Khem Chand and Others vs Laxmi Chand and Others

R.L. Anand, J.—Unsuccessful plaintiffs have filed the present appeal and it has been directed against the judgment and decree dated 19.5.1984 passed by the Court of District Judge, Sonepat, who accepted the appeal of the defendants-respondents and set aside the judgment and decree dated 28.5.1983 passed by the Court of Senior Sub Judge, Sonepat, decreeing the suit of the plaintiffs.

Brief facts of the case are that the plaintiffs-appellants filed a suit for possession by way of redemption of the mortgage on the ground that their father Mathura mortgaged the suit land in favour of Munshi Ram, Net Ram, Ram Chander and Mool Chand for a sum of Rs. 475/- with possession on 25.7.1932. It was stipulated that the produce of the land shall be equivalent to the interest on the mortgage amount. It was further stipulated that the mortgagor shall not be competent to get the mortgage redeemed upto 25 years from the date of the mortgage. It was also one of the clauses of the mortgage deed that at the time of redemption the mortgagee shall remove all structures from the mortgaged land and shall not be entitled to claim any compensation for the same and shall hand over the vacant possession of the mortgaged site to the mortgagors. It is further alleged that the mortgagees Sarvshri Net Ram and Ram Chander had expired issueless. Defendant No. 1 Mool Chand is one of the mortgagees and defendants Nos. 2 and 3 are the heirs of Munshi mortgagee. It is further alleged that all efforts have been made to persuade the defendants to vacate the possession of the mortgage land and remove the construction thereupon after accepting the mortgage money as the stipulated period of 25 years had already elapsed, but to no effect. Hence the suit.

In the written statement filed by the defendants they have admitted the mortgage in their favour and so the date of mortgage deed, but alleged that the names of the mortgagees have not been correctly detailed in the plaint, and that there was no question on the rental of the mortgage site being equivalent with the interest on the mortgage money because the mortgage was with possession and it was further alleged that the plaintiffs are not the sole heirs of Mathura mortgagor because he had three other daughters who have not been impleaded as plaintiffs. It is further pleaded that defendant No. 1 alone is not the heir of Net Ram, Ram Chander mortgagees and the remaining defendants Nos. 2 and 3 are also their heirs and the present suit is barred by limitation and that no condition could be imposed regarding the redemption of the mortgaged property. Residuary plea was also taken that taking the site on mortgage the defendants have raised the residential house at the expense of Rs. 30,000/-, which they shall be entitled to have from the plaintiffs in case the decree of redemption is passed. On above pleas, the defendants had prayed for the dismissal of the suit.

The plaintiffs filed replication to the written statement in which they reiterated their allegations made in the plaint by denying those of the written statement and from the above pleadings of the parties and trial court framed the following issues:-

Whether the suit is barred by the limitation ? OPD.

Whether the conditions given in the mortgage deed are a clog on limits of redemption, if so, to what effect ? OPD. -

Whether the defendants are entitled to any compensation for improvements of suit property and what amount, if any? OPD.

Whether the suit is bad for non-joinder of necessary parties ? OPD.

Relief.

