Gurnaib Singh vs Smt. Dalip Kaur and others

This Regular Second Appeal is directed against the judgment and decree dated July 29, 1980 of the First Appellate Court, Faridkot reversing on appeal those of the trial Court and decreeing the suit of the plaintiffs for redemption of the suit land.

The facts which are above controversy are that Sher Singh was the owner of land measuring 58 Kanals 5 marlas. He mortgaged this land with the defendants Gurnaib Singh, Surjit Singh and Ajaib Singh for a consideration of Rs. 12,000/- under registered deed of mortgage dated June 12, 1968. He subse- quently sold this land under mortgage along-with some other land to Mangal Singh, Gurmit Singh and Smt. Surinder Paul Kaur plaintiffs and one Hari Singh under sale deed dated July 2, 1970 and at that time, he had left an amount of Rs. 12,000/- by way of trust with the plaintiffs and Hari Singh for payment to the mortgagees with a view to get the suit land redeemed. Then the plaintiffs filed a petition for the redemption of the suit land, under Redemption of Mortgages (Punjab) Act, 1913 (hereinafter referred to as the Act) before the Collector. The Collector dismissed this petition vide order dated May 11, 1976. The plaintiffs thereupon filed an application before the Collector for the restoration of their petition for redemption. However, the Collector dismissed this application also vide his order dated October 6, 1977 (Ex. D-1).

In the above background, the plaintiffs filed a suit in the Court of learned Subordinate Judge on February 25,1978 for redemption of the suit land. The suit was contested by the defendants on various grounds, one of which was that the suit to redeem the suit land was barred by limitation. The learned trial Judge put the parties to trial on the following grounds :-

Whether the plaintiffs are entitled to redeem the suit land on payment of Rs. 12,000/- to the defendants : O.P.P.

Whether the suit is within limitation? OPP

Whether the suit in the present form is not maintainable? OPD

Whether the suit has not been filed at the time stipulated in the mortgage deed? If so, to what effect? OPD

Whether the plaintiffs are barred from acquiring the suit land by way of redemption in view of the provisions of Punjab Security of Land Tenures Act and Punjab Land Reforms Act? OPD

Relief.

The learned trial Judge decided issues Nos. 1 and 2 against the plaintiffs and held that the suit was barred by limitation and as such the plaintiffs were not entitled to redeem the suit land. Issues Nos. 3, 4 and 5 were decided against the defendants and in view of the findings on issues Nos. 1 and 2, the trial Judge dismissed the suit. The plaintiffs, feeling aggrieved against the judgment and decree of the trial Court, challenged the same in the First Appeal. The First Appellate Court reversed the findings of the trial Court on issues Nos. 1 and 2, decided these issues in favour of the plaintiffs and as a consequece thereto, reversed the judgment and decree of the trial Court and decreed the suit of the plaintiffs. The defendants have challenged the judgment and decree of the First Appellate Court in this Regular Second Appeal.

The only question which needs determination is whether the suit is barred by limitation. The main trust of the argument of Mr. M. L. Merchea, learned counsel for the appellants is that the limitation to file the present suit would commence from May 11, 1976, the date when the petition filed by the plaintiffs under S. 12 of the Act was dismissed by the Collector and as the suit has not been filed within one year from the dismissal of the said petition, the same is clearly barred by limitation.

Learned counsel for the Respondents repelled the contention of Mr. Merchea by submitting that the proceedings before the Collector under the Act are only summary proceedings and this petition has not even been disposed of by the Collector on merits and so the question of the period of limitation running from the date of dismissal of the petition by the Collector under the Act, does not arise.

After carefully examining the matter in depth, I feel that the contention of Mr. Merchea is devoid of merit.

Section 6 of the Act would come into play when the petitioner is absent and the mortgagee is present. Section 7 of the ibid Act would come into play when the petitioner is present but the mortgagee is absent. In the present case, the Collector had dismissed the petition under S. 12 of the Act vide order Ex. D-l as neither the mortgagee, nor the mortgagor were present before him and as such this petition cannot be said to have been decided on merits between the parties cannot be said to have been decided on merits between the parties and if that is so, then the order Ex. D-l would not be covered by the provisions of Ss. 6 to 11 of the Act. In this connection, reliance can be placed on a judgment Swastika Scientific Engineering Co. of Ambala Cantt. Vs. The Union of India (UOI) and Others, .

Even otherwise, the period of limitation for redemption is 30 years. Indisputedly, the suit land was mortgaged on June 12, 1968 and the same could be redeemed under law within 30 years, i.e. upto 1998. The suit has been filed on February 27, 1978 and the period of limitation for redemption being 30 years, the present suit is very much within time.

Accordingly, I affirm the finding of the First Appellate Court on issue No. 2 by holding that the suit is not beyond limitation. For the reasons stated above, there is no merit in this appeal and the same is hereby dismissed. No order as to costs.

Appeal dismissed.