Phuman and Others vs Tara Singh and Others

N.K. Kapoor, J.—This is unsuccessful plaintiffs'' regular second appeal.

Plaintiffs filed a suit for possession by redemption of land as per details given in the head note of the plaint on payment of Rs. 1679.88 paise or any amount which the court may fix.

According to plaintiffs, one Assu, predecessor-in-interest of plaintiffs mortgaged the land for a sum of Rs. 1679.88 paise with Sohawar Singh, Wasawa Singh sons of Jiwan Singh, Sawan Singh and Dial Singh i.e. Assu was the mortgagor whereas Sohawar Singh and Ors. were the mortgagees. According to plaintiffs, the date of mortgage was 5.6.1943. It is the case of the plaintiffs that additional mortgage was created on 4.8.1946 and 24.8.1946. These mortgage deeds were registered in kasur which is now in Pakistan. As per terms of the mortgage deed, the period or mortgage was 9 years. Since the defendants have declined to accept the mortgage amount and deliver back possession of the property, hence the present suit.

Defendants No. 3 and 4 contested this suit, Other defendants were proceeded ex parte. According to contesting defendants, the suit was not within time, it has not been properly valued for the purposes of court fee and jurisdiction and that the plaintiffs had no right to file the suit. Other pleas with regard to maintainability of suit etc. too were raised.

On the pleadings of parties, a number of issue were framed, but primarily the contest revolved around issue No. 1 - whether the suit is within time ? OPP

The trial court on considering the matter came to the conclusion that since the date of mortgage was 8.6.1943 whereas the suit was filed on 26.7.1975, the same was beyond the period of limitation. The trial court also examined the plea of plaintiffs that the period stood extended in view of additional mortgage created on this property as per writing dated 7.8.1946 and 24.9.1946. The trial court came to the conclusion that there is no proof on record that the mortgagees agreed to extend the period of limitation and so for this reason declined to place any reliance upon mere writing upon mutation with regard to alleged additional mortgage deeds dated 7.8.1946 and 24.9.1946.

The appellate court too dilated upon this precise point and held that before the alleged two additional mortgages could be made basis to extend the period of limitation, such an entry is to be acknowledged by the other party. According to lower appellate court, as per Section 18(1) of the Limitation Act, 1963, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability. In case such a liability is accepted, a fresh period of limitation is to be computed from the time when the acknowledgement was so signed. This section further contemplates that in case the acknowledgement of undated, oral evidence can be led to this effect which is, however, subject to the provisions of the Indian Evidence Act, 1872. The court thus observed that the alleged entry with regard to creation of additional mortgages and that too on the copy of mutation does not bear the signatures of any body i.e. by whom acknowledgement is alleged to have been made. Thus the Court held that the date and the particulars of the mortgage deed have not been proved by the plaintiffs in order to show that the suit for redemption was within limitation. Accordingly, the appeal too was dismissed.

Learned counsel for appellants has once again raised almost identical pleas which did not find favour with the court below. The crux of the matter revolved around copy of mutation Exhibit P-l. Vide the aforesaid document, Assu mortgaged the suit land with Sohawar Singh and others by means of mortgage deed dated 8.6.1943 for a sum of Rs. 1480/-. This mutation was sanctioned by the Assistant Collector, IInd Grade on 2.1.1944. In the last column of this document, there are two entries with regard to two oral mortgages dated 7.8.1946 and 24.9.1946. Except for this bare writing, there is no other proof on record in support of the aforesaid two writings which somehow appeared upon a document i.e. mutation which was sanctioned by the Assistant Collector, IInd Grade on 2.1.1944. Concededly, there is no acknowledgement in terms of Section 18 of the Limitation Act by the predecessor-in-interest of the present respondents and this being so, the courts below rightly declined to place any reliance upon this writing in Exhibit P-l. Indeed, authenticity of these writings is not free from doubt. Mutation having been sanctioned on 2.1.1944 in respect of, the registered mortgage deed dated 8.6.1943 this document was complete. How and by which authority the entries with regard to two oral mortgages of the year 1946 have found their place in this document has not been satisfactorily explained by the counsel for the appellants. To me, it appears to be a case of interpolation else these writings could not form part in the register of mutation which was sanctioned way back on 2.1.1944. Such a writing has rightly not been held to be a valid acknowledgement in terms of Section 18 of the Act.

To be fair to the counsel, judgment cited needs to be examined. In case reported as Zora Singh v. Budh Ram and Ors. (1976)78 P.L.R. 418, the court came to the conclusion that the document was jointly executed by the mortgagee and mortgagor concerned, wherein it was specifically mentioned that the land in question was already mortgaged with the mortgagee for a sum of Rs. 300/- and that the said mortgage amount was raised by another sum of Rs. 700/- which the mortgagor had secured against the said land from the mortgagee. The mortgagee has signed in the presence of Sub-Registrar who also appended his certificate to this effect under his endorsement. Thus, it was held that the document constituted an acknowledgement in terms of Section 18 of the Act.

As observed earlier, there is no document on record to infer that the mortgagees during the subsistence of the mortgage agreed to extend the period of limitation by advancing a sum of Rs. 90.40 vide oral mortgage on 7.8.1946 and another like sum vide writing dated 24.9.1946. Unilateral extension is not envisaged under the law. So for the purpose of examining the matter in controversy, original registered mortgage deed is dated 8.6.1943 which could be redeemed within a period of 30 years. Thus, as the suit was filed in the year 1975, both the courts rightly held the same to be barred by limitation. I find no infirmity in the conclusion arrived at by the courts below. Dismissed.