Iqbal Kaur and Another vs Wazir Chand and Others

S.K. Jain, J.—One Tilak Ram mortgaged his house situated at Barnala, which is the subject matter of the suit herein, to Kahanji Mal for a mortgage amount of Rs. 2500/-. Tilak Ram having died, his son Sadhu Ram succeeded to his estate.

On the other hand, Kahanji Mal having died, was succeeded by Moti Ram, his legal heir. Vide registered deed dated 18.2.2004 BK corresponding to 31.5.1947, Moti Ram sold mortgagee rights in the said house to Shambu Nath for Rs. 2500/-. On the death of Shambhu Nath, Om Parkash and Suraj Rani, his son and daughter respondent No. 2 and 3 respectively, succeeded to his estate.

One Gurmukh Singh was a tenant in the house in dispute under Shambhu Nath at a monthly rent of Rs. 15/-. This Gurmukh Singh also died and was succeeded to by Gobind Kaur, his wife, Bhupinder Singh, Joginder Singh, Ranjit Singh and Devinder Singh his sons and Surjit Kaur, Gurdeep Kaur and Iqbal Kaur his daughters, jointly shows as defendant No. 1. Gobind Kaur widow of Gurmukh Singh having also died, her estate was succeeded to by the other heirs of Gurmukh Singh.

Puran Chand had purchased the house in dispute from Sadhu Ram vide sale deed dated 3.11.2005 BK. Puran Chand died on 21.8.1974 and was succeeded by Wazir Chand, Mohan Lal, Hari Chand and Ramesh Kumar, sons, Mst. Lajwanti widow, Krishna Devi and Satya Devi, daughters, plaintiffs herein.

On 2.4.1979, the plaintiffs redeemed the mortgage. They filed Civil Suit No. 860 of 23.5.1979 against the heirs of Gurmukh Singh, tenant, for pos session of the said house on the ground that they having redeemed the mortgage on 2.4.1979, the tenant of the mortgagees had no right to be in pos session of the house in dispute as he had to swim and sink with his mortgagee-landlords Om Parkash and Suraj Rani, heirs of Shambhu Nath mortgagee, who had also been arrayed as proforma defendants No. 2 and 3.

The case of the contesting defendants was that Gurmukh singh, their father, was put in possession of the house by one Bhagwant Singh Mistri. The learned trial Court returned following findings on material points:-

(i) that Puran Chand deceased had purchased the house in dispute from Sadhu Ram son of Tilak Ram its owner vide registered sale deed Ex. PW5/A,

(ii) Gurmukh Singh deceased was a tenant under Shambhu Nath who purchased mortgagee rights from Moti Ram who was the original mortgagee,

(iii) that the plaintiffs who are the mortgagors of the house in dispute have no doubt paid the mortgage amount to the mortgagees after the expiry of the period of limitation prescribed for redeeming the mortgage but there is no bar for the mortgagor to pay the debt by private arrangement. It is only mortgagee who can question the title of the mortgagor to redeem the property after the expiry of the period of limitation, and

(iv) that the defendants who are tenants of the mortgagees had no locus standi to challenge the redemption.

Resultantly, the suit of the plaintiffs was decreed by Sub Judge Ist Class, Barnala, vide his judgment and decree dated 31.7.1982.

Feeling aggrieved, Iqbal Kaur and Surjit Kaur, legal representatives of Gobind Kaur, widow of Gurmukh Singh, sought to challenge the said judgment and decree vide Civil Appeal No. 100-A of 3.9.1983. Shri Hira Lal Garg, Additional District Judge, Barnala dismissed the said appeal vide judgment and decree dated 31.8.1985, thereby affirming the findings recorded by the Subordinate Court. It is that judgment and decree of the first appellate Court which has been appealed against by the said defendants and which requires my examination of its sustainability.

I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and the judgments of both the Courts below.

