 days within which the petitioner is to deposit the difference and in case
the petitioner makes such a difference good, the Collector is to make order as
laid down in Section 6(a), (b), (c) and (d) of the Act. In default of deposit
of such amount within the prescribed time, the Collector is to dismiss the
petition. In case the mortgagee raises objection on any ground other than the
amount of deposit or if the petitioner is not willing to pay the sum demanded
by the mortgagee, the Collector can either dismiss the petition or make a
summary inquiry regarding the objection raised by the mortgagee as contemplated
under Section 9 of the Act. Thus, Section 9 of the Act envisages an inquiry by
the Collector with regard to the objection raised by the mortgagee. As noticed
above, in the present case, the net substance of the order of the Collector
dated 30th July, 1974 reveals that the said order was not
recorded on merits. Thus, the contention of the learned counsel for the
appellant that the suit was barred by limitation as the order of the Collector
was not challenged by the plaintiffs within one year does not merit acceptance.
Ms. Madhu Tewatia, learned counsel for the appellants, has made reference to
paragraph 6 of the judgment of this Court in Harbans Singh and Anr. v. Guran
Ditta Singh and Anr. [(1991) 2 SCC 523], which reads as under:- "6. It is
clear that an order passed by the Collector under Sections 6 to 11 is only
conclusive for what was decided therein and if the adjudication made by the
Collector in summary proceedings are sought to be reopened, certainly, unless
the order is got over, either by the mortgagor or by the mortgagee, or any
person claiming right, title or interest through them being an aggrieved person
within the meaning of Section 12, the order of the Collector binds the parties
or the persons claiming right, title or interest from the parties. Take for
instance, there is a dispute as in the present case about the mortgage money
before the Collector. Kala Singh disputed the money secured of hypothecation
but had compromised and agreed to pay the amount mentioned in the mortgage
bond, namely, Rs. 850- Rs. 10 in each of the mortgages disputed but in the suit
filed within one year he reiterated his original stand. Had the same stand been
taken by the respondents disputing the mortgage money, certainly it would not
be open to the respondents as successor in interest of the mortgagor to contend
that the money advanced under the mortgage was not Rs. 850, but something less.
That is not the case in the present suit. They agreed to pay Rs. 850 as decided
by the Collector and sought redemption in the civil suit. Thereby they are not
seeking to set aside the order of the Collector, but they are seeking
redemption of the mortgage. Take another instance where the mortgagor disputed
the execution or validity of the mortgage, bond itself and the finding was
recorded against the mortgagee, i.e. the mortgage bond was not either executed
or is void for being vitiated by fraud, coercion or undue influence, etc. The
mortgagor successfully avoided the mortgage by a specific order passed by the
Collector under the relevent provisions of the Act. If no suit was filed within
a period of one year, the findings of the Collector become conclusive between
the mortgagee and the mortgagor and it is not open to assail the order of the
Collector after one year in a suit of foreclosure or sale by the mortgagee.
Therefore,
what was prohibited by Section 12 is only the substance of the order and not
the form." The above extracted paragraph of the judgment lays down that if
no suit was filed within a period of one year, the findings of the Collector
become conclusive between the mortgagee and the mortgagor and it is not open to
assail the order of the Collector after one year in a suit of foreclosure or
sale by the mortgagee. Section 12 of the Act prohibits the substance of the
order and not the form in which the order is couched by the Collector. Even if
by the order, the petition is dismissed not the form of the order but the
substance will determine the application of the period of limitation prescribed
by the Limitation Act. In support of our view, we are fortified [(1969) 2 SCC
883]. In the facts and circumstances of the case and in the light of the
above-settled proposition of law, we do not find any perversity or illegality
in the judgment and decree of the courts below warranting interference in these
appeals.
In
result, for the foregoing reasons, the appeals are devoid of merits and are
dismissed accordingly. Parties are left to bear their own costs.
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