M. Gullappa and Muthappa vs Krishnamma and Others

M. Jaichandren, J.—This Second Appeal has been filed against the judgment and decree, dated 17.12.1997, made in A.S. No. 173 of

1996, on the file of the Subordinate Judge, Hosur, confirming the judgment and decree, dated 18.03.1996, made in O.S. No. 49 of 1987, on the

file of the District Munsif, Hosur.

The plaintiffs in the suit O.S. No. 49 of 1987, are the appellants in the present second appeal. The suit had been filed by the plaintiffs praying for

the reliefs of declaration, permanent injunction and for redemption.

For the sake of convenience, the parties are referred to as they have been arrayed in the original suit O.S. No. 49 of 1987.

The plaintiffs had sought for the relief of declaration stating that the mortgage deed, dated 27.3.1974, made in favour of the first defendant had

been discharged in view of the provisions of the Tamil Nadu Debt Relief Act, 1976, Section 8(5) of the Tamil Nadu Debt Relief Act, 1978 and

Section 9 of the Debt Relief Act, 1979. The plaintiffs had also prayed for the relief of permanent injunction restraining the first defendant from

interfering with the possession of the ''A'' schedule property and for the relief of possession of the B schedule property from the second defendant.

It has been stated by the plaintiffs that the suit properties belonged to the first plaintiff, his elder brother Uchallappa the father of the second

plaintiff and their mother Ellamma. All the three had mortgaged the suit properties to the first defendant for a sum of Rs. 2,000/-, on 27.3.1974,

under Exhibit A.1. In lieu of the interest, the first defendant was put in possession of the suit properties. The executants had the option to redeem

the suit properties after a period of five year but before 6 years from 27.3.1974.

Ellamma had died leaving Uchallappa and Gullappa as her legal heirs. Uchallappa had died, on 15.10.1986. Uchallappa''s son Muthappa is the

second plaintiff in the suit. By a registered sale deed, dated 21.1.1981, the first defendant had sold an extent of 1.70 acres out of 3.78 acres of the

suit property in S. No. 426 to the second defendant. In spite of the objections raised, patta had been granted to the second defendant in respect of

the B schedule property. Since the document, dated 27.3.1974, did not convey any title to the first defendant, he had no right over the suit

property to sell the property by the sale deed, dated 21.1.1981. Hence, the second defendant cannot claim any right over the property purchased

under the said sale deed. Since the patta had been granted to the second defendant for an extent of 1.70 acres in the year, 1982, he had

encroached into the B schedule property and he is in illegal occupation of the same. Patta was granted to the first defendant under the UDR

scheme for 2 acres and 8 cents, on 20.11.1985. When the plaintiffs had demanded for redemption, the first defendant had refused to accede to

the claims of the plaintiffs. Since the first defendant had died, his legal heirs were added as the defendants in the suit. Since the plaintiffs are small

farmers and as the first defendant was in possession of the suit property for more than 10 years, the mortgaged debt stood discharged as per the

provisions of The Tamil Nadu Debt Relief Acts of 1976, 1978 and 1979. Thus, the second defendant is a trespasser in respect of B schedule

property and therefore, the plaintiffs had prayed for the reliefs of declaration that the mortgaged properties should be redeemed as no amount was

due and payable, as the debt stood discharged, as per the provisions of the Acts as stated above.

The plaintiffs had also prayed for the relief of permanent injunction restraining the first defendant from interfering with the plaintiffs'' peaceful

possession and enjoyment of the plaint A schedule property and to direct the second defendant to deliver possession of the plaint B schedule

property to the plaintiffs.

The first defendant had contended that the deed, dated 27.3.1974, executed by the first plaintiff Gullappa Uchallappa and their mother Ellamma

for a sum of Rs. 2000/- was an absolute sale deed and not a mortgage by conditional sale. After the expiry of the period of five years and before

the end of the 6th year, from 27.3.1974, the first plaintiff and the other two persons were given the right to re pay the amount of Rs. 2,000/-. If

they failed to repay the amount after the fifth year and before the 6th year, the first defendant would get absolute title over the property. The first

defendant had waited for the expiry of the period mentioned in Exhibit A.1 and thereafter as the plaintiffs did not come forward to exercise their

