Payare Lal (Deceased) and Others vs Kamla Devi

S.K. Jain, J.—This is a regular second appeal filed by Pyare Lal Ram Gopal against the judgment and decree of Shri R.L. Anand, Additional District Judge, Patiala, dated November 5, 1984 whereby their appeal against the judgment and preliminary decree of Shri T.R. Bansal, Sub Judge, 1st Class Rajpura, dated June 11, 1981 passed in favour of Kamla Devi, Satya Devi and Jagdish Rai respondents No. 1 to 3, herein, for possession by redemption in respect of shops in dispute on payment of Rs. 20,000/- was dismissed.

Admitted facts are that:-

(i) Babu Ram and Janki Dass were the owners of five shops situated in the abadi of Rajpura. On 9.6.1941 vide registered mortgage deed Ex. PW8/A, they mortgaged all these shops with Ishar Dass for an amount of Rs. 6000/-.

(ii) on 18.5.1943, they effected the second mortgage of the said shops in favour of Basanta Ram, Mam Raj and Kishori Lal for Rs. 10,000/- vide mortgage deed Ex. PW8/B;

(iii) on 8.11.1943, they effected third mortgage in respect of two shops out of the above five shops for an amount of Rs. 15,000/- in favour of Assa Ram. These two shops were in possession of Pyare Lal Ram Gopal appellants herein, as tenants;

(iv) On 9.6.1945, they again mortgaged five shops for a mortgage amount of Rs. 20,000/- in favour of Panna Lal, Pishori Lal and Raghu Nath Dass in equal shares vide mortgage deed Ex. PW5/A.

(v) Basanta Ram, Mam Raj and Kishori Lal redeemed the mortgage of the five shops from Ishar Dass;

(vi) Assa Ram redeemed two shops mortgaged with Basanta Ram, Mam Raj and Kishori Lal;

(vii) thus, then remained only two sets of mortgagees:-

(a) Assa Ram; and (b) Panna Lal, Pishori Lal and Raghu Nath Dass;

(viii) On 4.7.1945, an agreement was entered into between the above said two sets of mortgagees, according to which Assa Ram received Rs. 5000/- from the other set of the mortgaged (Panna Lal, Pishori Lal and Raghu Nath Dass) and admitted himself to be a mortgagee of the shops in question alongwith them;

(ix) Janki Dass having died S/Smt. Kamla Devi and Satya Devi, respondents No. I and 2 herein, stepped into his shoes under a will. Smt. Gomti their mother, also died but in his life time she had bequeathed her share in favour of Smt. Satya Devi respondent No. 2.

(x) Babu Ram also died and was succeeded to by Jagdish Rai Plaintiff-respondent No. 3,

(xi) On the death of Assa Ram, his son Jugal Kishore respondent No. 4 succeeded to him. When Panna Lal died, his son Bachna Ram and daughters Somma, Kampa and Kasturi respondents No. 5 to 8 respectively, stepped into his shoes; and

(xii) On the death of Raghu Nath Dass, his daughter Jhando respondent No. 1 succeeded to him.

Thus, the relationship of mortgagors and mortgagees existed between the plaintiffs, S/Smt. Kamla Devi, Satya Devi and Jagdish Rai on one hand and defendants No.l,2A,2B,2C,2D,3,4 and 5 on the other hand.

Kapur son of Phagu Mal defendant No. 6, Pal Singh defendant No. 8 and Harbans Lal defendant No. 9 were in possession of shop each whereas Pyare Lal Ram Gopal defendant No. 7 were in possession of two shops as tenants under the mortgagees. It is, thus, clear that defendants No. 7 to 9 were tenants under defendants No.l,2A,2B,2C,2D,3,4,and 5.

S/Smt. Kamla Devi, Satya Devi, daughters of Janki Dass and Jagdish Rai son of Babu Ram, Plaintiffs, filed Civil Suit No. 55T/16.4.1980 against the mortgagees-defendants No. 1 to 5 and the tenants-defendants No. 6 to 9 for possession by redemption of all these five shops. The suit was contested.

The mortgagee-defendants admitted the plaintiffs to be the mortgagors pleading that Assa Ram, Panna Lal, Pishori Lal and Raghu Nath Dass had become mortgagees in equal shares of these shops.

