Mohinder Singh Vs. State of Punjab & Ors  Insc 64 (23 January 2007)
Sinha & Markandey Katju (Arising out of Slp (C) No. 17736 Of 2003) S.B. Sinha,
an order dated 28.08.2002 passed by the Financial Commissioner (Revenue), Punjab, the appellant herein filed a writ
petition before the Punjab and Haryana High Court which by
reason of the impugned judgment dated 10.04.2003 has been dismissed.
fact of the matter is as under:
Ram s/o Hira, resident of Kotla Power House, Tehsil Anandpur Sahib District Ropar,
Punjab mortgaged 38 K 14 M of land with the appellant and his brother Lachman
Singh in equal shares on receipt of a sum of Rs. 425/-. On consolidation of the
land, new Khasra Numbers 159, 160, 536, 538, 541, 545, 546, 547 and 549 were
carved out in lieu of the old Khasra Numbers.
herein claimed that he and his brother had been put in possession of the said
mortgaged land. Without, however, redeeming the mortgage, Telu Ram again
mortgaged the said land in favour of Harjap Singh, Sohan Singh, Surjit Singh
and Manjit Singh. In the said deed of mortgage dated 21.11.1978, it was
now mortgage 1/4th of the said land to Harjap Singh son of Shri Jagat Singh,
judgment and order dated 28.04.1992, the Collector directed redemption of the
said mortgaged property. It is not in dispute that the purported receipt dated
20.02.1979 had not been brought on records in the said proceedings.
contention of the appellant that the same could not be done as he or his
brother were not parties in the said proceedings, however, appears to be
misplaced as it is stated at the bar that the endorsement was made in the deed
of second mortgage itself.
civil suit was filed by Harjap Singh and others questioning the said order of
the Collector dated 28.04.1992. A decree was passed but an appeal thereagainst
was filed by the heirs and legal representatives of Telu Ram before the
District Judge, Ropar which was allowed by an order dated 03.03.1997. A second appeal
preferred by the said Harjap Singh and others has been dismissed by the High
of the lands in the mean time were sold by the heirs and legal representatives
of Telu Ram in favour of Bhagat Singh and others who filed an application
before the Assistant Collector, 1st Grade, Anandpur Sahib, District Ropar for
possession of the lands in terms of the order of the Collector dated
28.04.1992. Objections filed by the appellant in the said proceedings were
rejected. However, an appeal was preferred thereagainst by the appellant which
by reason of a judgment and order dated 11.06.2002 was allowed. A second appeal
preferred by the respondents herein before the Financial Commissioner Revenue,
as indicated hereinbefore, was accepted.
not in dispute that the second mortgagees were the family members of the
appellant and his brother.
also not been disputed that the matter had come up for consideration before
this Court on an earlier occasion from a judgment and order passed by the High
Court in the second appeal and the said special leave petition was dismissed.
The direction for redemption of mortgage issued by the Collector, therefore,
contention of the appellant, that keeping in view of the fact that the first
mortgage was not redeemed, the second mortgage could not have been directed to
be redeemed, in the facts and circumstances of the case, is misconceived.
the conduct of the parties, it is evident that while creating the purported
second mortgage, the first mortgage was redeemed. Harjap Singh is the brother
of Mohinder Singh, Sohan Singh is the son of Lachman Singh, Surjit Singh and Manjit
Singh are the sons of Mohinder Singh. The second mortgage deed was registered.
There was no reason why it was not acted upon.
story that the aforementioned sum of Rs. 425/- was taken back from the
mortgagees by said Telu Ram admittedly had not been proved. It has been
accepted before us that the said contention had not been raised in the earlier
proceedings. On our query as to whether the said receipt had been exhibited
before the concerned authorities, it has been accepted that the said receipt
was not duly proved and marked as an exhibit in the proceeding before the
civil suit, a finding of fact had been arrived at that the order for redemption
in favour of Telu Ram and Radha Krishan was valid in law. As indicated
hereinbefore, the said decree passed by the Civil Court attained finality.
of the learned counsel for the appellant that the factum in regard to the
issuance of the said receipt having not been brought on records in the earlier
proceedings, the impugned order cannot be sustained, in our opinion, is wholly
fallacious. If the receipt in question dated 20.02.1979 was to be brought on
record, it was for the appellant to do so. He having failed to do so, in our
opinion, now cannot be permitted to turn round and contend that the said
receipt should be taken into consideration by this Court.
Financial Commissioner in his order dated 28.08.2002 has taken into
consideration all aspects of the matter. It has been found that miscarriage of
justice had taken place.
in view the factual background obtaining in this case, we have no hesitation to
hold that the appellant herein had raised unnecessary objections in execution
of the order of redemption passed by the Collector.
otherwise, the contention of the appellant is evidently barred by the
principles of constructive res judicata. In any event, the said purported
receipt having not been proved in accordance with law, no reliance can be
the reasons aforementioned, there is no merit in his appeal which is dismissed
accordingly with costs. Counsel's fee assessed at Rs. 25,000/-.