option to repurchase the property, the first defendant had sold an extent of 1.70 acres of the property purchased by him, under Exhibit A.1. The

said property with an extent of 1.70 acres had been sold to the second defendant. Based on the said sale, the patta had been given to the second

defendant, by the Special Tahsildar concerned, for the extent of 1.70 acres (B schedule property). Since a patta was wrongly given to the plaintiffs

with regard to an extent of 0.87.5 Hectares an appeal had been made to the Collector and the said patta was cancelled after an enquiry had been

conducted. The first defendant is paying ''Kandhayam'' for the A schedule property and that the second defendant is the title holder of the B

schedule property. It was also stated that there is no relationship of Mortgagor and Mortgagee between the plaintiffs and the first defendant.

Further, the first defendant is entitled to the suit property by way of adverse possession also.

The second defendant had stated that the first defendant is the title holder of the suit property as per the sale deed, dated 27.3.1974, and he

was in exclusive possession of the suit properties. From the date of the sale of the suit property by the first defendant to the second defendant, on

21.1.1981, the second defendant had been in exclusive possession of the B schedule property as he is the bonafide purchaser of the property for

valuable consideration. The second defendant had purchased 1.70 acres in S. No. 426, with specific boundaries, from the first defendant, on

21.1.1981, and he has been paying the ''Kandhayam''. On 3.3.1982, the patta had been granted to the suit property. The plaintiffs are not small

farmers and therefore, they are not entitled to the benefits of the Debt Relief Acts. Further, it was also contended that the suit filed by the plaintiffs

is barred by limitation.

Based on the averments made on behalf of the plaintiffs as well as the defendants, the following issues were framed for consideration:

Whether the document, dated 27.3.1974, is a mortgage deed on conditional sale?

Whether the plaintiffs are entitled to redeem the mortgage, as per the document, dated 27.3.1974?

Whether it could be considered that the debt had been repaid as per Section 8(5) of The Tamil Nadu Debt Relief Act 40/78, Section 9 of The

Debt Relief Act 40/79 and The Tamil Nadu Debt Relief Act, 31/76 and that the Mortgage on conditional sale had been redeemed?

Whether the sale deed, dated 21.1.1981, executed in favour of the second defendant by the first defendant, is valid and whether it would bind

the plaintiffs?

Whether the first defendant''s right over the suit property had accrued to him through adverse possession, as stated in the written statement?

Whether the suit is barred by limitation Act?

What other reliefs?

The trial Court had held that the document marked as Exhibit A.1 is not a mortgage by conditional sale but a sale with the right to repurchase.

There is no mention in Exhibit A.2 that Rs. 2,000/- is the loan amount. The mortgagor-mortgagee relationship between the plaintiffs and the

defendants has not been found in Exhibit A.1. There is no proof or material evidence produced by the plaintiffs before the Court to prove that the

value of the suit property was more than Rs. 2,000/-, as on 27.3.1974. It was also stated that the possession of the properties was handed over to

the first defendant on the date of execution of the mortgage deed, namely, on 27.3.1974.

No details had been given with regard to the interest on the loan. In Exhibit A.1, it has been clearly stated that after the expiry of the fifth year

and within one year thereafter, the plaintiffs repay the sum of Rs. 2,000/-, the first defendant would become the absolute owner of the property.

Only after becoming the absolute owner, on fulfillment of the conditions specified in Exhibit A.1, dated 27.3.1974, the first defendant had sold a

part of the suit property to the second defendant under Exhibit B.5, dated 21.1.1981. The plaintiffs, having knowledge of the sale of the properties

to the second defendant, had not initiated any action to redeem the mortgage and to set aside the sale made in favour of the second defendant.

They had waited for more than 6 years before filing the suit in the year, 1987, claiming the benefits under the Debt Relief Act. If the plaintiffs had

intended to get the property reconveyed, they should have approached the first defendant within the stipulated period mentioned in Exhibit A.1. In

view of their conduct, it cannot be held that Exhibit A.1 is a mortgage by conditional sale.

