Ajit Singh and Others vs Kirpal Singh and Others

Viney Mittal, J.—The plaintiffs are in appeal to this Court against the judgment and decree dated January 2, 1980 passed by the learned District Judge, Faridkot whereby the judgment and decree dated March 8, 1979 passed by the learned Sub Judge 1st Class, Moga was reversed and the suit for possession by way of redemption filed by the plaintiffs was dismissed.

Facts,

A suit for possession by way of redemption of land measuring 27 kanals 1 marla as detailed in plaint was filed by the plaintiff-appellants (hereinafter referred to as the plaintiffs). It is the case of the plaintiffs that they are the owners as well as the mortgagors of the suit land and the defendants are recorded as mortgagees. Originally, the land as mortgaged by Santa Singh, Malkit Singh, Jagir Singh, Ajit Singh and Dalip Singh. Plaintiffs No.l to 3 are the original mortgagors whereas the remaining plaintiffs are the successors-in-interest of the original mortgagors. The land was mortgaged with Tara Singh son of Sobha Singh. The defendants are the successors-in-interest of Tara Singh deceased. According to the plaintiffs, some land out of the suit land was mortgaged on December 14, 1948. More land was mortgaged on June 14, 1948. Additional mortgages were executed on June 6, 1949 registered on June 12, 1949 and on June 13, 1950. Whereas the land was originally mortgaged for Rs. 4,000/- the additional mortgages were for an amount of Rs.1,100/-. The plaintiffs pleaded that the suit land was allotted in lieu of the land originally mortgaged during consolidation. Accordingly, the present suit for redemption was filed.

The defendants-respondents (hereinafter referred to as the defendants) contested the suit. A written statement was filed by them taking an objection that the suit was barred by limitation. It was further stated by the defendants that an application for redemption of the suit land had been filed by the plaintiffs on June 12, 1974 with the Col- lector, Moga under the provisions of the Punjab Redemption of Mortgagees Act and vide order dated April 3, 1975 the said application has been dismissed. Various other objections had been taken. It was also stated that the right of redemption of the mortgagors had lapsed by efflux of time i.e.after the expiry of 30 years. The ownership of the plaintiffs was also challenged. The stand of the defendants was that they had become owner of the suit land as the right of redemption stood extinguished by the lapse of time. The defendants stated that the plaintiffs be called upon to prove the execution of the additional mortgages. It was also stated that Lal Singh defendant had no authority to acknowledge the mortgage on behalf of other mortgagees and any acknowledgement on his behalf was not binding upon the other defendants,

The learned trial Court vide its judgment and decree dated March 8, 1979 decreed the suit filed by the plaintiffs. On the basis of evidence a finding was given that the plaintiffs were mortgagors of the suit land and the defendants were the mortgagees thereof. It was further found that the suit land had been allotted in lieu of the land during the consolidation of holdings and, therefore, it could be taken that the land in dispute was the same which was originally mortgaged. The plea raised by the defendants with regard to their having become the owners by efflux of time or the suit being barred by limitation were negativated by the learned trial Court. On the basis of the aforesaid findings, the plaintiffs remained successful.

The defendants took up the matter in appeal before the first appellate Court. Various findings given by the learned trial Court were challenged by them. The learned first appellate Court vide its judgment and decree dated January 2, 1980 agreed with the challenge made by the defendants and accordingly reversed the judgment of the learned trial Court. Resultantly, the suit filed by the plaintiffs was dismissed. The learned first appellate Court held that the additional mortgages could not be treated to be acknowledgement within the meaning of Section 18 of the Limitation Act. On that basis, it was held that the original period of redemption of 30 years having since expired, the suit for redemption filed by the plaintiffs was not maintainable. It was further held by the leaned first appellate Court that an order had been passed by the Collector on April 3, 1975 dismissing the application for redemption filed by the plaintiffs. In spite of that the present suit had been filed by the plaintiffs on September 15, 1977 i.e. after the expiry of one year from the date of the order passed by the Collector. On that basis, the learned first appellate Court held that the suit having not been brought within the statutory period of one year was barred by limitation.

The plaintiffs are aggrieved against the aforesaid judgment and decree passed by the learned District Judge dated January 2, 1980 and have approached this Court through the present regular second appeal.

I have heard Ms. Sweena Pannu, the learned counsel for the appellants and Shri Sanjay Majithia, the learned counsel for the respondents and with their assistance have gone through the record.

Ms. Sweena Pannu, the learned counsel for the appellants has submitted that the findings recorded by the learned first appellate Court are totally contrary to the record and are also based upon mis-conception of the provision of the Punjab Redemption of Mortgagees act. The learned counsel for the appellants has further submitted that it was clear from the documentary evidence on the record that originally the land was mortgaged on December 14, 1943 and June 14, 1948 and subsequently additional mortgages were effected on June 6, 1949 and on June 13, 1950. In these circumstances, the present suit having been filed on September 15, 1977 could not be treated to be time barred, nor it could be held that the aforesaid right of redemption had lapsed by efflux of time.

On the other hand, Shri Sanjay Majithia, the learned counsel for the respondents has submitted that the findings recorded by the learned first appellate Court were totally as per the record and since the suit had been filed beyond the expiry of 30 years from the dates of the original mortgages and since the original mortgages were not shown to be extending the limitation in any manner, therefore, the suit had been rightly dismissed by the learned first appellate Court.