Kapur defendant No. 6 put forward a case that his father Phagu Mal was inducted in his shop by Janaki Dass Mortgagor and when the shop was mortgaged with Assa Ram, he was already in possession thereof as a tenant under the mortgagor.

After contest, Shri. T.R. Bansal, Sub Judge 1st Class, Rajpura passed a preliminary decree in favour of the plaintiffs vide his judgment and decree dated 11.6.1981. Pyare Lal Ram Gopal defendant No. 7 and Harbans Lal defendant No. 9 filed Civil Appeal No. 136 T/64 of 24.7.1981 whereas Kapoor Chand defendant No. 6 filed Civil Appeal No.l35-T/84 of 25.7.1981. Both these appeals were dismissed by Shri R.L. Anand, Additional District Judge, Patiala, by one single judgment dated 5.11.1984.

It is that judgment and decree of the first appellate Court which has been appealed against by the defendants Pyare Lal Ram Gopal only and which requires my examination of its sustainability.

I do no find any force in the first argument of the learned counsel for the appellant that the suit instituted on 20.5.1975 was hopelessly time barred as it could be brought within thirty years from the date of the mortgage executed in favour of Assa Ram on 8.11.1943 and the mortgage in his favour having not been redeemed by the previous mortgagees.

Ex.PW17/A and Ex.PW17/B are the entries No. 774 and 775 dated 4th July, 1945 in the register of the petition Writer Ram Kishan Dass. From these entries, it is evident that Assa Ram had received Rs. 5000/- and agreed to be a mortgagee alongwith Panna Lal, Pishori Lal and Raghu Nath Dass in respect of the said shop. With this acknowledgement a fresh period of limitation had started with effect from 4.7.1945 and thus both the Courts below have rightly held that the suit was within limitation. Otherwise also, there is no dispute between the plaintiff and the mortgagees with regard to redemption. The mortgagees were prepared to redeem the property on payment of the mortgage money.

