Devi Saran vs Anant Ram and Others

A.L. Vaidya, J.—The Respondent-Plaintiffs filed a suit for redemption of mortgage with respect to property forming half share of land comprised in khata No. 10 khatauni Nos. 12 and 13, consisting of two parcels each bearing Khasra number 191 min, situated in village Bharayal Pargana Kaimali, Tehsil and District Shimla, together with a doubled storeyed house standing thereupon. This suit was filed against Smt. Malti proforma Respondent No. 3. It was alleged that the suit property had been mortgaged with possession with Smt. Malti by their predecessor, Shri Parsu, through an oral mortgage and the mutation of the same was attested on 16.3.1969 and it was further pleaded that the mortgage money was to the tune of Rs. 1250/-. According to the Plaintiffs, Smt. Malti had derived more than double the benefit from the said property and therefore, they were entitled to the redemption of the same without payment of anything.

Smt. Malti initially contested the claim of the Plaintiffs and raised various preliminary objections besides contesting their claim on merit. She pleaded that the house on the property had been constructed by her, after mortgage, by spending a sum of Rs. 8000/- and it was further averred that she had become the owner of the property by adverse possession. However, later on she made a statement conceding the claim of the Plaintiffs. This statement was made on 23rd May, 1986. She stated that she was prepared to deliver the possession of the property to the Plaintiffs provided they pay to her a sum of Rs. 1250/-, which was the mortgage money.

The present Appellant was added as Defendant No. 2 in the original suit when he moved an application under Order 1 Rule 10 of the CPC before the trial court that he was a tenant in possession of the suit land under the owners and, therefore, he was a necessary party to the suit. The said application was allowed and as a consequence thereof he was impleaded as Defendant No. 2. He put in his written statement wherein he took Various preliminary objections but on merit his case had been that he had been inducted as a tenant by late Shri Parsu Ram and thereafter he developed the suit property and enhanced its value materially by spending a good deal of money. He further alleged that he had been inducted as a tenant prior to the creation of mortgage in favour of Defendant No. 1 and that the possession of the suit property had never been with Defendant No. 1, Smt. Malti. He further pleaded that he could not be evicted because of his tenancy rights, claimed under the mortgagor, on redemption of mortgage even.

The parties were put to trial on the following Issues by the trial court:

Whether the Plaintiffs are entitled to redeem the suit land alleged in the suit? OPP

Whether there is no relationship of mortgagor and mortgagee between the

parties? If so, its effect? OPD

Whether the suit is bad for non-joinder of necessary parties? If so, its effect? OPD

Whether the Plaintiffs are estopped from filing the present suit due to their acts, conduct and acquiescence? If so, its effect? OPD

Whether the Plaintiffs are entitled to redeem the mortgaged land without any - payment of the amount of improvement in case the Defendant is held to be mortgagee? OPP

Whether the Defendant has become owner of the mortgaged land by virtue of contract of the sale dated 10th January, 1970? If so, its effect? OPD

In case the Defendant is not held to be owner by virtue of sale dated 10th Jan., 1970, has he become owner in possession by way of adverse possession? If so, its effect? OPD

7A Whether Defendant No. 2 is a tenant over the suit land, as alleged? If so, its effect? OPD2

Relief.

The trial court came to the conclusion that the suit land was held by Defendant No. 2 as a tenant even prior to the creation of the mortgage in favour of Defendant No. 1 and, therefore, the Plaintiffs were not entitled to take possession back from him. As such, the learned Sub Judge, while decreeing the suit of the Plaintiffs against Defendant No. 1, declined to pass a decree for possession of the suit property against Defendant No. 2.

The aforesaid judgment and decree were assailed before the first appellate court on various pleas and the learned District Judge, after hearing the parties, accepted the appeal and set-aside the judgment and decree of the trial court to the extent that the Plaintiffs were not entitled to possession of the suit land and as a consequence thereof a preliminary decree of redemption of mortgage was passed and it was ordered that the Plaintiffs should deposit the mortgage money to the tune of Rs. 1250/- in case the same has not already been deposited within two months from the date of the judgment. The Defendants shall deliver the vacant possession of the suit property to the Plaintiffs. The first appellate court came to the conclusion that the plea of Defendant No. 2 that he was inducted as a tenant by the original owner-mortgagor, was not accepted.

The aforesaid judgment and decree passed by the first appellate court have been assailed in the present appeal on various grounds.