It was further held by the trial Court that the plaintiffs have not placed any materials to show that they are entitled to the reliefs under The Debt

Relief Act and as such, they are not entitled to any benefits. Thus, it was held that the plaintiffs are not entitled to the relief of declaration as prayed

for. Further, the trial Court had also held that the plaintiffs had not produced any evidence, either oral or documentary, to show that they are in

possession of the properties in question. Therefore, it was held that the plaintiffs are not entitled to the relief of permanent injunction. Based on such

findings, the trial Court had dismissed the suit filed by the plaintiffs.

Aggrieved by the judgment and decree, dated 18.03.1996, in O.S. No. 49 of 1987, on the file of the District Munsif, Hosur, the plaintiffs had

filed an appeal in A.S. No. 173 of 1996, on the file of the Subordinate Judge, Hosur. The first appellate Court had framed the following points for

consideration:

Whether the document, dated 27.3.1974, is a mortgage deed on conditional sale? or a sale deed with a right to repurchase?

Whether the sale executed by the second defendant is in good faith? Whether it would bind the plaintiffs or not?

Is it true to state that the suit ''A'' schedule property is in the possession of the plaintiffs?

Whether the plaintiffs are entitled to the reliefs of declaration, permanent injunction and possession as prayed for in the suit?

Whether the judgment and decree of the trial Court are correct? Is it necessary to admit this appeal?

Based on the evidence available on record and in view of the rival claims, it was held by the first appellate Court that Exhibit A.1, is a deed of

mortgage by conditional sale. It was also held that the plaintiffs had not proved that the value of the suit property, at the time of execution of Exhibit

A.1, was more than Rs. 2,000/-. The first appellate Court had also found that the plaintiffs had failed to prove by sufficient material evidence that

the first defendant had conveyed the possession of the suit property to the plaintiffs. Therefore, the relief of permanent injunction was not granted

to the plaintiffs. Since it was held that the Exhibit A.1 is a deed of mortgage by conditional sale, the plaintiffs ought to have sought for the relief of

redemption of the mortgage and instead they had chosen to file a suit for declaration declaring that the mortgage is discharged in view of the Debt

Relief Acts. When the plaintiffs had claimed the relief u/s 3 of the Debt Relief Act, 1979, the burden was on the plaintiffs to show by oral or

documentary evidence that they are ''debtors'' as contemplated by the Act. When the plaintiffs had failed to prove that they are entitled to the

benefits of the Debt Relief Acts, their claim for declaration that the mortgage has been discharged, in view of the provisions of the said Acts,

cannot be sustained. Since the plaintiffs have not filed the suit for redemption of mortgage, they are not entitled to the relief of declaration. Further,

the plaintiffs had not deposited the balance amount due under the mortgage before filing of the suit. Thus, the first appellate Court by its the

judgment and decree, dated 17.12.1997 had dismissed the appeal in A.S. No. 173 of 1996 filed by the plaintiffs.

Aggrieved by the judgment and decree of the first appellate Court, dated 17.12.1997, made in A.S. No. 173 of 1996, the plaintiffs had filed

the present second appeal.

The following substantial questions of law raised in the second appeal are as follows:

A. Whether the lower appellate Court is right in dismissing the suit for redemption of mortgage after holding that the document under Exhibit A.1 is

a mortgage deed?

B. Whether the Courts below are right in failing to note that the Mortgage money could be deposited only on a specific direction of the court and in

the absence of specific direction by the Court, whether the finding of the lower appellate Court that the suit is liable to be dismissed for not having

being framed properly, is not perverse and illegal?

C. Whether the lower appellate Court ought not to have passed a preliminary decree for redemption or in the alternative, direct the plaintiff to

deposit the amount and pass final decree in accordance with the provisions of Order 34 Rule 7 Civil Procedure Code?

The learned Counsel appearing for the appellants/plaintiffs had submitted that both the trial Court as well as the first appellate Court have erred

in coming to the conclusion that the plaintiffs ought to have filed a suit for redemption of mortgage instead of praying for a declaratory relief as

prayed for in the suit. Though the Courts below had found that the deed, dated 27.3.1974, marked as Exhibit A.1, is a mortgage by conditional

sale, both the Courts below had erred in coming to the conclusion that the mortgage cannot be held to have been discharged in accordance with

the provisions of Debt Relief Acts as claimed by the plaintiffs. There is no necessity for the plaintiffs to pray for the relief of redemption, as the

mortgage gets discharged, automatically, in accordance with the provisions of the Debt Relief Acts. Even though the Courts below have

concurrently held in favour of the defendants, this Court could interfere with such concurrent findings. Though both the Courts below had found

Exhibit A.1 to be a mortgage by conditional sale, the respondents have not challenged the said findings and therefore, it is not open to them to

resist granting of the reliefs sought for by the plaintiffs in the suit.