The parties led oral and documentary evidence in support of their case. Learned counsel, who appeared on behalf of the defendants, conceded issues No. 1 to 3 and did not press those issues on behalf of the defendants, as a result of that those issues were decided against the defendants and in favour of the plaintiffs. Only issue No. 4 was pressed that the suit of the plaintiffs was bad for non-joinder of necessary parties, but this issue was also decided in favour of the plaintiffs and against the defendants. In spite of the fact that there was no specific issue, the defendants in the trial court took an objection that the suit of the plaintiffs was premature. This objection was taken on the plea that the time of redemption of the mortgage was 55 years and not 25 years, as alleged by the plaintiffs and, therefore, the suit which has been instituted in the year 1980, i.e., on 5.9.1980, was not maintainable, being premature. This plea, of the defendants was discussed in para No. 8 of the judgment passed by the trial Court. The trial court rejected the plea of the defendants mainly on the ground that earlier the defendants made an offer for the amendment of the written statement in which they wanted to incorporate the plea that the present suit of the plaintiffs was premature and the said application was disallowed by the trial court on 27.1.1983. Again second application was moved by the defendants on 28.2.1983 and it was dismissed as being not pressed on 16.3.1983. The trial court took the view that no amount of evidence could be allowed which was against the pleadings of the parties and the defendants could not raise "plea that the suit of the plaintiffs was premature as it had been filed before the expiry of 55 years. Finally the finding of the trial court under issue No. 5 decreed the suit of the plaintiffs for possession by way of redemption on payment of Rs. 475/- with the orders that if any construction existed upon the disputed site, the same would be removed by the defendants within a period of six months on their own expense and in case the defendants did not remove the construction within the period allowed by the Court, the plaintiffs would be entitled to get the same removed through the agency of the Court.

Aggrieved by the judgment and decree dated 28.5.1983 of the trial Court the defendants filed first appeal before the Court of District Judge, Sonepat, who vide judgment and decree dated 19.5.1984 allowed the appeal, holding that the suit of the plaintiffs was premature and it could allow only a year after 25.7.1987 as the period of redemption of the mortgage was 55 years. The discussion of the fist appellate Court is contained in para No. 4 of the judgment, which is reproduced as follows:-

"4. The short contention raised by the learned counsel for the appellants was that the learned trial court did not put in issue the objection that the suit was premature. It seems that this point was agitated at the time of arguments addressed in the suit before the learned trial court which explains the reasons why it disposed it of in para 8 of its judgment in the following manner:-

"Before parting with this case, I would like to dispose of a caveat offered by the learned counsel for the defendants that though there is no issue that the present suit is premature but the same is borne out from the evidence adduced by the parties, and the definite stand taken by them in the Court. In this behalf he referred to the statement of one of the plaintiffs Khem Chand, who appeared as PW 1, who admitted that the plaintiffs are bound by the stipulation agreed upon in the mortgage deed, copy of which is Ex. P1. In Ex. P1, there is a stipulation that the impugned mortgage cannot be got redeemed by the mortgagor before the expiry of 25 years, which shall fall in the year 1957, but, the original mortgage Ex. Dl placed on the record by the defendants, the stipulation is that the mortgage cannot be got redeemed by the mortgagor before the expiry of 55 years. In this very context, Sh. Prem Tirath, learned counsel for the plaintiffs contended that when this fact came to the notice of the defendants, they filed an application for amendment of the written statement, seeking to incorporate the plea that the present suit cannot be brought before the expiry of 55 years, from the date of mortgage i.e. 25.7.1932. It is on record that this application of the defendants was disallowed by the court vide its order dated 27.1.1983. It is also on record that a second application in that behalf was filed by the defendants on 28.2.1983, and was dismissed for being not pressed on 16.3.1983. Faced with the situation, the learned counsel for the defendants contended that morally and legally the plaintiffs cannot wriggle out of the stipulation made in the mortgage deed Ex.P1. In that behalf, it can be observed that there is no such plea in the written statement. So the court cannot give any finding and travel beyond the pleadings of the parties. In that behalf Shri Prem Tirath has referred to (1981) 83 P.L.R. 386 : 1981 CLJ 220 Meja Singh v. Karan Singh; 1977 P.L.J. 257, Brahm Dutt v. Inder Singh and Anr., and 1975 CLJ 333, Nagina Singh v. Jahangir Singh. In these authorities, the well settled law that no party can be allowed to adduce evidence beyond its pleadings and if any evidence is adduced, the same cannot be taken into consideration by the court, has been reiterated. As already, observed, there is no plea on behalf of the defendants that the impugned mortgage could not have been got redeemed by the plaintiffs before the expiry of 55 years. So any evidence adduced by the parties or alleged admission of one of the plaintiffs cannot be taken into consideration. So, the contention raised on behalf of the defendants is disposed in the manner observed above."

