Mukhtiar Singh vs Punjab State and Another

A.L. Bahri, J.—This is plaintiff''s Regular Second Appeal filed against the judgment and decree of Additional District Judge, Barnala, dated June 12, 1990, whereby appeal filed by Punjab State and another against the judgment and decree passed by Sub Judge 1st Class. Barnala, dated November 25, 1986. was allowed and the suit filed by Mukhtiar Singh and other, plaintiffs, was dismissed.

The plaintiffs, Mukhtiar Singh and others, filed the suit for declaration that they were owners in possession of the suit land measuring 86 Kanals 11 marlas, situated in Patti Bir Singh Bhadaur and for grant of permanent injunction restraining Punjab State and the Collector of District Sangrur from interfering in their possession. The land was earlier owned by ancestors of plaintiffs namely Sawn Singh, Rulia Singh and others. They had mortgaged the same for Rs. 462-8 Annas in favour of Basant Kaur. Thereafter Basant Kaur continued in possession of the same. The receipt of payment of the aforesaid amount was thumbmarked by Basant Kaur, the mortgagee, and was attested by Prem Singh. However, the entry in the revenue records continued in the name of Basant Kaur, Subsequently the entry was changed in the name of the provincial government as mortgagee. The plaintiffs and their ancestors continued in possession of the suit land for more than 40 years. Basant Kaur had been seeing their possession. The plaintiffs did not pay and Chakota pr Batai and as such they became owners of the suit land by way of adverse possession. Taking advantage of the wrong entry made in the revenue records in the name of the provincial government, the defendants wanted to forcibly interfere with possession of the plaintiffs, which led the plaintiffs to file the suit.

Contesting the suit, the defendants broadly admitted the factum of mortgage but denied its redemption. The receipt alleged by the plaintiffs, was stated to be wrongly prepared. The name of the provincial government was entered on January 22, 1951, in the revenue records when mutation was sanctioned. The plaintiffs were not in possession of the suit land as owners but their possession was illegal. In 1985 proceedings were taken for leasing out the land. After the death of Basant Kaur the land was mutated in the name of provincial government.

On the pleadings, the following issues were framed:-

(1) Whether the plaintiffs are the owners and in possession of the suit land?

(2) Whether the suit land is mortgaged with the defendants?

(3) Whether the plaintiff is entitled to injunction as prayed for?

(4) Whether written statement has not been filed by the defendants according to law, if so, its effect?

(5) Relief.

The trial Court decided issue no. 1 in favour of the plaintiffs holding them to be owners in possession of the suit land after they had validly redeemed the same on payment of the mortgaged amount against the receipt of Basant Kaur. After redemption the land was no more under mortgage, which was so held under issue No.2. Under issue No.3, the plaintiffs were held entitled to the injunction prayed for. Issue No. 4 was decided against the plaintiffs. It was held that the written statement was properly filed by the defendants. In the result, the suit was decreed.

The appellate Court reversed the finding of the trial Court on issue No. 1. Receipt Ex. P.1 was not relied upon as it was not registered and stamped. The plea of adverse possession was not taken into consideration as no issue was pressed. The appeal was, thus, allowed, as stated above.

The judgment and decree of the lower appellate Court is not sustainable in law as far as the question of non-consideration of the plea of adverse possession is concerned. The narration of facts, as stated above, clearly indicates that the plaintiffs had taken the alternative plea of adverse possession. The plaintiffs claimed to be in possession of the suit land for the last 40 years, which was to the knowledge of Basant Kaur and they did not make any payment of Batai of rent to her. The present defendants have merely stepped into the shoes of Basant Kaur, as alleged. Their written statement shows that possession of the plaintiffs was as that of trespassers, in other words "illegal possession." When such plea of their illegal possession, which is more than 12 years old, stands admitted, there was no question of framing any issue. Further more it was for the defendants to press for such an issue at the relevant time. Without adverting to other matters as to whether the mortgage was redeemed on payment of the mortgage-amount vide receipt Ex. P.1, the plea of adverse possession having been admitted, the suit of the plaintiffs was required to be decreed.

Receipt Ex. P1, assumed for the sake of arguments, was inadmissible in evidence, could be looked at for collateral purposes, it did not require any formal proof being 30 years old. Further more Mukhtiar Singh plaintiff, while appearing as PW1, had categorically stated that the receipt was thumb marked by Basant Kaur. The other witness and the scribe had already died. There being no evidence to the contrary produced the receipt was properly proved or deemed to be proved. The English translation of Exhibit P-1 (as reproduced in the judgment of the Additional District Judge) reads as under: -

I Sardarni Basant Kaur, widow of Sardar Narain Singh Sahib Rayees Bahadur, have received sum of Rs. 462-8 Annas on account of the mortgage of agricultural land measuring 50 Bighas 5 Biswas from Rulia Singh son of Kaka Singh, Jat Bhadaur Patti Bir Singh.

Writing Baisakh 17, 1985," The receipt as such does not show that the mortgage was redeemed as the payment of Rs. 462-8 Annas was on account of mortgage of agricultural land. It does not recite that the mortgage was redeemed. Thus, it is merely a receipt for payment of the amount, on account of the mortgage. Since it did not create or extinguish any right in the immovable property, it does not require registration of stamp. If on payment of the mortgage amount the mortgagors entered into possession and continued as such, it would be deemed to be a case or redemption of the mortgage. It makes no difference whether any mutation was sanctioned on the basis of this receipt or not. the plaintiffs remained in possession of the suit land as owners. The finding of the lower appellate Court in this respect under issue No. 1 is reversed and that of the trial Court is restored.

For the reasons recorded above, this appeal is allowed, The judgment and decree of the lower appellate Court are set aside and that of the trial Court are restored. Parties to bear own costs.