Pitamber Singh vs Sawan Singh (deceased)

N.K. Kapoor, J.—This is defendant''s regular second appeal against the judgment of the District Judge, Ambala, whereby the appeal filed by them against the judgment and decree of the trial Court was dismissed.

Briefly put, Sarup Singh, predecessorininterest of the present plaintiffs, mortgaged his land measuring 19 Killas and 8 marlas comprised in khasra Nos. 1714, 1718, 1719 and 1720 with one Lal Singh for a sum of Rs. 1360/ on 10.6.1923. Lal Singh sold his mortgage rights to Mangat Singh on 3.11.1923 who in turn sold 1/2 of it to one Hans Raj and the other half share to Heera s/o Maru and Munshi s/o Dalip. Subsequently by mutual agreement land comprised in khasra No. 1714 and 1718 was released from the mortgage and so the remaining land comprised in Khasra Nos. 1719 and 1720 remained mortgaged. This was duly reflected in the revenue record vide mutation dated 8.7.1944. According to plaintiffs, land comprised in Khewat Khatauni No. 515/827, Khasra Nos. 102/1 103/3/2, 4 and 5 were allotted in lieu of Khasra Nos 1719 and 1720. It is further the case of the plaintiffs that they filed an application for redemption of land on payment of mortgage amount before Assistant Collector Ist Grade, Ambala, who, however rejected the same without going into the merits of the case. The Collector vide order dated 24.12.1970 rejected this application, yet permitted the petitioners (now plaintiffs) to file a fresh application according to law. It is in evidence that the plaintiff filed another application but the same was dismissed being incompetent in view of the specific bar contained in Section 13 of the Redemption of Mortgage (Punjab) Act, 1903, and so the plaintiff filed the present suit.

The defendants filed written statement admitting therein that the land measuring 19 kanals 8 marlas allotted in lieu of earlier Khasra Nos. is mortgaged with possession with the defendants. However, the defendants averred that since the mortgage had no been redeemed in time, the defendants have become owner of the suit land. The defendants further controverted the various averments made in the plaint by filing a detailed written statement.

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

Whether the suit is within limitation ?

Whether the plaintiffs have locus standi to file the suit ?

Whether plaintiffs have succeeded to the 1/4th share of the land in dispute left by Raghbir Singh deceased ?

3A. Whether cause of action arose in favour of plaintiffs on 28.9.1971 as alleged in para No. 19 of the amended plaint ? OPP

3B. Whether defendants acknowledged themselves to be mortgagees on 26.7.1970 as alleged in para No. 19 of the amended plaint ? If so, to what effect ? OPP.

3C. If issue No. 3B is proved, whether the admission of the defendants is wrong and against law ? If so, to what effect ? OPP

3D. Whether there was any agreement between Hans Raj etc. on the one hand and mortgages on the other hand as alleged in para No. 7 of the plaint ? OPP.

Relief.

The trial court discussed issue No. 1, 3A, 3B, 3C and 3D jointly as these were found to be interconnected. The trial Court on consideration of various relevant material on record came to the conclusion that the suit of the plaintiffs is within limitation. The trial Court further came to the conclusion that the land comprised in Khasra Nos. 1714 and 1718 measuring 9 Bighas 3 Biswas was released and the mortgage amount was held liable to be recoverable from the remaining khasra Nos. i.e. 1719 and 1720 and that mutation No. 1022 in this regard was attested on 8.7.1944 and this would amount to renovation of contract and so the suit filed is within the permissible period. Issue No. 2 was decided in favour of the plaintiffs. Issue No. 3 was conceded by the defendants since they did not advance any argument in respect of the same. Accordingly the trial Court in view of its findings on Issue No. 1, 2, 3, 3B, 3C and 3D, the suit of the plaintiffs was held to be within limitation and thus the relief sought i.e. for possession of Rs. 1360/ was granted in favour of the plaintiffs with a specific stipulation that this amount be paid on or before 20.12.1978 and in case the plaintiffs fail to pay the mortgaged money on or before 20.12.1978, they shall be debarred from enforcing their right of redemption. Feeling dissatisfied with the judgment and decree of the trial Court, the defendants filed an appeal before the District Judge, who once again examined the matter on facts as well as on law in the light of the submissions made by the counsel for the parties. The main emphasis of the counsel for the appellants before the lower appellate Court was that the conclusion of the trial Court that the release of two khasra numbers from the original mortgage cannot be construed as novation of contract. Secondly, the trial Court erred in construing recital in mutation No. 1022 as an acknowledgement in terms of Section 18 of the Indian Limitation Act. This way the trial Court erred in law in extending the period of limitation which stood expired.

The learned counsel further contended that in view of the order of the collector dated 24.12.1970, at best suit could be filed within one year i.e. by 24.12.1971 and since the present suit was instituted after the expiry of period of one year, the same was per se barred. The lower appellate Court examined the various pleas raised by the appellants but found no merit in any one of the pleas and consequently dismissed the appeal vide judgment and decree dated 5.12.1979.

The first submission of the learned counsel is that admittedly the application filed by the plaintiffs under Section 4 of the Redemption of Mortgages (Punjab) Act, 1903, was dismissed by the Collector vide order dated 24121970, Annexure P6. As per Section 12 of the Act, any party aggrieved, by an order made under Sections 6, 7, 8, 9, 10 or 11 has a right to institute a suit to establish his rights in respect of the mortgage, but subject to the result of such suit, if any, the order shall be conclusive. Though no period of limitation is prescribed under Section 12, yet in view of the language Article 14 of the Limitation Act, leaves little doubt that the period of one year is prescribed for a suit (to set aside an order of an officer of the Government). Elaborating this the counsel urged that the present suit, indeed, has been filed to get rid of the bar created by the Collector vide order dated 24.12,1970 Annexure P6, for which the period prescribed as per Article 14 is one year. Since the suit has been filed on 6.3.1972, both the Courts erred in law in treating the suit within period of limitation. The counsel next contended that both the Courts have erred in law in treating the change effected in the mortgaged land vide mutation No. 1022 dated 8.7.1942 as novation of contract and thereby extending the period of limitation which stood expired if the time is taken from the original mortgage dated 10.6.1923. Even the conclusion of the lower appellate court that the same amounts to acknowledgement has been seriously contested by the appellants.