I have heard the learned Counsel for the parties and have also gone through the records.

The sole point contended before this Court on behalf of the Appellant has been that he was inducted as a tenant by the original owner prior to the mortgage under reference and, therefore, a decree for possession against him, even on redumption, could not be passed.

In order to appreciate the case of the Appellant the pleadings as well as the evidence examined in this behalf during the trial of the suit have to be legally appreciated. The present Appellant in his written statement very specifically pleaded that he was a non-occupancy tenant over the suit land for the last more than twenty years, that is, much prior to the year 1964-65. Hence the present suit was not maintainable against him and was liable to be dismissed.

There is no dispute to the proposition that tenancy is the creature of an agreement between the parties and in order to prove that agreement it has not only to be pleaded by established through legal evidence. In the written statement submitted by the present Appellant no specific agreement of tenancy has been pleaded. A general statement has been made that he was non-occupancy tenant over the suit land for more than twenty years and much prior to 1964-65. There is nothing in the pleadings that by whom he was inducted as a tenant and what was the rent which was agreed to be paid by him. Any way, the fact remains, the evidence in this behalf has to be taken note of.

Parties have examined oral as well as documentary evidence in this behalf. The documentary evidence consisted of the entries in the records of rights. Ex. Dw1/A is the copy of Jamabandi for the year 1964-65 wherein Parsu has been recorded to be owner of the entire suit land. However, he has been recorded owner for half share, without mortgage, and the other half share owned by him has been recorded to be mortgaged in favour of Shrimati Marchi mortgagee for Rs. 350/-. In the column of occupation Devi Saran, the present Appellant has been recorded to be in actual occupation as a non-occupancy tenant under the mortgagee on payment of Rs. 200/- as yearly rent. Ex. Dw1/B is the copy of Jamabandi for the year 1969-70 wherein Parsu has been recorded as owner-mortgagor while Smt. Marchi has been recorded as a mortgagee in regard to half share for Rs. 350/- and in the other half Smt. Malti has been recorded as a mortgagee for Rs. 1250/- and in the column of occupation the present Appellant has been recorded as non-occupancy tenant on behalf of the mortgagee. The rent remained the same. Ex.P1 is the copy of Jamabandi for the year 1972-73 where the entry in the column of ownership remains the same but'' in occupation khasra No. 191 min measuring two bighas has been recorded to be in actual occupation of Smt. Malti mortgagee while the entry with respect to the remaining land in the column of occupation recorded Devi Saran to be in actual occupation as a non-occupancy tenant under mortgagee and the area in his occupation under Khasra No. 191 min is measuring 6 bighas 16 biswas and the rent remains the same, that is, Rs. 200/annually.

There is a copy of jamabandi for the year 1982-83, but not exhibited, wherein half share as mortgaged with Smt. Marchi appeared to have been redeemed and the Plaintiffs have been recorded as owners of this half share while the remaining half share has been recorded in the name of Smt. Malti as a mortgagee. The possession entry remains the same as has been described in Ex.P1. it may be referred here that in the rent column there is no entry. There is another certified copy of jamabandi for the year 1960-61 filed during the trial (but not exhibited) wherein Parsu has been recorded to be the owner of half share without mortgage and the remaining half share has been recorded to be in the name of Smt. Marchi as mortgaged for Rs. 350/-. In the column of occupation the owner as well as the mortgagee have been recorded to be in joint occupation.

The aforesaid entries in the records of rights, reflected the possession of the suit land existing at the relevant time when those entries were made. In the year 1960-61 the present Appellant has nowhere been recorded in the records of rights in occupation of any part of the suit land. His name came for the first time to be entered in the copy of Jamabandi for the year 1964-65 and that too as a tenant under the mortgagee who at that time was Smt. Marchi. This entry continued even after the mortgage in favour of Marchi had been redeemed and Devi Saran stood recorded as a non-occupancy tenant under the mortgagee, Smt. Malti for the half share of the land, which is the subject-matter of the present suit. Even out of this share the latest entry recorded Devi Saran to be in occupation of 6 bighas 16 biswas of land.