Learned Counsel for the appellant has then argued that the finding of the learned Courts below to the effect that Pyare Lal Ram Gopal had been proved to be the tenants of the mortgagees was not based on evidence on record. In support of his arguments, he has taken me through the evidences of Pyare Lal, Devi Dayal, Nanak Chand, Kartar Singh and Lal Singh DWs 9 to 13 respectively to the effect that Pyare Lal had taken the shops in question on rent from Janki Dass in November/December, 1940, that previously he had been paying rent to Janaki Dass and now to Amrit Lal son of Jugal Kishore son of Assa Ram. The above said oral evidence cannot be believed in view of the fact that the documents produced by Pyare Lal do not support his contention. Ex.DW9/l is notice u/s 34 of the Patiala Income Tax Act calling upon the firm Pyare Lal Ram Gopal carrying out cloth business to furnish return of their total assessable income. Ex.DW9/2 is another notice to the said firm from the Income Tax Department. Ex.DW9/3 is the receipt showing deposit of Rs. 366-11 annas in the treasury as Income Tax on 29-04-1904 by the said firm. Ex.DW9/4 is another receipt showing deposit of Rs. 366-11 annas in the treasury on behalf of the said firm. Ex.DW9/5 is the notice of demand u/s 29 of the Patiala Income Tax Act, 2001 issued to the said firm. Ex.DW9/6 is another receipt showing the deposit of Income Tax amounting Rs. 346-6 annas on 19-6-1906 on behalf of the said firm. Ex.DW9/7 is another such receipt. Ex.DW9/8 is another demand notice issued to the firm by the Income Tax Department. Ex.DW9/9 is the postal receipt showing the deposit of Rs. 193-7 annas on 15.9.1906 in the treasury on behalf of the said firm. Ex. DW9/10 is another notice issued from the Income Tax Department to the said firm Ex. DW9/11 is the licence dated 9.8.1945 for the manufacture & sale of Sugar under Patiala State Sugar Control Order 1909, in whole Sale/Retail Sale in the name of the said firm of Rajpura, Ex. DW9/12 is Licence for sale and storage for sale of cloth in the name of Pyare Lal and brothers, shopkeeper, Rajpura. This licence was valid from 1.4.1945 to 31.3.1946. Ex. DW9/13 is the permission by S.I.C., Rajpura to Pyare Lal, whole Sale Dealer of Khandsari, Rajpura. Ex. DW9/14 is a chit issued from Director Civil Supplies, Patiala in the name of Pyare Lal Ram Gopal, Gur dealer, Rajpura, fixing rates of Sakkar imported at Rajpura from West Punjab. Ex. DW9/15 is another similar chit. Ex. DW9/16 is a letter issued from Nizamat Patiala to the Tehsildar, Rajpura, copy whereof has been sent to Pyare Lal Ram Gopal for information. Ex. DW9/17 is an octroi receipts Ex. DW9/18 is a letter from Nizamat Office, Kandaghat, evidencing the receipt of Rs. 14542 - 3 annas and 11 pai as price of the twenty bales of standard cloth from Pyare Lal Ram Gopal, Standard cloth Dealer of Rajpura; Ex. DW9/19 is a letter from the office of Textile Commissioner, Patiala to District Nazir, Kandaghat. Copy thereof had been sent to Pyare Lal Ram Gopal, Depot Holder, Standard Cloth, Rajpura. Ex.DW9/20 is of Octroi Receipt Ex. DW9/21 is a letter from issued Excise Officer. Kandaghat to M/S Pyare Lal Ram Gopal, Cloth Depot Holder, Rajpura. There is another receipt dated 6.3,2002 from Nizamat Kohistan to M/s. Pyare Lal Standard Cloth Dealer, Rajpura. It has not been exhibited. Ex.DW9/23 is Octroi Receipt Ex. DW9/24 is a transport permit issued to Pyare Lal Ram Gopal, Standard Cloth Dealer, Rajpura. Ex.DW9/25 is of Octroi Receipt Ex. DW9/26 invoice (Bichak) from M/s. Joti Parshad Madan Mohan Saigal, Commission Agents, Delhi to Pyare Lal and brothers, Rajpura. Ex.DW9/27 is a letter from Stiri Sham Lal Aggarwal, Advocate to M/S. Pyare Lal Ram Gopal, Cloth Merchant, Rajpura. Ex.DW9/28 is the copy of counter foils. Ex.DW9/29 is the Bank Pass Book of the firm Pyare Lal, Standard Cloth Merchant, Rajpura. Ex.DW9/30 is a copy of Extraordinary his Highness'' Govt. Gazette, Patiaia dated 9th August, 1943. The Patiala State Cotton Cloth and Yarn (Control) Order, 1943 is contained in the said gazette. Ex.DW9/31 is another such Gazette dated 12.11.1943 containing notification to the effect that unstamped cloth manufactured before 1.8.1943; Ex.DW9/32 is another such Gazette notification wherein the Patiala State Cotton Dealers Licensing Order, 1944 has been published. Ex.DW9/33 is another Gazette notification dated 2.5.1945 wherein it has been ordered that as soon as the cloth is received, the dealer shall furnish a list of the various varieties included in the consignment and wait instructions on the subject before disposing it of. Ex. DW9/34 is a chit issued by Food and Price Control Depot, Patiala to the address of M/S Pyare Lal Ram Gopal, Rajpura; Ex. DW9/35 is notification dated 23.4.1945 fixing the maximum wholesale and retail sale price of the sugar. Another notification is also contained under this exhibit and is dated 25.4.1945 regarding instructions relating to the cloth business; Ex. DW9/36 is the notification regarding Patiala State Sugar Control Order.

Ex. DW9/37 is a Gazette notification where-under Patiala State Gur Control Order, 2001 has been published. Ex. PW9/38 is the Gazette notification dated 14.8.1993 regarding furnishing of information regarding Cotton Cloth and Yarn in stock on 31st August, 1943. Ex. DW9/39 is another Gazette notification dated 9.6.1945 directing the Standard Cloth Depot Holder to dispose of the standard cloth lying with them before 30.6.1945.