The appellants'' counsel then contended that the defendants moved twice for amendment of the written statement filed by them to raise the plea that the suit was premature. The applications filed by the defendant under Order 6 Rule 17 CPC are dated 17th August, 1982 and 28th February, 1983 which are available at pp 7 and 18 of the file of the trial court. The learned trial Court dismissed the first application vide its order dated 27th January, 1983. The relevant portion of the order contained in para 5 is extracted below:-

"In the original written statement dated 13.10.80 filed by the defendant, it was pleaded that limitation for redemption of the land had already expired, and that the suit was time barred. Now, through the proposed amendment, the defendants want to take a plea that the period fixed for redemption has not expired, and the suit was premature. In other words, the proposed amendment is inconsistent with the original pleadings and also amounts to withdrawal of admission made in the earlier written statement and it is settled law that an admission cannot be withdrawn even by way of amendment. Moreover, a party, by way of amendment, cannot be allowed to introduce a totally inconsistent plea. I am, therefore, of the opinion that the amendment sought for by the defendants in the written statement cannot be allowed."

Even then the defendants persisted in raising the plea by their second application which unfortunately was dismissed as not pressed by the defendants'' counsel vide his statement dated 16th March, 1983. The learned counsel for the defendants should not have made this statement as also the statement dated 28.5.1983 vide which he did not press issues 1 to 3 and invited the adverse findings of the learned trial court on them.

The whole question is whether the defendants can urge in the appeal all over again despite the statements made by their counsel that the order dated 27.1.1983 of the dismissal of the application under Order 6 Rule 17 CPC dated 17th August, 1982 was bad in law. I am inclined to agree with the appellants'' counsel that the matter can be re-opened/reagitated in the appeal. I am further of the view that the defendants are not bound by the statements made by their counsel vide which he made admission on the points of law.

A reading of para 8 of the impugned judgment passed by the learned trial court extracted above would show that it made the copy of the mortgage deed rather than the original mortgage deed as the basis for his finding that the suit was not premature having been brought after the expiry of 25 years. The mortgage deed Ex.D1 clearly shows that the mortgagor was debarred from getting the suit land redeemed within 55 years and not 25 years. The period of 55 years is mentioned at 5 places in the mortgage deed Ex.D1. It was wrongly mentioned due to somewhat similarity in writing 25 and 55 in words in urdu in the copy of mortgage deed Ex.D1 was 25th July, 1932, as such the suit land as per the stipulation condition in it was not redeemable prior to 25th July, 1987.

The onus to prove that the suit is within time, is always on the plaintiff. It is for the plaintiff to show that at the time of suit the mortgage was still subsisting and if he endeavours to rely on an acknowledgement, the onus still lies on him to prove that the acknowledgement was within time. In Hari Singh Kaka Singh Vs. Harijan Co-operative Society of Chupki, , it was held that sixty years'' period of limitation for redemption of mortgage, which runs from its date, can only be postponed either by an acknowledgement or by the terms of deed and the onus of proving such postponement on the date of the mortgage is on the person seeking redemption particularly when the mortgage deed was proved to be registered.

The rule is will settled that a person who claims exemption or extension of a period of limitation has to show that he is entitled to it. In the case of mortgage, the period of limitation starts running from the date of the mortgage provided the redemption is postponed. Here in this case the redemption of mortgage was postponed by the stipulated condition in the mortgage deed Ex. D1 which was a registered document, as such there was no question of getting the mortgage land redeemed before the expiry of the period of 55 years mentioned in it. Plainly, the suit was premature. It could only lie on or after 25th July, 1987. I do not think the necessity of remanding this suit by allowing the amendment as I feel that the court can itself take notice of the fact as to whether the suit was within time or not. As I feel that as per the stipulation contained in the mortgage deed Ex. D1 the suit was liable to fail as premature reckoning the period of postponement of redemption of 55 years from the date of the execution of the mortgage deed, I uphold the objection taken by the defendants in this behalf."

