Manohar Lal vs Kirpal Singh and Others

K.C. Puri, J.

CM No. 1818 C of 2012

This is an application for impleading the LRs of Manohar Lal - appellant who has expired on 15.6.2010. The application stands allowed.

The LRs of Manohar Lal - appellant as mentioned in paragraph No. 3 of the application are brought on record, for the purpose of this appeal only.

The amended memo of parties has been placed on the file. The same is taken on record.

Main case.

Challenge in this appeal is the judgment and decree dated 6.4.2009 passed by Sh. Parmod Goyal, Additional District Judge, Faridabad, vide which the appeal preferred by the plaintiff-appellant against the judgment and decree dated 13.4.2007 passed by Sh. Pushpinder Kumar, Additional Civil Judge (Senior Division), Faridabad, was dismissed.

Briefly stated, the plaintiff filed a suit for declaration that he has become owner of the suit properly due to afflux of time. It is pleaded that plaintiff and his predecessor-in-interest are the mortgagees with possession for more than 30 years. The land has not been redeemed during the period of 30 years and as such they have become owner by lapse of period of redemption.

Defendants No. 1, 2, 4 to 9 filed written statement, in which they have pleaded that in revenue record, the capacity of the plaintiff as mortgagee, is not mentioned. In the jamabandi for the year 1961-62 Attrey s/o Mohan has been mentioned as Gair Marusi and in the jamabandi for the year 1971-72 in column No. 5, Kirpal Singh, Rumal Singh s/o Attrey Singh and others has been recorded owner on account of sale. The revenue record of Khasra Girdawari for the year 1997-98 shows the physical and cultivation possession of the contesting defendant/respondents of the land in dispute. Other contents of the plaint were denied.

Defendant No. 10 filed written statement taking preliminary objections regarding maintainability, cause of action, estoppel etc. On merits, it is submitted that neither defendants No. 1 to 9 nor their predecessors ever mortgaged the suit land with the plaintiff. Entry of mortgage, if any, in the record of rights is a paper transaction, fictitious and does not create the relationship of mortgagor and mortgagee between the parties. The impugned mortgage, if any, stands redeemed and the plaintiff has no right to declare himself as owner of the suit property.

From the pleadings of the parties, following issues were framed:

Whetherthe plaintiff has become absolute owner in possession of the suit land by lapse of period of redemption? OPP

Whether the plaintiff has no locus standi to file the present suit? OPD

Whetherthe suit is not maintainable in the present form?OPD

Relief.

In order, to prove his case, the plaintiff examined PW-1 Kamal Singh ARC, PW-2 Anita HRC, Registrar, Gurgaon, PW-3 Tej Pal, Office Kanungo, Faridabad and PW-4 Manohar Lal.

In rebuttal, defendant No. 10 examined DW-1 Sh.N.K. Gaur, Advocate, DW-2 Rameshwar Parshad and produced certain documents.

Learned trial Court returned the finding on issue No. 1 against the plaintiff. Regarding issues No. 2 and 3, it is observed that since defendants No. 1 to 9 have been proceeded ex parte and as such, these issues would be deemed to have been given up. Ultimately, the suit of the plaintiff was dismissed.

Feeling dissatisfied with the above said judgment dated 13.4.2007, the plaintiff preferred the first appeal. The learned Ist Appellate Court vide judgment dated 6.4.2009, dismissed the said appeal.

Still feeling dissatisfied with the judgment and decree dated 13.4.2007 passed by Sh. Pushpinder Kumar, Additional Civil Judge (Senior Division), Faridabad and judgment and decree dated 6.4.2009 passed by Sh. Parmod Goyal, Additional District Judge, Faridabad, the plaintiff-appellant has preferred the present regular second appeal.

During the pendency of the appeal, the plaintiff-appellant has died and his LRs have been brought on the record, as detailed above.

The appellant in para No. 13 of the grounds of appeal has mentioned, that following substantial questions of law have arisen in the present appeal for consideration:-

a) Whether it is obligatory on the part of a mortgagee to be in actual possession of the mortgaged property or whether he can be in constructive possession thereof?

b) In case of usufructary mortgage whether the land can be redeemed after the expiry of the statutory period of redemption and also in view of the limitation provided under Article 27 of the Limitation Act?

c) Whether the impugned judgments and decrees are misreading of evidence particularly when the most vital aspect with regard to the possession of the purchaser in interest of the plaintiff appellant in the year 1952 through a specific rapat roznamcha is a matter of record. Whether the learned courts below have justified in not duly dealing with this aspect of the matter?

Learned counsel for the appellant has submitted that the appellant has been non-suited on the ground that he is not in possession of the suit property. Even if he is not in possession, since the period of more than 30 years has elapsed, as such he has become owner by way of afflux of time. The period of redemption under Article 27 of the Limitation Act has since been extinguished. It is further contended that judgment of both the Courts below is a result of misreading and misinterpreting the evidence.

I have considered the submission made by counsel for the appellant, but do not find any force in that submission. There is concurrent finding of fact that plaintiff is not in possession of the suit property. According to Article 27 of the Limitation Act, the mortgagee become owner of the suit property only if it is proved that from the date when the land should have been redeemed and the same is redeemed within 30 years. There is concurrent finding of fact that plaintiff has failed to prove the date of mortgage or the terms of mortgage. There is nothing on the file that both the Courts below have misread and misinterpreted the evidence on the file. The Full Bench of this Court in authority reported as Ram Kishan vs. Sewa Ram 2008 (1) PLR 1, has held that in case of usufructary mortgage where no limitation is fixed to seek redemption, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pay or tender to the mortgagee or deposit the amount in the Court. Once the mortgage, always the mortgage. So, in view of concurrent finding recorded by both the Courts below, the plaintiff has failed to prove that right to redemption has elapsed even if the mortgage is proved and as such, both the Courts below have rightly dismissed the suit of the plaintiff.

So, the questions of law raised above, stand determined against the appellant, in view of the discussion made above. Consequently, the appeal is without any merit and the same stands dismissed.