Bedi alias Bhedi vs Girdhari (since deceased) and others

B.S. Yadav, J.

This judgment will dispose of the above appeal as well as R.S.A. No. 900 of 1977 Kanhar v. Girdhari as in both the appeals the facts and law point involved are practically similar.

The brief facts giving rise to these appeals are that the ancestors of defendant Nos. 1 and 2 in both the suits had created two mortgages in favour of the ancestors of the plaintiffs and defendant Nos. 3 to 7 more than 60 years prior to the filing of the suit, which was filed on 3rd May, 1972. One mortgage related to land measuring 25 Kanals 11 Marlas and the other to 21 Kanals 4 Marlas. The plaintiffs filed two suits, one in respect of each mortgage for a declaration that they and the proforma defendants had become owners of the land involved in each suit as it had not been redeemed within time. In that alternative they prayed for a decree to the effect that in case they were not proved to have become owners by lapse of time, it be declared that they and proforma defendants were in possession of the land involved in each suit as mortgagees and were entitled to retain their possession. It was also averred by the plaintiffs that they had come to know that in their absence the Revenue Officer had sanctioned mutations on 29th March, 1967 redeeming the mortgages. They were not present at the time the said mutations were sanctioned nor the redemption money was received by them. They were still in possession of the land.

Both the suits were contested by defendants No. 1 and 2 and in each suit the pleas taken by them were similar. They pleaded that there was relationship of landlord and tenant between the parties and, therefore, the jurisdiction of the civil Court was barred under the Punjab Tenancy Act, 1887. The plaintiffs were estopped from filing suits on account of their conduct. The land in each suit had been redeemed in 1965 and, therefore, the suits were barred by time. Mutations of redemption were rightly sanctioned and since then the plaintiffs were cultivating the land as tenants and not as mortgagees.

Upon the allegations of the parties the learned trial Court framed as many as 10 issues in each suit. It is not necessary to reproduce the above issues as only three points are relevant for the disposal of these appeals. Those points are, (1) whether the plaintiffs had become owners of the suit land by lapse of time prescribed for redemption of the mortgages, (2) whether the mortgages had been redeemed, and (3) whether the suits were within time. It may be mentioned here that there was no specific issue about third point but it was raised before the trial Court as well as before the lower Appellate Court and, therefore, I have allowed it to be raised before me also. On the first point the learned trial Court held that the plaintiffs had become owners of the land in each suit by lapse of time prescribed for redemption of mortgages. In that Court it was not disputed that the mortgages were created in 1902. On the second point it was held that the mortgage in each suit had not been redeemed and the alleged mutation in respect of each mortgage was null and void because the mortgagor''s rights to redeem the land had been extinguished by virtue of section 27 of the Limitation Act. On the third point it was held that the suits were barred by limitation. Accordingly, both the suits were dismissed by the trial Court. Feeling aggrieved, the plaintiffs filed separate appeals in the two suits, which were heard by the learned Senior Subordinate Judge (with Enhanced Appellate Powers), Gurgaon. Before him the only point that was agitated with respect to limitation. He also held that the suits were governed by Article 58 of the Limitation Act, 1963 and as the suits had been filed beyond three years from the date of mutations or the preparation of the Jamabandi for the year 196768, those were barred by limitation. He dismissed both the appeals. The plaintiffs have now filed these two appeals.

Both the learned Courts below have dismissed the suit of the plaintiffs in view of the observations made in Smt. Sharifan alias Shanti v. Ibrahim alias Dharam Vir, 1975 PLJ 293. However, in Letters Patent Appeal that judgment was reversed. The judgment in the Letters Patent Appeal is reported as Ibrahim alias Dharam Vir v. Smt. Sharifan alias Shanti, 1979 PLJ 469. The Letters Patent Bench remarked :

``It may be observed at the outset that the word `first'' occurring in Article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar and in case such an entry furnishes a cause of action, then certainly the suit would be barred by limitation. Even Mr. Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of mutation did not furnish any cause of action and in support of his contention he relied on a Division Bench judgment of this Court in Niamat Singh v. Darbari Singh etc., 1956 P.L.R. 461. In our view, the contention of the learned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of her father Akbar or her mother Smt. Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land of her share. In this situation, no cloud was cast on the title of the plaintiff by mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April 1969, by any act or assertion of the defendant the right of the plaintiff was ever actually jeopardised. The defendant is occupying a house in the village. The assertion of the plaintiff is that it was given by him to her out of compensation, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant after the sanction of the mutations never asserted her right to her share in the land in dispute, nor did she ever get any rent or produce and that it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. This view of ours finds full support from the judgment of the Division Bench in Niamat Singh''s case. Thus, we do not agree with the learned Singh Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the suit filed by the plaintiff is within limitation.''''

The above observations clearly apply to the present case. Even after the sanction of the mutation of redemption, the plaintiffs remained in possession of the suit land. The plaintiffs could ignore the entry of mutations in favour of the contesting defendants. It is an admitted fact that mutations is not a document of title. The plaintiffs could come to Court at any time when there was a threat to their possession. According to the plaintiffs, the contesting defendants were now intending to take possession of the suit land. Therefore, their suits are clearly within time.