This time the unsuccessful plaintiffs-appellants were aggrieved by the judgment and decree of the first appellate Court and they have filed the present appeal, which is being disposed of with the help of Shri H.N. Mehtani, Advocate, appearing on behalf of the appellants, and Shri S.K. Bansal, Advocate appearing on behalf of the respondents, with whose assistance I have gone through the record of this case.

The original mortgage deed is Exhibit D1, which is on the record, and it is in Urdu. No doubt I am also feeling little bit difficulty in reading the Urdu script of Exhibit D1. The case of the plaintiff in the trial court was that the period of redemption was 25 years. A perusal of the written statement filed on behalf of the defendants would show that at no point of time they had ever alleged that the period of redemption was 55 years. Later on two applications were moved by the defendants regarding which I have already made a mention above. The first application was dismissed by the detailed order by the trial court which was never challenged by the defendants. Second application was dismissed as not pressed. I have also gone through this mortgaged deed Exhibit D1 and have also taken the assistance of some Urdu knowing person in order to read the clause whether the redemption period was for 25 years or 55 years. I am prima facie of the view that the redemption clause was for 25 years and not for 55 years as held by the first appellate Court and as contended by the learned counsel for the respondents. In order to dispose of the present appeal I am giving all concessions to the defendants and taking the period of redemption of mortgage as 55 years and on these premises I am deciding this appeal in order to find out whether the decision of the first appellate Court can be sustained in the eyes of law. The plaintiffs have also placed on record the certified copy issued by the office of the Sub Registrar, Rohtak (Exhibit P2) in which that the period of redemption is 25 years has been written at five places. Exhibit P3 is mutation based on the said mortgage where the redemption has also been shown as 25 years. Irrespective of the fact whether the period of redemption is 25 years or not I am taking it as if the period of redemption is 55 years.

Shri H.N. Mehtani, learned counsel appearing on behalf of the appellants, submitted that even if the period of redemption is taken as 55 years, still the suit of the plaintiffs-appellants is bound to be decreed as the period of 55 years from 1932 has since expired and the defendants cannot successfully resist the decree for possession by way of redemption and they are bound to restore the vacant possession of the mortgage land in favour of the plaintiffs on receipt of Rs. 475/-, the mortgage amount.

On the contrary, learned counsel for the respondents submitted that on the date of the institution of the suit 55 years had not elapsed and the suit of the plaintiffs was premature and has been rightly dismissed by the first appellate Court and even now after the expiry of 55 years from the date of the mortgage, the plaintiffs-appellants cannot succeed and cannot get a decree for possession by way of redemption because their initial suit was bad being premature and with the passage of time of 55 years that difficulty cannot be removed. In support of his contention learned counsel for the respondents placed reliance on Seth Ganga Dhar Vs. Shankar Lal and Others, , which authority I would discuss in the subsequent portion of this judgment, but at this stage I would like to make observation that the contention raised by the learned counsel for the respondents is devoid of any merit and this appeal is liable to succeed because the 55 years of period of redemption, as stated by the defendants cannot successfully resist the possession of the plaintiffs-appellants. It is true that on the date of the institution of the suit the period of 55 years had not elapsed, but this Court is always competent to take notice of the subsequent events and if with the passage of time the cause of action of the plaintiffs had ripened, they cannot be allowed to relegate to file a fresh suit. It is a case where the plaintiffs under a bona fide mistake thought that the period of redemption was 25 years. The original mortgage deed was in the possession of the defendants. The plaintiffs could only lay their hand on the certified copy of the office of Sub Registrar or the register of the scribe or the revenue record. In the certified copy (Exhibit P2) the period of redemption has been mentioned as 25 years. The trial court did not dismiss the suit of the plaintiff as premature. It was the first appellate court who allowed the legal plea for the benefit to the defendants and taking the period of redemption as 55 years, dismissed the suit of the plaintiffs. If that legal plea was open to the defendants at the time of the passing of the decree by the first appellate Court, why a different standard should be applied by this Court and the same benefit of legal plea can be extended to the plaintiffs ? Now the cause of action even according to the defendants had matured and it would be most injudicious and improper on the part of this court to direct the plaintiffs to file a fresh suit for possession on the basis of the mortgage deed. The equity of redemption has not extinguished. The plaintiffs were competent to get the property redeemed upto the expiry of 85 years, i.e. 55 years, the period of redemption, besides 30 years as provided under the Law of Limitation starting from 1932. In order to give effective relief to the party to the suit all subsequent facts and events can be well taken note of by this Court for the effective adjudication of the rights of the parties. The citation reported as Ganga Dhar v. Shankar Lal and Ors. (supra) is distinguishable on facts. In this authority the Hon''ble Supreme Court was pleased to hold:-

