Bachittar Singh (Deceased) and Others vs Maya Devi and Others

N.K. Kapoor, J

This is unsuccessful defendant''s regular second appeal against judgment and decree of the Additional District Judge whereby the judgment and decree of the trial Court has been affirmed.

Briefly put, Brij Lal, now represented by his legal representatives filed a suit for declaration that he has become owner of the suit land as right of redemption stands extinguished with a further declaration that mortgage deed dated 14.6.1971 executed by defendant Bachittar Singh in favour of Sewa Singh was not binding on the plaintiff as Bachittar Singh had no right or title to execute the mortgage deed after the extinguishment of his rights in the suit property.

Defendants put in appearance, filed written statement and contested the claim set up by the plaintiff.

On the pleadings of the parties, the following is sues were framed: -

(1) Whether the suit land was mortgaged by Bishna with Raunak for Rs.1750/-? If so when? OPP.

(2) Whether the plaintiff is the successor-in-interest of Raunak ? OPP.

(3) Whether the right of redemption has been extinguished ? If so, to what effect? OPP.

(4) Whether the mortgage in favour of defendant No. 2 by defendant No. 1 is without any right or title and is ineffective as against the rights of the plaintiff ? OPP.

(5) Whether the plaintiff is in possession of the suit land ? OPP.

(6) Whether the plaintiff is entitled to the injunction prayed for ? OPP.

(7) Relief.

Subsequently, the following additional issues were also framed :-

(6-A) Whether the suit for declaration does not lie as alleged in preliminary para No. 1 of the amended written statement ? O.D. 1.

(6-B) Whether the suit does not lie on the ground alleged in additional para 1 of the amended written statement ? OPD 1

(6-C) Whether the defendant No. 1 has become owner of mortgagee rights of the suit land by adverse possession for more than 12 years ? OD 1

Parties were permitted to adduce evidence in support of the pleas raised. The trial Court on the basis of evidence adduced came to the'' conclusion that Bishna father of defendant No.1, mortgaged the suit land in favour of Raunak Raml the predecessor-in-interest of the plaintiffs for a sum of Rs. 1,654/-, which fact finds recorded in the copy of jamabandi for the year Samat 1974-75 (B.K.). In subsequent entries in revenue record too this entry stands incorporated whereas the amount of mortgage is recorded as Rs. 1,750/-. On the death of Raunak Ram mutation was sanctioned in favour of Charanji Lal son of Tilku on 2.4.1956 and on the death of Charanji Lal mutation No. 1976 was sanctioned in favour of Brij Lal. In copies of jamabandi for the year 1969-70, exhibit P-14, Brij Lal is shown as mortgagee in place of his father Charanji Lal. It is on the basis of these entries in revenue record that plaintiff laid claim to the suit property stating that as the land mortgaged has not been redeemed within the prescribed period of limitation, the defendant''s right to, get it redeemed stands extinguished. According to the plaintiff, in view of the Limitation Act of 1963 suit could only be filed by January 1,1971 and not later. This main issue was decided in favour of the plaintiffs. Resultantly, the Court held that subsequently executed mortgage deed in favour of Sewa Singh-defendant on 14.6.1971 does not confer any right upon him nor it affects in any manner the rights of the plaintiffs. Accordingly, suit of the plaintiffs was decreed holding that the plaintiffs have become owners-in-possession of the suit land and that right of redemption stands extinguished. It was further held that mortgage deed dated 14.6.1971 in favour of Sewa Singh-defendant is without any right or title and as such does not bind the plaintiffs.

Lower appellate Court, once again examined the matter but found no ground to vary or reverse the findings recorded by the trial Court and accordingly dismissed the appeal.

The learned counsel for the appellant after briefly narrating the factual aspects, which have already been noticed, argued that suit filed by Brij Lal was not competent. According to the counsel, Raunak Ram had two daughters, namely, Maya Devi and Vidya Devi. Vidya Devi is dead whereas Maya Devi is alive. Thus, in the presence of Maya Devi no rights accrued to Brij Lal, in the property left by Raunak Ram. In fact, Brij Lal admitted in his statement that Raunak Ram had two daughters. This way, Brij Lal had no locus standi to file the present suit and on this score alone the appeal merits acceptance. Counsel further urged that with a view to adduce this evidence on record, an application under Order 41 Rule 27 CPC has been filed and so prayed that the application be accepted and in case the other party contests, an opportunity be afforded to the appellant to adduce evidence in respect of the plea advanced.

Counsel for the respondents on the other hand argued that appeal being wholly devoid of merit deserves to be dismissed. According to the counsel, defendant in his written statement has nowhere raised the plea, which he now intends to raise by way of additional evidence. Precisely for this reason no issue was claimed by the defendant and so the same was not framed by the trial Court. Otherwise too, even as per document exhibit P-2, copy of mortgage deed dated 14.6.1971, vide which Bachittar Singh-defendant had mortgaged the property to Sewa Singh clearly makes mention that the suit land is already under a mortgage to Brij Lal son of Charanji Lal. Defendant, thus, has admitted Brij Lal to be the mortgagee of the suit land and so now cannot be permitted to raise a contradictory plea and that too without any firm foundation.

I have heard the learned counsel for the parties as well as perused the judgments of the Courts below. Brief facts have been noticed. Admittedly, the property was mortgaged by Bishna, prcdecessor-in-interest of the present appellant to one Raunak Ram son of Bishna Mal predecessor-in interest of the plaintiffs for a sum of 1,750/-. This mortgage finds incorporated in the jamabandi for the period Bikrajpi 1994-95. On the death of Raunak Ram mortgagee, rights were mutated in favour of Charanji Lal and on the death of Charanji Lal these rights were mutated in favour of Brij Lal.

Earlier the period to redeem the land was 60 years. On coming into enforcement, of Limitation Act of 1963 this period was reduced to 30 years. However, as per Section 30 of the Act, another five years were given to the affected party, whose period for redemption stood curtailed. Subsequently, by an amendment another two years period was given to such persons and so such a property at best could be redeemed by filing a suit on or before January 1,1971. Concededly, no suit had been filed by the defendant till the plaintiffs approached for a declaration. Thus, there is no manner of doubt that the defendant''s right to redeem stood extinguished.

Whether Brij Lal succeeded to the estate of Charanji Lal or the property ought to have been mutated in favour of Maya Devi is another point under consideration. Concededly, no grievance was made by the present appellant when the mortgagee rights were mutated in favour of Charanji Lal on the death of Raunak Ram. Similarly, no grievance was made when the mortgagee rights were mutated in, favour of Brij Lal on the death of Charanji Lal. Not only this, the appellant on his own accepted this fact as is clear on perusal of mortgage deed exhibit P-2 dated 14.6.1971 executed by Bachittar Singh in favour of Sewa Singh. Courts below on the basis of evidence have, thus, come to a correct conclusion that Brij Lal succeeded to the estate of Charanji Lal, who in turn succeeded to the property left by Raunak Ram. Maya Devi at no time had laid claim to the property. No objection with regard to non-impleading of Maya Devi, alleged daughter of Raunak Ram, was even taken in the written statement. Thus I find no merit in the application filed by the appellant under Order 41 Rule 27 CPC. As discussed, evidence adduced by the plaintiffs clearly establish that they have perfected their title as the property has not been redeemed within limitation.

Thus, finding no merit in the appeal the same is dismissed. No costs.