It may be mentioned here that the plaintiffs'' contention is that the mutations of redemption were sanctioned in their absence while the defendants'' contention is that those were sanctioned in the presence of the mortgagees. Even if we accept the defendants'' contention, it does not give them any right to the land. As noticed above, mortgages were effected in 1902. The mutations of redemption were sanctioned in 1967 i.e. more than 60 years which was the period prescribed under the Limitation Act, 1908 for redemption of mortgages. Section 28 of the said Act reads as follows :

``At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.''''

Thus at the time of alleged mutation, the mortgagors'' right to redeem the mortgages had come to an end. In this respect reference can be made to Yashwantrao Laxmanrao Ghatgae v. Baburao Bala Yadav (dead) by L. Rs., AIR 1978 Supreme Court 941, wherein it was remarked :

``The effect of S. 28 of the Limitation Act was that right to the property was extinguished resulting in conferment of a title by adverse possession on the persons in possession of the concerned properties. It is wellknown that the effect of S. 28 of the Limitation Act is not only to bar the remedy but also extinguish the right. The right to the property itself was dead and gone.''''

In Ram Murti v. Puran Singh son of Attar Singh, AIR 1963 Punjab 393, it was remarked :

``So far as the plaintiff''s title to the land was concerned, it had been extinguished by virtue of the provisions of Section 28 of the Indian Limitation Act, because defendants 9 to 12 remained in adverse possession of the land in dispute for the statutory period of 12 years. It is true that defendants 9 to 12 gave up possession of the land in dispute in favour of defendants 1 to 8, but that would not, in any way, revive the title of the plaintiff. In this contention, I am supported by a Division Bench decision of the Rangoon High Court in Mg. San Shin v. Mg. Maung, AIR 1926 Rang. 95. If the plaintiff had proved that he entered into possession after defendants 9 to 12 had left the land and was then dispossessed by defendants 1 to 8, who had admittedly no title to the land, then he could not bring a suit on the basis of his title, because after the expiry of the statutory period even a true owner''s title is not revived by his reentry (vide Mahmudunnissa v. Zahid Raza, AIR 1925 Oudh 20)''''.

From Ist January, 1964 Limitation Act, 1963 came into force. Section 27 of the said Act is similar to section 28 of the Old Act. Section 27 came for interpretation in Jawahar Lal Motumal Mamtani v. Bhagchand Motumal Mamtani, AIR 1981 Delhi 338, wherein it was remarked :

``Relying on East and West Steamship v. S.K. Ramalingam, AIR 1960 S.C. 1058, the counsel submits that there is a distinction between the extinction of a right and the extinction of a remedy for the enforcement of that right, though the distinction is fine yet it is of great importance. Section 3 of the Limitation Act, 1963 provides a bar of limitation and every suit instituted after the period prescribed is to be dismissed although limitation has not been set up as a defence. In those cases, the right is not extinguished but the right to claim the relief is not enforceable because of the bar of limitation. In case of immovable property on the determination of the period limited to any person for instituting a suit for possession of any property, his right to such property gets extinguished.''''

Thus even if the plaintiffs agreed to redeem the mortgages, the mortgagors'' right would not be revived. Section 27 of the Limitation Act, 1963 not only bars the remedy but also extinguishes the title.

The learned counsel for the contesting respondents argued that the plaintiffs could give up the benefit which they had obtained under section 28 of the Old Limitation Act and it cannot be said that the said agreement by the plaintiffs was against public policy. In support of his contention he has cited Lachho Mal v. Radhey Shyam, AIR 1971 Supreme Court 2213, wherein it was remarked :

``We are unable to hold that the performance of the agreement which was entered into between the parties in the present case would involve an illegal or unlawful act. In our judgment S. 1A was meant for the benefit of owners of buildings which were under erection or were constructed after January 1, 1951. If a particular owner did not wish to avail of the benefit of that section there was no bar created by it in the way of his waiving or giving up or abandoning the advantage or the benefit contemplated by the section. No question of policy, much less public policy, was involved and such a benefit or advantage could always be waived. That is what was done in the present case and we are unable to agree with the High Court that the consideration or object of the agreement entered into between the parties in June 1962 was unlawful in view of S. 23 of the Contract Act.''''

That ruling has no application to the present case. The mortgagors'' rights to redeem the mortgage had come to an end and that right could not be revived even by consent of the parties. In fact, as noticed earlier, in the present case the mortgagees have continued in possession of the lands upto this day. It may be mentioned here that the mortgagors'' plea is that after redemption the mortgagees had continued in possession of the lands in question as tenants. There is no satisfactory evidence in support of that plea. That plea did not find favour even with the learned Courts below. Thus the plaintiffs continued in possession of the suit land as mortgagees even after the sanction of the mutations. In the Jamabandi for the years 196768 the plaintiffs are recorded in possession of the suit land and in column No. 9 the entry is Bashra Malkan Bawaja Rehan.

For the foregoing reasons it is held that both the suits were within limitation. Accordingly, both the appeals are accepted and the judgments and decrees of the learned Courts below in both the suits are set aside and both the suits are decreed. In each case a decree for declaration is passed in favour of the plaintiffs and against the contesting defendants/defendant to the effect that they and the proforma defendants have become owners of the suit land as the right of redemption has been extinguished by lapse of time. In the circumstances of the case both the parties are left to bear their own costs throughout.