None of these documents have been connected with the shops in dispute nor they in any way prove the appellants herein were tenants under the mortgagee. Rather, on the other hand, in view of the admission of Pyare Lal to the effect that now he was paying rent to Amrit Lal son of Jugal Kishore son of Assa Ram, goes a long way to prove that they were tenants of the mortgagees. Pyare Lal has no-where stated that he took the shops on rent from mortgagors.

My attention has also been drawn towards mortgage deed Ex. PW8/A dated 9.6.1941 vide which Babu Ram Janki Dass had mortgaged their five shops for a mortgage amount of Rs. 6000/- in favour of Ishar Dass son of Beli Ram and took the same on rent from the mortgagees on the same date on a monthly rent equivalent to the interest payable on the mortgage amount. This document does not in any way improve the case of the appellants.

In view of the above discussion, I also do not find any merit in the second argument of the learned counsel.

Thirdly and lastly, learned counsel for the appellants has vehemently argued that u/s 61(1) of the Limitation Act a period of 30 years is provided to redeem or recover possession of immovable mortgaged and the said period starts running form the date when the right to redeem or recover possession accrues i.e. from the date of the mortgage itself. This 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 become owner could not be dispossessed. In support of his argument he has 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 itself 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 defendant No. 7 Pyare Lal Ram Gopal, who were the successors of the tenant of the mortgagees, have locus standi to challenge the said redemption.

Identical point was considered by a Single Bench of this Court in S. Harbans Singh v. Mangat Rai 1978(1) RCR 824. In that case Rattan Singh, father of Harbans Singh plaintiff had mortgaged the shop in dispute with possession to Harnam Dass. After the death of Rattan Singh, Harbans Singh got the shop redeemed from the mortgagee. During mortgage, Haraam Dass had given the shop on rent to Mangat Rai defendant-respondent. Harbans Singh then filed a suit for possession against Mangat Rai on the ground that the mortgage having come to an end by redemption, he (Mangat Rai) had no right to remain in possession of the shop in dispute. Mangat Rai contested the suit and pleaded that the mortgage had taken place more than 30 years ago and the plaintiff-petitioner had no right to redeem the same. During pendency of the suit, the defendant-respondent filed an application for the amendment of his written statement. He wanted to add the following words in his written statement:-

"The plaintiff had no subsisting title at the time of redemption as the mortgage, took place more than 30 years ago at the date of alleged redemption. The redemption is bogus and collusive on the part of the mortgagor and mortgagee only to evict the tenant i.e. defendant."

The trial Sub Judge allowed the amendment. This order was challenged by Harbans Singh in revision before this Court. It was contended that the defendant-respondent had admitted himself to be a tenant under the mortgage, and as such he had no right to challenge the faction of mortgage muchless the transaction being begus and collusive on the part of the mortgagor or the mortgagee. Then it was held in the said judgment that the tenant legally could not raise the issue that the redemption of the mortgage was bogus and collusive. Thus the order allowing amendment was illegal on the face of it and amounted to an error of law and was, therefore, set-aside. The revision petition was accepted.

In Jadavji Purshottam Vs. Dhami Navnitbhai Amaratlal and Others, , it was held that mortgagee in possession was not empowered to create lease which would be binding on mortgagor after redemption of mortgage and that the tenant inducted by mortgagee was liable to be evicted on redemption of mortgage. It was further held vide para No. 16 of the said report that the tenant of the mortgagee had no independent rights and hence it was not necessary that he should have been made a party to the suit filed by the mortgagee or the execution application taken out by the mortgagors after the redemption of the mortgage and that his position was akin to that of a sub-tenant whose rights were conterminous with those of the tenant himself. As such the execution application taken against the mortgagee would be binding on his tenant. Having no independent rights of his own the tenant could not contend that the decrees and the execution application were not binding on him as he was not made a party to the proceedings.

Herein also defendant No. 7 Pyare Lal Ram Gopal who were the successors of the tenants of the mortgagee cannot be allowed to plead that the mortgage had taken place more than 30 years ago and the plaintiff had no right to redeem the same or that the transaction of redemption outside the Court was bogus and collusive on the part of the mortgagor or mortgagee. Furthermore, the appellant, who is deriving the possession through the mortgagee who had not filed an appeal cannot dispute the decree for redemption.