After having given my thoughtful consideration to the entire matter, I find that the present appeal deserves to succeed.

Dealing with the objection of the defendants regarding the suit being beyond the statutory period of one year as provided under the provisions of the Punjab Redemption of Mortgagees Act, it is clear that while passing the order dated April 3, 1975 Ex. D1 the learned Collector had observed that issues involved in the case were complicated questions, therefore, the said questions fell in the purview of the Civil Court. Apparently, this order does not fall u/s 9 of the Punjab Redemption of Mortgages Act and, therefore, was not required to be challenged u/s 12 of the Punjab Redemption of Mortgagees Act within a period of one year. Thus, the observations made by the learned first appellate Court in dismissing the suit on this ground cannot be legally sustained.

Coming to the main objection raised by the defendants to the effect that the suit for redemption having been filed after the expiry of 30 years was not maintainable and that they had become owners by efflux of time, it may be noticed that admittedly Santa Singh, Malkit Singh, Jagir Singh, Ajit Singh and Dalip Singh had mortgaged the land in question with mortgagee Tara Singh on December 14, 1943 and subsequently on June 14, 1948. The land was mortgaged for Rs.4,000/-. Subsequently, two additional mortgages were executed by the mortgagors on June 6, 1949 and June 1, 1950. The aforesaid additional mortgage deeds are Ex-Pi and Ex. P2 respectively on the record. The main controversy raised by the defendants with regard to the aforesaid additional mortgages is as to whether the aforesaid mortgages constituted acknowledgement in terms of Section 18 of the Limitation Act or not and whether the aforesaid additional mortgages brought the present suit within limitation.

The learned first appellate Court has observed that the aforesaid two additional mortgages were executed by one of the mortgagees Lal Singh and on that basis alone it has observed that one of the mortgagees could not extend the period of limitation.

I have perused the documents Ex.PI and Ex.P2 executed on June 6.1949 and June 13, 1950. The aforesaid two documents are the mortgage deeds executed by the mortgagors with regard to the land in dispute which was already under mortgage vide mortgage deeds dated December 14, 1943 and June 14, 1950.

From a perusal of the aforesaid documents, it emerges out that the aforesaid additional mortgages were created not in favour of Lal Singh but in favour of the son of the original mortgagee Tara Singh, who had died since then. Thus the terms of the aforesaid mortgage deeds. Ex.PI and Ex.P2 make it abundantly clear that for all intents and purposes the terms and conditions of the original mortgages were to remain the same and were to continue to operate but only an additional amount of mortgage, namely, Rs.600/- for mortgage dated June 13, 1950 (Ex.Pl) and Rs.500/- for the mortgage dated June 6, 1949 (Ex.P2) was obtained.

In the additional mortgage deed Ex.P.I the factum of original mortgage has specifically been mentioned therein and it has been mentioned as follows:

"Tara Singh, mortgagee has already died. Lal Singh, Bhag Singh, Kirpal Singh and Manna Singh sons are his heirs. Now, in order to meet personal necessities we the executants, while enjoying right senses and good intellect have additionally mortgaged the above said land (already under mortgage) with Lal Singh etc. mortgagees for a sum of Rs.600/- half of which comes to Rs.300/- on the terms and conditions of the previous mortgage deed. It is further stated that the terms and conditions of the previous mortgage deed would also be applicable in case of the present mortgage deed. We would get the land redeemed on payment of additional mortgage amount together with initial (previous) mortgage amount in lump-sum...." Statements to the similar effect has been made in additional mortgage deed Ex.P.2 dated June 6, 1949.

From the aforesaid reading of the said statement in the additional mortgage deeds Ex. PI and Ex.P2 it is apparent that the additional mortgages were not created only in favour of Lal Singh but in favour of all the heirs of the original mortgagee Tara Singh, who had since died and were intended to be in continuation of the original mortgages, it is apparent that the learned first appellate court has completely mis-read and mis-interpreted the aforesaid document Ex.PI and Ex.P2 and, therefore, obviously has fallen into an error while returning the findings in this regard. In these circumstances, the findings recorded by the learned first appellate court with regard to the additional mortgages being not constituting an acknowledgement within the meaning u/s 18 of the Limitation Act are clearly a finding which are perverse being contrary to the evidence on the record. The said additional mortgages did constitute a valid acknowledgement and extended the period of limitation for redemption.

Even otherwise, if the second mortgage dated June 14, 1948 is taken into consideration, then the present suit filed on September 15, 1977, cannot in any manner be treated to be barred by limitation. This aspect of the matter has been completely lost sight by the learned first appellate Court.

19 In my considered opinion, following substantial question of law arises for consideration in the present regular second appeal:- Whether the findings of fact recorded by the learned first appellate Court being perverse were not able to be set aside inasmuch as the said findings were based upon mis-reading and mis-interpretation of the documentary evidence.

In view of the law laid down by the Apex Court in Kulwant Kaur and Ors. v. Gurdial Singh Mann (dead) by LRs and Ors. (2001)128 P.L.R.492 (S.C.), I have no hesitation in allowing the present regular second appeal.

Thus, while allowing the present regular second appeal, the judgment and decree of the learned first appellate Court dated January 2, 1980 are hereby set aside and the judgment and decree dated March 8, 1979 of the learned trial Court dated March 8, 1979 are hereby restored and as a consequence thereof, the suit filed by the plaintiffs succeeds with no order as to costs.