Piara Singh vs Bawa Singh and others

B. Rai, J.—The plaintiff filed a suit for recovery of possession by way of redemption of land measuring 84 Kanals 13 Marlas comprised in Khasra Nos. 35/19/2(312), 20(80), 21(80), 22/1(212), 34/16(712), 17(80), 24(711), 25(74), 60/3(77), 4(616), 5/1(53), 5/2(24), 59/1(77), 34/18 min charda (35) as entered in Jamabandi for the year 198384 situated is the area of village Fatehabad, Tehsil Tarn Taran, District Amritsar, on payment of Rs. 97,000/ by the plaintiff of Harnam Kaur defendant No. 1. It is stated in the plaint that Piara Singh plaintiff being the owner of 84 Kanals 13 Marlas of land mortgaged with possession of land in dispute with Harnam Kaur, defendant No. 1 for Rs. 36,000/ vide Mortgage Deed dated July 8, 1968, the suit land was redeemable after five years and the mortgagee was entitled to appropriate the unsufruct of the land in lieu of interest. The plaintiff further mortgaged the land with Darshan Singh for Rs. 97,000/ on November 7, 1971 and it was Darshan Singh who had to pay off the previous mortgage amount of Rs. 36,000/ to Harnam Kaur. Darshan Singh did not redeem the mortgage and further submortgaged 32 Kanals out of the entire land for Rs. 36,000/ with Harnam Kaur on April 16, 1973 and thereafter on January 7, 1975 he sub mortgaged the remaining land of 52 Kanals 13 Marlas for Rs. 61,000/ with Harnam Kaur and thus the land in dispute was mortgaged with Harnam Kaur for a total consideration of Rs. 97,000/. It is undisputed that Bawa Singh, Pal Singh and Arjan Singh are the sons of Harnam Kaur and they allege to be in possession of the suit land as vendees from Udham Singh and Baldev Singh co sharers. Defendant Nos. 4 and 6, namely, Jaswant Kaur, Swinder Kaur and Gurmit Kaur are the successorsininterest of aforesaid Darshan Singh.

It is mentioned here that application filed by Piara Singh plaintiff under Section 4 of the Redemption of Mortgages Act for redemption of the mortgage, was dismissed by the Collector, Tarn Taran.

Defendants contested the suit. Harnam Kaur defendant No. 1 in her separate written statement admitted the execution of the mortgage deed and that the possession was transferred to her through her sons, namely, Bawa Singh, Pal Singh and Arjan Singh, defendants Nos. 7, 8 and 9. She pleaded that later on her sons purchased some land from Baldev Singh and Udham Sigh who were cosharers in the joint khata and now they are in possession of the suit land as vendees/cosharers. The case of Harnam Kaur defendant No. 1 is that the plaintiff is not entitled to get physical possession of the land without partition.

Bawa Singh, Pal Singh and Arjan Singh, defendants 7, 8 and 9 filed a joint written statement and inter alia stated therein that they had purchased a share in the joint khata from Baldev Singh and Udham Singh sons of Charan Singh, vide Registered Sale Deed dated June 29, 1971; and that they were in possession of the whole of the land as cosharers and could not be dispossessed without partition of the joint khata. They specifically denied that they were in possession of the land in dispute under their mother Harnam Kaur. They further pleaded that if they are not held in possession as cosharers, then they are in possession as tenants under the plaintiff. They, thus, prayed for dismissal of the suit of the plaintiff.

It may be noted here that defendants 2 to 6 did not contest the suit and the suit qua them was decided ex parte.

The plaintiff filed replication controverting the pleas taken by the defendants in their respective written statements and reiterated the averments contained in the plaint.

On the pleadings of the parties, the following issues were framed by the trial Court :

(1) Whether the defendants Bawa Singh, Pal Singh and Arjan Singh are in possession of the suit land; if so, in what capacity ? OPP.

(2) If issue No. 1 is proved, whether defendants Bawa Singh, Pal Singh and Arjan Singh are entitled to retain possession even after the redemption of the mortgage ? OPD

(3) Whether the suit is bad for nonjoinder of necessary parties ? OPD

(4) Relief.

The trial Court after appreciating the evidence and going through the revenue record, Exhibits P1, P2, P3 and P4, as also Jamabandi Exhibit D2, Kahsra Girdawari Exhibit D3, Jamabandi Exhibit D4 and Khasra Girdawari Exhibit D5 besides taking into consideration Jamabandis and Khasra Girdawaris, Exhibits D7 to D11 which were prepared later on, decided Issues 2 and 3 in favour of the plaintiff and against the defendants. Under Issue No. 1, it was held that Harnam Kaur was in cultivating possession of the land in suit and defendants Nos. 7 to 9 were in possession of the suit land as tenants under Harnam Kaur. The suit of the plaintiff was decreed with costs against the defendants for possession of land measuring 84 Kanals 13 Marlas comprising in Khasra Nos. 35/19/2, 20, 21, 22/1, 34/16, 17, 24, 25, 60/3, 4, 5/1, 5/2, 59/1 and 34/18 min charda as mentioned in the Jamabandi for the year 198384 situated in the area of village Fatehabad, Tehsil Tarn Taran, District Amritsar, on payment of Rs. 97,000/ by the plaintiff to Harnam Kaur defendant No. 1. It was also directed by the trial Court that the plaintiff shall deposit the mortgage amount in the Court within one month from the date of decision, viz. September 24, 1988.