Learned counsel for the appellant has argued that every suit instituted, appeal preferred, and an application made after the prescribed period had to be dismissed, although limitation had not been set up as a defence in view of the provisions of Rules of the Limitation Act. But herein this case, plea of limitation had been taken in the written statement and a specific issue namely, issue No. 5, was framed. The Courts below have wrongly decided this issue against the appellant inasmuch as documents Ex. PW17/A and Ex. PW17/B do not disclose any acknowledgement.

In reply, learned counsel for the respondent has submitted that vide agreements Ex. PW17/A and Ex. PW/8 Assa Ram mortgagee had received Rs. 5000/- from Shri Ram Lal etc, became mortgagee to the extent of 1/2 share whereas Panna Lal, Pishori Lal, Kishori Lal and Raghunath Dass had become mortgagees to the extent of other 1/2 in the sum of Rs. 10,000/-. The previous mortgage is dated 9.6.1945, the agreements as mentioned above are dated 4.7.1945. The suit was instituted on 20.5.1975 and, therefore, it was well within limitation. In order to find out whether agreements Ex. PW17/A and Ex. PW17/B dated 4.7.1945 disclosed an acknowledgment, I have carefully examined these documents. Ex. PW17/A is the copy of entry No. 774 and PW17/B is that of entry No. 775 in the register of the document writer. Both are dated 4.7.1945. These entries when translated in English would read somewhat as under:-

*** *** *** *** (Entries omitted - Editor.)

Ex. PW17-A purports to have been signed in Landa script by Assa Ram whereas the second entry has been signed by the other party i.e. Panna Lal, Pishori Lal, Kishori Lal and Basant Ram.

Learned counsel for the appellant has argued that on 20.8.1982, an application under Order 41 Rule 27 C.P.C. was filed before the lower appellate Court with a prayer that the appellants be allowed to get original agreement produced on the record and prove the same by way of additional evidence; that subsequently another application under Order 41 Rule 27 C.P.C. was moved before that Court on behalf of the appellant on 21.2.1983 where it was prayed that the previous application dated 20.8.1982 be considered to have been superceeded and the appellant may be allowed to produce and prove agreement dated 4.7.1945; and that before this Court also Civil Miscellaneous Application No. 2140-C of 1993 seeking permission to place on record agreement dated 4.7.1945 and to prove the same has been filed in order to show that this document was not signed by Assa Ram and, therefore, it did not constitute an acknowledgement. I have carefully examined the original document as also its translation on the record. When read in the light of the above said entries in the register of the Document Writer, I find that it corresponds to entry No. 775 because it was executed by Panna Lal, Pishori Lal, Kishori Lal and Basant Ram and, therefore, bears their signatures. Since Assa Ram was not one of the executants therefore, he did not sign it. This document certainly contains an acknowledgment on behalf of Panna Lal, Pishori Lal, Kishori Lal and Basant Ram mortgagees and read with Ex. PW17/A fully supports the plea of acknowledgement of the respondent. Original agreement which corresponds to the entry No. 774 and was signed by Assa Ram is stated to have been lost and, therefore, copy of the said entry had been proved in lieu thereof by way of secondary evidence. Therefore, it can conveniently be held that the agreement to which entry Ex. PW17/A pertains certainly contained an acknowledgement on behalf of Assa Ram.

Under these circumstances, the said original agreement which is sought to be proved on record by way of additional evidence does not in any way prove that Assa Ram had not executed acknowledgement of the mortgage in question and, therefore, no useful purpose would be served if the application for producing additional evidence is allowed. It will not in any manner disturb the concurrent finding of fact recorded by the two Courts below on the point of limitation. Hence, the application under Order 41 Rule 27 CPC moved on behalf of the appellants is dismissed.

Besides entry No. 774 Ex. PW17/A, Jugal Kishore son of Assa Ram, mortgagee, has admitted in unambiguous terms in his written statements that he had no objection if the property is redemmed provided that mortgage amount is paid. No suggestion to the contrary was put to him on behalf of the appellant.

In view of the above discussion, I am in full agreement with the concurrent finding of the Courts below on issue No. 5 to the effect that the suit was well within limitation.

In the result, this appeal fails and the same is hereby dismissed. However, the parties are left to bear their own costs.