Dalip Singh vs Ram Singh

B. Rai, J.—Dalip Singh mortgagee filed Civil Suit No. 166 of 1976 against Ram Singh and others heirs of Bhana mortgagor for declaration that he has become full owner of the suit land as the time for redemption of mortgage has elapsed, while Ram Singh and another filed Civil Suit No. 123 of 1976 for redemption of land measuring 9 kanals 6 marlas fully described in the head note of the plaint as entered in the Jamabandi for the year 197071 situated in village Dehrka, Tehsil Jagraon, District Ludhiana, on payment of mortgage amount of Rs. 2,700/. Both the civil suits were decided by the trial Court vide his common judgment and decree, dated September 26, 1978. Civil Suit No. 166 of 1976 filed by Dalip Singh was dismissed, while in Civil Suit No. 123 of 1976, it was held that the defendants shall have the right to take possession of land in dispute on deposit of Rs. 2,700/ which shall be payable to the present plaintiffs and defendants 2 and 3, namely, Jit Singh and Ram Singh in equal shares.

Feeling aggrieved, Dalip Singh filed two appeals (Civil Appeal No. 625 of 1978 and Civil Appeal No. 628 of 1978). Both the appeals involving the same questions of fact and law were heard together and were dismissed with costs by a common judgment and decree, dated September 10, 1979 by the appellate Court.

For facility of reference, facts have been taken from Regular Second Appeal No. 2789 of 1979. One Bhana son of Chandu adopted son of Jita was in possession of suit land measuring 2 Bighas 19 Biswas as occupancy tenant. Bhana mortgaged his occupancy rights in the said land with possession for Rs. 2,700/ on June 13, 1943 in favour of Gulab Singh and delivered possession of the land to him. Mutation No. 4226 in respect of the said mortgage was sanctioned on February 10, 1945.

Gulab Singh mortgagee died and mutation of inheritance was sanctioned in favour of his son Bachan Singh share and his grandsons, Dalip Singh, Jit Singh and Ram Singh, sons of Bhajan Singh.

The Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 came into force on June 15, 1952, by virtue of which occupancy rights in the suit land were extinguished and Bhana who was occupancy tenant became owner of the suit land.

On July 17, 1976, Dalip Singh one of the mortgagees, filed Civil Suit No. 166 of 1976 against Bhana, impleading his comortgagees, namely, Jit Singh and Ram Singh as defendants 2 and 3 for declaration that he and his comortgagees Jit Singh and Ram Singh had become owners of the property in dispute and the right of defendant Bhana to redeem the land in dispute had been extinguished by efflux of time.

Bhana died during the pendency of the suit. His legal representatives, Ram Singh, Sher Singh, Harnam Kaur, Nasib Kaur and Gurcharan Kaur were brought on the record.

Jit Singh and Ram Singh being pro forma defendants did not contest the suit.

The suit was contested by other defendants. It was pleaded by them that the suit as framed, was not maintainable; that the plaintiff and his comortgagees were in possession of the suit land as mortgagees and therefore, they could not claim declaration that they were owners of the land in dispute; that the mortgage was subsisting, as the plaintiff and his comortgagees and their predecessorsininterest had always been admitting the subsistence of the mortgage in dispute and, therefore, they were estopped from claiming themselves to be owners of the suit land; that the period of redemption was extended for five years; that the right to redeem was not extinguished and the occupancy right, which vests in Bhana deceased, came to an end on June 15, 1952 on account of coming into force of Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952; and that Bhana, as owner of the land, could redeem the land within thirty years from June 15, 1952. Ram Singh and Sher Singh sons of Bhana filed a suit for redemption against Dalip Singh, Jit Singh, Ram Singh, the mortgagees impleading Harnam Kaur (widow) Nasib Kaur and Gurcharan Kaur daughters of Bhana as pro forma defendants. Both the suits were consolidated by the trial Court and proceedings were recorded in Civil Suit No. 166 of 1976 filed by Dalip Singh for declaration.

Following Issues were settled by the trial Court :

(1) Whether the plaintiff has become owner of the land as alleged in the plaint ?

(2) Whether the plaintiff is estopped by his act and conduct to file the present suit ?

(3) Relief.