Feeling aggrieved, Bawa Singh, Pal Singh and Arjan Singh (defendants Nos. 7 to 9 before the trial Court) went up in appeal which was heard by the Additional District Judge, Amritsar. An application was moved by the said defendants to the effect that proper Issues were not framed by the trial Court. The application was allowed by the lower appellate Court and the following Additional Issues were framed :

(1) Whether the defendant No. 1 installed the tubewell and constructed a room as contemplated and in pursuance of the term of mortgage deed dated 8.7.68 ? OPD

(2) Whether the defendants No. 7 to 9 have made any improvement in the land. If so, to what extent ? OPD

(3) Whether the defendants Nos. 7 to 9 are entitled to the compensation of improvement. If so, to what extent ? OPD

A report was accordingly called from the trial Court. The trial Court submitted the report dated August 24, 1992 vide which Additional Issue No. 1 was decided in favour of the defendants to the effect that Harnam Kaur defendant No. 1 had installed one tubewell bore along with Chobacha and Khal and had fitted diesel engine on the bore in the land bearing Khasra No. 34/17 which was of the value of Rs. 38,551/. Under Additional Issue No. 2, it was held that defendants No. 7 to 9 had installed two tubewell bores in the suit land with two rooms Chobacha, Khals and Khurlies and fitted electric motor for working the tubewells and total value of all these articles was Rs. 1,22,872/. Under Additional Issue No. 3, it was held that defendants 7 to 9 were entitled to only Rs. 1,00,000/ as compensation for improvements made by them on the suit land from the plaintiff. This issue was accordingly decided in favour of defendants Nos. 7 to 9.

Piara Singh field objections to be aforesaid report, of the trial Court, dated August 24, 1992.

After hearing the counsel for the parties and discussing the case law on the point, the lower Appellate Court modified the findings of the trial Court on Issue No. 1 and it was held that the property in dispute is joint and by purchase of the property by defendants No. 7 to 9, they have become the co sharers and their physical possession will not be disturbed till the partition of the land. The plaintiff was, however, entitled to get the land redeemed and he was also held entitled to a decree for redemption on payment of Rs. 97, 000/ to Harnam Kaur and on payment of the said amount the mortgage shall stand redeemed. The plaintiff was held entitled to the symbolical possession of the land. Defendants Nos. 7 to 9 were allowed to retain physical possession of the property as cosharers. It was further held that neither defendants No. 7 to 9 will be entitled to compensation to the extent of Rs. 1,00,000/ nor will Harnam Kaur be entitled to compensation to the extent of Rs. 38,551/. They were, however, at liberty to remove the bores, other building material, electric motors etc. and could get Rs. 600/ as per terms of the mortgage deed in case bore material was left at the spot.

Vide judgment and decree, dated May 27, 1993 of the lower appellate Court the appeal was accordingly allowed partly to the extent that a decree was passed in favour of the plaintiff to redeem the land mortgaged, on payment of Rs. 97,000/ to Harnam Kaur who had already received the money and the land shall stand redeemed. The plaintiff was entitled to the relief of symbolical possession. It was also held that the possession of defendants No. 7 to 9 was not to be disturbed till the land was partitioned as they were cosharers with the plaintiff on the basis of the Sale Deed, Exhibit D1. It was further held that Harnam Kaur defendant No. 1, Bawa Singh, Pal Sigh and Arjan Singh, defendants Nos. 7 to 9 were not entitled to any compensation as granted by the trial Court vide report, dated August 24, 1992, except that they could remove the bore material, kothas, electric motors etc. installed thereon and Harnam Kaur was entitled to receive Rs. 600/ only if the bore was allowed to be retained there in the land in dispute.

Undaunted by the decision of both the Courts below, Piara Singh appellant has come up in this Regular Second Appeal, while Bawa Singh, Pal Singh and Arjan Singh defendantrespondents Nos. 1 to 3 have filed crossobjections.

I have heard the learned counsel for the parties and have gone through the record carefully. As per jamabandi for the year 198384, Piara Singh appellant was owner of land measuring 84 Kanals 13 Marla in the revenue estate of village Fatehabad, Tehsil Tarn Taran. This land was mortgaged with possession by him with Harnam Kaur respondent No. 4 for Rs. 36,000/. The land was to be redeemed after five years. Piara Singh further mortgaged the entire land with one Darshan Singh for Rs. 97,000/. The amount of Rs. 36,000/ was kept with him to be paid to Harnam Kaur, previous mortgagee. Darshan Singh did not redeem the mortgage and further submortgaged 32 Kanals out of the entire land for Rs. 36,000/ with Harnam Kaur. Thereafter, on January 7, 19(sic) remaining land measuring 52 Kanals 13 Marlas was also mortgaged with Harnam Kaur for Rs. 61,000/. Thus, the land came in possession of Harnam Kaur as mortgagee for a total consideration of Rs. 97,000/.