There is no dispute to the proposition that legal presumption of truth is attached to the latest entries in the records of rights and in the present case the latest entries are of the year 1982-83 wherein the present Appellant has been recorded to be in occupation of 6 bighas 6 biswas of land as a non-occupancy tenant under the mortgagee which only reflected that Devi Saran is occupying, out of the suit land, only 6 bighas 16 biswas of land. In so far as the entries in the rent column are concerned, there is no entry at all. The presumption, as such, would be that Devi Saran is in occupation of this portion of the land though earlier to 1982-83 he has been recorded to be in actual occupation of 5 bighas 16 biswas of land, as reflected from the Jamabandi for the year 1972-73(Ex.P1) on payment of annual rent of Rs. 200/-.

The aforesaid entries in the records of rights especially the latest entry in the records of rights nowhere recorded Devi Sarah to be in occupation of the suit land as a tenant under the mortgagor. The entry always has been describing him as a tenant under the mortgagee. The entries, as such, do not help the case of the Appellant wherein he pleaded himself to be coming in occupation of the suit land prior to 1964-65 as a tenant under the original mortgagor. In this background it is for the Appellant to rebut those entries through legally competent evidence so as to establish his right of tenancy as pleaded by him.

The Appellant examined himself as Dw1. He stated on oath that the suit land was in his occupation and it was given to him about 40-50 years back by the father of the Plaintiff, Shri Parsu. He added that Rs. 250/- was the yearly rent and he was occupying this land as a non-occupancy tenant. He again repeated that he was inducted as a non-occupancy tenant by Parsu owner. During cross-examination he deposed that this land was earlier with his mother who was the tenant. He again added that this land was given to his mother on tenancy prior to his birth. He stated that his mother had died about 15 years back. According to him, no writing was executed when the land was given on tenancy. He stated that Parsu was his real maternal uncle(MAMA). Smt. Malti is stated to be his real BHABHI (his brother''s wife) by him. He further added that she was residing in the disputed house. It may be pointed out here that in the pleadings the Defendant claimed himself to be the non-occupancy tenant prior to 1964-65. Now when examined on oath he stated that he inherited his tenancy from his mother who was inducted as a tenant by Parsu, who happened to be the real brother of his mother. Smt. Malti is stated to be his brother''s wife. The said statement of this Defendant in the background of his relations he was having with the concerned parties cannot be taken for granted more so, to be the legal proof of his tenancy as having been acquired by inheritance or even independently.

The other witnesses examined in this behalf also do not support the case of the Appellant at all. DW2 is one Daya Nand, who stated that the Defendant has been cultivating this land for the last 30-35 years. This witness is the Lambardar. He stated that this land was owned by Parsu and was given to Devi Saran on rent as tenant. I think this statement will not carry any legal weight in view of the statement of the Appellant himself, as discussed above. Any way, the version given by him in his cross-examination will make his statement to be not legally competent. He stated that the suit land was situated about 5 K.M. away from his, house. He could not tell the area of the suit land. He further added that Devi Saran never gave the land revenue pertaining to the suit land to him. He very specifically deposed that the Plaintiffs were never paid the rent by this Defendant in his presence. Thus, this witness, cannot be relied upon to prove the tenancy rights claimed by the Defendant-Appellant especially when the tenancy was not created in his presence nor any rent was paid by the Defendant-Appellant to the landlords in his presence.

Similarly, Dw3 Deep Ram stated that Devi Saran has been cultivating the land for the last 15 years. He also disclosed that Parsu was the father of the Plaintiffs and Defendant Devi Saran was cultivating this land on payment of rent of Rs. 250/-. He stated that he was residing near the suit land for last 15 years and earlier to that he was residing at Ghora Chowki. He deposed that he could not tell who was cultivating the land in suit prior to 15 years. He stated that the suit land measured 5 to 6 bighas. He admitted that the suit land was not given to Defendant-Appellant in his presence for cultivation. He stated that he heard about this fact from the people. He again has not been very definite about the terms of tenancy. He stated that actually the rent was not paid by Devi Saran in his presence. Again, this witness will not be of any help to the Appellant.

On the other hand the Plaintiffs have examined their evidence and in regard to mortgage Smt. Malti had admitted their claim.

Thus, on the basis of the aforesaid evidence the Defendant-Appellant has miserably failed to legally establish his possession as a tenant over the suit land, as pleaded by him. The first appellate court''s findings in this behalf do not require any interference whatsoever, which have been arrived at after correctly appreciating the law and the evidence in this behalf.

No other point has been stressed.

In view of the foregoing reasons, the present appeal fails and is, accordingly, dismissed with costs. The judgment and decree passed by the first appellate court are maintained.