On appreciation of evidence, Issue No. 1 was decided against Dalip Singh plaintiff, holding that on June 15, 1952, Bhana ceased to be the occupancy tenant of the land in dispute, as such, from that date the plaintiff should have filed suit for recovery of the mortgage amount or should have got executed a mortgage deed getting mortgaged the ownership rights from Bhana and that the plaintiff was not entitled to the declaration prayed for. Issue No. 2 was not pressed before the trial Court. Consequently, the suit for declaration was dismissed and the suit for possession by redemption was decreed on payment of Rs. 2,700/ to Dalip Singh plaintiff, Jit Singh and Ram Singh defendants in equal shares, leaving the parties to bear their own costs.

Both the appeals filed by Dalip Singh against the judgment and decree, dated September 26, 1978 of the trial Court were dismissed by the learned Additional District Judge, Ludhiana, vide judgment and decree, dated September 10, 1979.

Undaunted by the decisions of the Courts below, Dalip Singh has filed two Regular Second Appeals No. 2789 of 1979 and 56 of 1980.

Both the appeals arise out of one and the same judgment and decree; therefore, these shall be disposed of by a common judgement.

I have heard the learned counsel for the parties and have carefully gone through the record.

It is not disputed that Bhana was in possession of the suit land as occupancy tenant. He mortgaged the occupancy rights with possession for Rs. 2,700/ with Gulab Singh. On coming into force the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952, the occupancy rights extinguished and the occupancy tenants became full owners of the lands in their possession. It may also be noticed that mortgage was oral one and the mutation in respect of mortgage was sanctioned on February 10, 1945 in favour of the mortgagees. While deciding both the suits, it was observed by the trial Court that on June 15, 1952 Bhana ceased to be the occupancy tenant. As such, from that date the plaintiff should have filed the suit for recovery of the mortgage amount or should have got executed a new mortgage deed getting mortgaged the ownership rights from Bhana and concluded that plaintiff was not entitled to the declaration prayed for.

As regards the suit filed by Ram Singh and others for getting the land redeemed, it was held that the suit was within limitation as with effect from June 15, 1952 Bhana became owner of the land in dispute and had ceased to be the occupancy tenant. He could redeem the land within thirty years reckoning the limitation from June 15, 1952.

The learned counsel for the appellants referred to clause (a) of Article 61 of the Limitation Act and argued that a mortgagor can file a suit to redeem or recover possession of immovable property mortgaged within thirty years from the date when the right to redeem or to recover possession accrues. He also referred to Section 27 of the Act and submitted that 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. According to him in the instant case, the mortgage being usufructuary mortgage, the period of limitation commenced from the date, i.e. June 13, 1943 when the land in dispute was mortgaged. The mortgage being oral its mutation was sanctioned on February 10, 1945. Therefore, in any case the period of limitation started running with effect from February 10, 1945 and the mortgagor could file the suit on or before February 9, 1975, but the suit was filed by him in the year 1976. Therefore, viewed from any angle, according to the learned counsel, the suit for possession by way of redemption was clearly time barred and both the Courts below slipped in error in decreeing the suit of the successorsin interest of Bhana mortgagor.

On the other hand, it was argued by the learned counsel for the respondents that both the Courts below after proper appraisal of evidence fed by the parties have rightly found that suit for possession by way of redemption by the successorsininterest of Bhana mortgagor was found to be within limitation and that concurrent finding regarding limitation is a finding of fact which is not open to challenge in the Regular Second Appeal. In support of his contention, he has placed reliance on Dudh Nath Pandey (dead by L.Rs. v. Suresh Chandra Bhattasali (dead) by L.Rs, AIR 1986 S.C. 1509.