Mr. Vinay Mittal, learned counsel for the appellants has argued that the mortgage was effected on 31.5.1947 whereas it was allegedly redeemed on 2.4.1979. Under Article 61a) of the Limitation Act a period of 30 years is provided to redeem or recover possession of immovable property mortgaged and the said period starts running from the date when the right to redeem or recover possession accrues i.e. from the date of the mortgage it self. That being so, in this case the right to redeem the property had extinguished due to efflux of time and the tenant of a mortgagee who had be come owner could not be dispossessed. In support of his argument he had cited at the bar AIR 1940 49 (Nagpur) , wherein it was held that after the expiry of the prescribed period of limitation not only is the remedy barred but the title is extinct in favour of the possessor. In other words in all cases to which Section 28 applies, as soon as a right to sue for possession is barred by limitation, the right to the property it self is extinguished, and not merely the right to sue for it. I can possibly have no quarrel with the above proposition of law.

Section 27 (old Section 28) of the Limitation Act deals with the extinguishment of right to property.

It provides 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."

It is true that by operation of the above provision of the Act not only the remedy is barred but even the right ceases to exist by efflux of time. But here, in this case the question is as to whether the defendants who were the successors of the tenant of the mortgagees have locus standi to challenge the said redemption. In Section Harbans Singh v. Mangat Rai (1978) R.C.R. 824, this Court held that a tenant cannot challenge that redemption of mortgage was bogus and collusive. Herein also, the defendants cannot be allowed to plead that the mortgage had taken place more than 30 years ago and the plaintiff-respondent Nos. 1 to 7 had no right to redeem the same.

The other two authorities cited at the bar by the appellants are:-

(i) Jawahar Lal Motumalmamtani Vs. Bhag Chand Motumal Ramtani and Another, and

(ii) Ram Murti and Ors. v. Puran Singh son of Attra Singh and Anr. (1963) 65 P.L.R. 297.

In Jawahar Lal Motumal Mamtani''s case (supra), tenants of a mortgagee were not the parties to litigation and there was no controversy as to whether tenants of a mortgagee could or could not challenge the right of the mortgagor to redeem the property even after the expiry of the period of limitation. In that case, in the suit as framed in the original unamended plaint the plaintiff claimed only the relief of a mandatory injunction directing the defendants to stop using the property, to remove their goods and to vacate the property. The plaintiff by way of amendment was seeking in addition the second alternative relief of possession of the property in dispute. The plaintiff wanted to exercise his right to sue and claim in addition the relief for possession on the basis of his title in the property in dispute which belonged to the true owner. The allegations of the defendants were that the plaintiff had suffered his right to be forfeited at the determination of the period of 12 years limited for instituting a suit for possession and that the title of the plaintiff had become extinct and get vested in favour of the defendants who were in possession and under those peculiar facts it was held that the application for amendment of plaint should be allowed but the amendment would take effect from the date of the application and not from the date of institution of the suit.

In Ram Murti''s case (supra), according to the allegations of the plaintiff, he was the owner of the land in dispute and defendant No. 1 to 8 taken forcible possession of the same in Kharif 1952. The defendants took preliminary objection that Tilak Ram, Ram Murti, Ram Sarup and Raj Kumar were also necessary parties as they had taken the land in dispute on lease from them. They were allowed to be arrayed as defendants No. 9 to 12 and then all the defendants i.e. 1 to 10 had contested the suit. It was found as a fact that:-

(a) originally, the plaintiff was the owner of this land;

(b)defendants No. 9 to 12 were in adverse possession of this land for the statutory period,

(c)defendants No. 9 to 12 gave up possession of this land sometime before 1952, when defendants 1 to 8 entered into possession,

(d) there was nothing in the revenue entries to show that defendants 1 to 8 were in possession as tenants under defendants 9 to 12, as alleged by them; and

(e) when defendants 9 to 12 gave up possession of this land, defendants 1 to 8 entered into possession.

So, in that case also the point as to whether a tenant of a mortgagee had locus standi to challenge the redemption by the mortgagor after expiry of the statutory period of 30 years was not involved.

In view of the above discussion, it is clear that the above said two authorities do not in any way advance the case of the appellants.

In the result, I do not find any infirmity with the judgment and decree of the lower appellate Court dated 31.8.1985 thereby affirming the judgment and decree dated 31.7.1982 passed by Sub Judge Ist Class, Barnala. The same are affirmed. Resultantly, this appeal fails and is hereby dismissed with costs.