Thus, Piara Singh was getting the land cultivated through Harjit Singh, Bawa Singh, Pal Singh and Arjan Singh. In other words, Piara Sigh was in cultivating possession of abovesaid land through Harjit Singh, Bawa Singh, Pal Singh and Arjan Singh. Udham Singh and Baldev Singh were also cosharers in joint Khata. Bawa Singh and his brothers purchased land measuring 56 Kanals 9 Marlas from Udham Singh and Baldev Singh, comprised in Khewat Nos. 34, 60 and 35 as per jamabandi for 196869 and as mentioned in Registered Sale Deed, dated June 29, 1971, the possession of 56 Kanals 9 Marlas was delivered to them. By virtue of this, Bawa Singh etc. became cosharers in abovesaid Khewats, i.e. 34, 60 and 35 of Khata Nos. 283/1, 569/1 and 569/2. It is not the case of Harnam Kaur that possession of mortgaged land was taken by her through her sons Bawa Singh etc. and they are in possession of entire mortgaged land. It is also nowhere mentioned in Mortgage Deeds Exhibits P3 and P4 that possession of land was delivered to Harnam Kaur mortgagee through her sons.

It was argued on behalf of the appellant that Bawa Singh, Pal Singh and Arjan Singh sons of Harnam Kaur are in cultivating possession of the suit land as tenants under Harnam Kaur mortgagee and they being tenants under the mortgagee, on redemption are to go with mortgagee and bound to hand over the possession. There is no quarrel with the legal proposition that tenant of mortgagee is to go with the mortgagee on redemption and is not entitled to retain the possession of land mortgaged. But it is neither the case of Piara Singh appellant that Bawa Singh, Pal Singh and Arjan Singh are in possession of land as tenants under Harnam Kaur, nor is there any documentary evidence to that effect. His case, in fact as pleaded, is that Harnam Kaur mortgagee herself was unable to cultivate the land personally. Defendants Nos. 7 to 9, i.e. Bawa Singh, Pal Singh and Arjan Singh who are her sons cultivated the land on behalf of Harnam Kaur and are in possession of land.

A careful reading of written statement would show that it is not the case of defendants Nos. 7 to 9 that they are in possession of suit land as tenants under Harnam Kaur. The case of Harnam Kaur is that possession was transferred to her through her sons, defendants Nos. 7 to 9, but as noticed above, no revenue record or other documentary evidence in support of that averment is available on the record. According to Harnam Kaur, after possession was delivered to her through her sons, defendants 7 to 9 purchased the share from Baldev Singh and Udham Singh cosharers in the joint Khata, through a valid Sale Deed, dated June 29, 1971. Defendants Nos. 7, 8 and 9 put forth the case that they were in possession of the suit land on their account as co sharers and not under Harnam Kaur. They had purchased the share in joint Khata vide Registered Sale Deed, dated June 29, 1971 from Baldev Singh and Udham Singh. A perusal of Sale Deed, dated June 29, 1971, Copy Exhibit D1, would show that through this Sale Deed, Bawa Singh, Pal Singh and Arjan Singh purchased land measuring 56 Kanals 9 Marlas out of land mentioned therein from Baldev Singh and Udham Singh, cosharers. It further shows that Baldev Singh and Udham Singh were cosharers to the extent of 1/2 share in land measuring 169 Kanals 6 Marlas. leaving aside 28 Kanals 4 Marlas comprised in Khasra Nos. 9/616, 10 min/17, North/12/80, 18 Min/410, South, 23/711 of rectangle No. 34. Remaining 56 Kanals 9 Marlas out of Khasra Numbers mentioned in Sale Deed were sold to Bawa Singh etc. for a consideration of Rs. 1,13,000/ who are recited to be already in possession as per jamabandi for the year 196869, Exhibit D1/P1. In the jamabandi Exhibit D1/P1, one Ajit Singh, Bawa Singh, Pal Singh and Arjan Singh are recorded in possession of Khasra Nos. 16, 17, 18, 24, 25 of Rectangle No. 34 and Khasra Nos. 3, 4, 5/2 and 5/1 of rectangle No. 60, as tenants through Piara Singh. The fact remains that Bawa Singh, Pal Singh and Arjan Singh were already in possession of land purchased by them on June 29, 1971 and by virtue of purchase from Baldev Singh and Udham Singh cosharers, they stepped into their shoes and as such became cosharers in the joint Khata and in view of law laid down by a Full Bench of this Court in Bhartu v. Ram Sarup, 1981 P.L.J. 204, they are entitled to retain the possession of 56 Kanals 9 Marlas through, of course, subject to partition. In that regard, the conclusion arrived at by both Courts below does not call for any interference by this Court and the same is affirmed. Appeal being meritless is dismissed.

The contentions raised in support of Crossobjections, in view of findings recorded by first appellate Court, are rejected and crossobjections are also dismissed. Parties in both events would bear their own costs.