I have given my thoughtful consideration to the rival contentions and find sufficient force in the contentions raised by the learned counsel for the respondents. In Dudh Nath Pandey''s case (supra), the facts were that plot No. 1448 appertaining to Khata No. 516 was recorded in the record of rights Puratan Patit Anabad (old uncultivated Parti land) under Dhalbhum Raj. Suresh Chandra Bhattasali (since dead) filed a suit for declaration that the disputed land belonged to him and that the defendantappellant had no right, title or interest therein. He also claimed a relief of possession after demolition of walls and other structures raised thereon by the defendantappellant. The case set up by the plaintiff in the plaint was that before 1946 he approached the landlord Dhalbhum Raj for the settlement of the disputed land and after various enquiries, the land was ultimately settled with him on August 23, 1949. He was, however, permitted by Dhalbhum Raj to take possession even before the date of actual settlement. To the NorthWest of the disputed land, there is a piece of land forming part of the same plot which the plaintiff took on rent from the defendant. It was further alleged that on September 29, 1949, the defendant forcibly removed the barbed fencing which had been put by the plaintiff on all sides of the disputed land by settlement from the Dhalbhum Raj and started constructing walls so as to include the disputed land as well as the adjacent land taken on rent by the plaintiff from the defendant in one compound. This conduct of the defendant amounted to dispossession and so the plaintiff was obliged to file the said suit. That suit was contested. The trial Court dismissed the suit on the ground that the plaintiff had failed to prove his possession within twelve years of the suit and as such the suit was barred by time. The appeal preferred was dismissed by the Appellate Court on the finding that the defendant had acquired title by adverse possession. The matter was taken to the High Court in second appeal. The appeal was allowed and the judgment of the First Appellate Court was set aside holding that in the absence of any plea about the adverse possession in the written statement and in the absence of any issue on that question, the lower Appellate Court was not justified in recording a finding on the question of adverse possession. It was also found that the Appellate Court had not recorded any definite finding on the question of title of the plaintiff on the basis of settlement from Dhalbhum Raj. Consequently, the case was sent back to the Lower Appellate Court.

After remand, the suit was decreed by the First Appellate Court holding that plaintiff had acquired title over the disputed land by virtue of settlement from Dhalbhum Raj and was in possession of the suit land within twelve years of the suit. Defendant preferred second appeal. The appeal was accepted and again the case was remanded to the Lower Appellate Court, after taking into consideration the oral evidence led by the parties. The High Court, however, confirmed the findings on the question of title of the plaintiff on the basis of settlement from Dhalbhum Raj, on the defendant''s plea of acquisition of title by adverse possession and on the question of res judicata recorded by the Lower Appellate Court. Therefore, the First Appellate Court was not required to give any fresh decision on those points and the only question which was open to be considered by the First Appellate Court was whether the suit was barred by limitation under Article 142 of the Limitation Act. On remand, the Appellate Court found that the plaintiff''s claim was barred by limitation and accordingly allowed the appeal and dismissed the suit. Plaintiff took up the matter to the High Court again. The High Court reversed the findings of the First Appellate Court on the question of limitation relying on the socalled admission of the defendant in the written statement and the evidence of the witnesses produced on behalf of the defendant. Virtually, the High Court has made a fresh appraisal of the evidence and has come to a different finding contrary to the finding recorded by the First Appellate Court which the High Court could not do in the exercise of power under Section 100 of the Code of Civil Procedure. Their Lordships of the Supreme Court further held that as finding on the question of plaintiff''s title had become final it is no use dealing with this point any further and they had to confine themselves only on the question whether the suit was barred by time. But the finding on the question of limitation recorded by the First Appellate Court on appraisal of evidence after taking into consideration the entire circumstances in the case was a finding of fact which could not have been set aside by the High Court in the exercise of power under Section 100 of the Code of Civil Procedure.

Faced with this situation, the learned counsel for the appellants has cited a number of decisions of Supreme Court to argue that question of law can be raised at any stage. It can be raised even before the Supreme Court for the first time. The authorities cited cover the period prior to 1986. He has not cited any authority contra to the one relied upon by the learned counsel for the respondents. Dudh Nath Pandey''s case (supra) being the latest, has, therefore, to hold the field. After properly appreciating the evidence led by the parties, both the Courts below have found that Bhana mortgagor had only mortgaged his occupancy rights on June 13, 1943 and mutation was sanctioned on February 10, 1945. The occupancy rights came to an end on coming into force of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1952 and no occupancy rights were subsisting which could be redeemed by Bhana. By virtue of Act of 1952, his occupancy rights had matured into ownership. Therefore, he could get the land, the possession of which was given to Gulab Singh father of Dalip Singh mortgagee while mortgaging the occupancy rights. Therefore, both the Courts below came to the conclusion that if the period of limitation is reckoned from the year 1952, the suit filed by the successorsininterest of Bhana mortgagor in the year 1976 is clearly within limitation and the right of mortgagor to claim possession of the property had not extinguished by efflux of time.

In view of the discussion above, it is to be held that the suit filed by the mortgagors was not barred. This finding was recorded by both the Courts below after proper appreciation of the evidence. Therefore, in view of Dudh Nath Pandey''s case (supra), that concurrent finding of fact is not open to challenge in Regular Second Appeal.

Resultantly, the appeals fail and are dismissed. No costs.

Appeals dismissed.