The learned Counsels appearing for the respondents had submitted that the trial Court had held that Exhibit A.1 is a sale with a right to

repurchase and the first appellate Court had held that Exhibit A.1 is a sale deed of mortgage by conditional sale. However, both the Courts below

have concurrently found that the defendants are in possession of the suit properties. If Exhibit A.1 is said to be a mortgage by conditional sale, it

was open to the plaintiffs to have filed a suit for redemption of mortgage. However, the plaintiffs have wrongly chosen to file a suit for declaration

to declare that the mortgage had been discharged on the assumption that they are entitled to the benefits of the Debt Relief Acts. Unless the

plaintiffs could show that they are entitled to the benefits of the Debt Relief Acts and that the mortgage stand discharged, in accordance with the

provisions of the said Acts, they are not entitled to the declaration that the mortgage has been discharged. If the plaintiffs had intended to redeem

the mortgage, they should have filed a suit for redemption of mortgage, in accordance with the provisions of The Transfer of Property Act, 1882.

Once the plaintiffs have filed the suit for declaration that the mortgage has been discharged, they cannot abandon their claim and raise a new plea

for redemption of mortgage. Even if it is held that the plaintiffs could pray for the relief of redemption of mortgage, they should have made their

claims by depositing their amounts due under the mortgage, in accordance with the Section 83 of The Transfer of Property Act, 1882. Without a

specific prayer for a specific relief, the plaintiffs are not entitled for the reliefs sought for in the suit filed by them. Further, the plaintiffs had not paid

the proper Court fee payable, in accordance with the relevant provisions of law. In such circumstances, the plaintiffs are not entitled to the reliefs as

prayed for by them.

The learned Counsel appearing for the appellants had relied on the decision of the Supreme Court in Ramlal and Another Vs. Phagua and

Others, in support of his contentions that this Court is at liberty to reappreciate the evidence and record its own conclusion by reversing the orders

passed by the lower Courts, when they have concurrently erred in not appreciating the oral and documentary evidence properly.

On the other hand, the learned Counsels appearing for the respondents had relied on the decisions of the Supreme Court in Gurdev Kaur and

Ors. v.Kaki and Ors. 2006 4 L.W.942, to support of their contentions that the High Court, while exercising its jurisdiction, u/s 100 of the Civil

Procedure Code, 1908, does not, in normal circumstances, interfere with the concurrent findings arrived at by the Courts below, unless there are

substantial questions of law involved. The appellants cannot maintain the second appeal by claiming that the Courts below have wrongly

appreciated the available evidence. In the present case, since no substantial questions of law are involved, the second appeal ought to be

dismissed.

In view of the submissions made by the learned Counsels appearing for the parties concerned and on a perusal of the evidence available on

record, this Court is of the considered view that the plaintiffs who are the appellants in the present second appeal have not shown sufficient cause

or reason to interfere with the findings of the Courts below. Both the trial Court as well as the first appellate Court have found that the mortgage

deed, dated 27.3.1974, marked as Exhibit A.1, is a mortgage by conditional sale and thus, it was open to the plaintiffs to have filed the suit for

redemption of mortgage, instead, the plaintiffs had chosen to file the suit for declaration to declare that the mortgage had been discharged in view

of the provisions of the Debt Relief Act. Both the Courts below have clearly found that the plaintiffs have not substantiated their claims, either by

oral or documentary evidence, to show that they are debtors as defined under the Debt Relief Act, for being eligible to discharge the mortgage in

accordance with the said Act. Further, this Court is of the view that such findings of the Courts below based on facts ought not to be interfered

with by this Court at the stage of the second appeal as held by the Supreme Court in Gurdev Kaur and Others Vs. Kaki and Others, . Hence, the

second appeal stands dismissed, confirming the judgment and decree of the Courts below. No costs.