"Ordinarily, and in the absence of a special condition entitling the mortgagor to redeem during the term for-which the mortgage is created, the right of redemption can only arise on the expiration of the specified period."

In this authority the Hon''ble Supreme Court in the earlier portion of the judgment was in favour of the mortgagors and struck down the clause by holding that the disputed clause amounted to clog on the right of redemption of the mortgagors. In the cited case there was a clause that if the mortgage is not redeemed within six months after the expiry of 85 years, it will be treated as a sale: The Hon''ble Supreme Court was pleased to hold that this clause amounts to clog. The suit for redemption after the expiry of the 85 years was necessitated in the cited cases and it was held under those circumstances that it was premature. In the present case the plaintiffs were labouring under a bona fide belief that the period of redemption was 25 years. The defendants did not take any plea in the written statement. Rather their first application was dismissed and the second application for raising the same objection was withdrawn; meaning thereby, the plea of premature suit was abandoned by the defendants themselves. Even if it is taken that the defendants were competent to raise this objection, now it has to be conceded by all the parties before me that 55 years had already elapsed and the defendants are bound to redeem the property on receipt of the mortgage amount. In this authority the Supreme Court did not hold that if the period of redemption had expired during the pendency of the suit, even in that eventuality, the plaintiffs are not competent to redeem the property.

Learned counsel for the respondents then relied upon Order 7 Rule 11, CPC and submitted that the plaint of the plaintiffs was defective as it did not contain the facts constituting the cause of action when it arose and under Order 7 Rule 11, CPC, the suit of the plaintiffs was liable to be dismissed as on the date of the institution of the suit it did not disclose a cause of action. This argument is again devoid of any merit. The cause of action is a bundle of facts which the plaintiffs is supposed to disclose in his plaint. A perusal of the plaint would show that the plaintiffs specifically alleged about the date of the mortgage, the alleged period of redemption, the mortgage consideration and the mode of redemption. The defendants did not take any specific objection that the suit of the plaintiffs was premature. Prima facie the plaint disclosed the cause of the action and that lis was tried by the trial court whose finding went against the defendants. It was the first appellate Court which dismissed the suit in the year 1984 because at that time even 55 years had not elapsed and the plaintiffs could not be granted a decree for possession. Now in the year 1996, the plaintiffs'' cause of action has fully matured, even as per defence of the defendants, and their lis cannot be allowed to fail on account of the objection which has been taken up by the defendants.

Resultantly, I am of the considered view that this appeal is bound to succeed. I accept this appeal, set aside the judgment and decree of the first appellate court and restore the judgment and decree of the trial Court. Now the defendants-respondents shall abide by the decree and the directions of the trial court and they are allowed six months'' time to remove their structure in any shape from the mortgaged site, failing which the plaintiffs-appellants shall be able to get the possession of the site by the removal of the construction through the Court of law. The period of six months would start from the date of the deposit of the mortgage amount, which shall be deposited by the plaintiffs appellants within three months from today. There shall be no order to costs in this appeal.