The crux of the matter is as to whether the order of Collector dated 24.12.1970 Annexure P6 can be said to have been passed under the provisions of the Act on the merits of the case and, of no, whether bar of limitation as per section 12 of the Act would be applicable in the cases dismissed/rejected for the reason other than the merit of the dispute. This summary procedure was enacted solely with a view to provide summary procedure for redemption of mortgages of small holding of agricultural land. Under this Act, a mortgagor is entitled to relief subject to the order of the Collector on depositing the amount of mortgage and the Collector after making summary enquiry is entitled to grant or refuse relief as the circumstances require i.e. to say in case the petition filed under section 4 is in compliance the same would be granted by the Collector without unnecessary delay. In the instant case, there was no dispute between the parties with regard to the land mortgaged, amount of mortgage as well as the names of the parties i.e., mortgagors/mortgagees. However, before this application could be decided on merits, an objection was raised by the respondentmortgagees with regard to addition of certain persons who were said to have no right as mortgagors i.e. objection with regard to impleading of unnecessary parties. The Collector heard the parties with regard to this aspect of the matter alone and came to the conclusion that the application filed is infirm and thus cannot be proceeded with and so rejected the same. However, the Collector vide his order granted permission to the petitioner to file fresh petition. It is this order of the Collector which has been now made basis by the appellants for their contention that the present suit ought to have been filed within one year of its dismissal. From a bare perusal of the order of the Collector, it is revealed that the Collector has carefully refrained from coming to any decision on the merits of the dispute between the parties. Since this cannot be deemed to be an order under the Act, there was no need for the mortgagor to bring such a suit under section 12 of the Act within one year from its dismissal. In somewhat circumstances the Court examined the fact of dismissal of the application for redemption on the ground that where the collector observed that this matter is too complicated to be decided by him and so he decided in a civil Court, whereupon the suit was filed to get rid of the Collector''s order but not within the period of limitation as prescribed under Article 14 of the Limitation Act the Division Bench in case Dewan Chand v. Raghbir Singh and others, 1965 PLR 969, came to the conclusion that no suit to set aside the Collector''s order was necessary and the present suit as considered a simple suit to establish the plaintiff''s right in the land and held the same within limitation. This view approved by the Apex Court in case Sheo Lal v. Sultan, 1970 PLJ 698. The facts were that the Collector did not decide the suit on merit but rejected the application filed under Section 4 of the Act on the ground that the same raises complicated questions of facts and law and thereby he declined to exercise summary jurisdiction under the Act. On institution of suit, identical plea of limitation that the suit ought to have been filed within one year was raised which contention was accepted by the trial Court but on appeal a decree for redemption was granted which was confirmed by the High Court in second appeal. In this context the Court held that it is not the form of order of dismissal but its substance that will, determine the application of the period of limitation prescribed by Article 14 of the Limitation Act. The order passed by the Collector, in fact, raises no cloud on the tide of the mortgagor. He, in fact, has not considered the application on merits, rather permitted the applicant to file fresh application (though got permitted by the Act). Thus, in these circumstances, the Apex Court held that such an order is not one which requires to be set aside. Recently, the Apex Court in case Harbans Singh v. Guran Ditta Singh, 1991 PLJ 312 : 1991(2) R.R.R. 7, reiterated the earlier view in Sheo Lal''s case. It further held that applying the principle of justice, equity and good conscience though Section 60 of the Transfer of Property Act per se did not apply, the principles of Section 60 would apply. It was further held that if the application for redemption was dismissed under Section 11 of the Act and became conclusive under Section 12, the mortgagor''s right to redemption is no barred. A suit for redemption under Section 60 of the Transfer of Property Act will thus be maintainable and that the civil Court has jurisdiction to grant the decree of redemption. Contention of the counsel that there has been no novation of contract is also without any merit. Section 62 of the Contract Act deals with the effect of novation, rescission and alteration of contract. As per this, if a party to a contract agrees to substitute a new contract for it, the original need not be performed. Mutation No. 1022 attested on 8.7.1944 clearly obliters the earlier mutation of 1923. In fact, this fact has been acknowledged by the appellants while filing the written statement in the proceedings for redemption before the Collector on 29.7.1970. Alternative plea that no writing has come on record by which it could be inferred the concurrence of the mortgagee is also without substance. Admittedly, the original mortgage deed dated 10.6.19232 was without any writing and hence there was no need for a fresh writing which fact is other reflected in Mutation No. 1022 of 1944.

Both the Courts on appraisal of evidence have come to a finding that there has been novation of contract as per writing dated 8.7.1944. This is a finding of fact and there is no jurisdiction to entertain a second appeal on the ground erroneous finding of fact, howsoever gross or inexcusable the error may seems to be. Even otherwise, the defendants have not objected to the change in the mortgaged land and have also admitted to be mortgagee only of the remaining land as mentioned in mutation No. 1022 which can be safely construed as an acknowledgement. This way also the suit filed by the plaintiffs is well within limitation. I, thus, find no merit in any of the contentions raised by counsel for the appellants. No other point has been urged. The appeal is accordingly dismissed. No costs.