Smt. Chano (Died) and Others vs Partap (Deceased) and Others

N.K. Kapoor, J.—This is defendant''s regular second appeal.

Plaintiffs filed a suit for declaration that the mortgage in dispute stands foreclosed and that the plaintiffs have become owners of the suit land and that the defendants be restrained from interfering with their possession over the suit land.

Briefly put, it is the case of the plaintiffs that originally one Sis Ram 0s/o Badlu mortgaged with possession his agricultural land fully described in para No. 1 of the plaint to one Bhola mutation of which was attested on 11.11.1925. Sub-sequently, Chandgi s/o Bhola sold his mortgage rights to Baldeva and Banwari and mutation was sanctioned on 12.7.1984. After the consolidation of holdings in the village, area measuring 22 Kanals 2 Marias was allotted in lieu of the land originally mortgaged by Sis Ram. Since the mortgagors have lost their right of redemption, the mortgage stands foreclosed as the same had not been redeemed within a period of thirty years.

Defendant admitted the factum of mortgage and subsequent sale of mortgage rights by Chandgi s/o Bhola to Baldeva and Banwari. The defendant also admitted that the suit land was allotted after the consolidation of holdings in the village. However, the assertion of the plaintiffs that the mortgagors have lost all the rights of redemption and that the mortgage stands foreclosed by operation of law was denied. By way of additional plea, it was stated that the defendant paid a sum of Rs. 600/- to Smt. Dharkan and Partap in the presence of Moola and others on 10.5.1958 thereby redeeming the mortgaged land. The defendant further stated that she got possession of the land from Smt. Dharkan and Partap and a mutation to this effect was also attested in her favour. The defendant further stated that application for correction of Khasra girdawari from kharif 1958 to Rabi 1964 too was decided in her favour.

On the pleadings of the Parties, following issues were framed :-

Whether the Plaintiffs have become owners of the land in suit on account of the same having not been redeemed within the prescribed period ?

Whether the defendant paid Rs. 600/ to Smt. Darkan and Partap on 10.5.1958 as alleged, if so, its effect ?

Whether the Plaintiffs are entitled to the injunction prayed for ?

Whether the plaintiffs have become owners of the land in suit by adverse. Possession as pleaded in replication ?

Relief.

The trial Court decided issues No. 1 and 2 in favour of the Plaintiffs holding that defendant failed to get the land redeemed within the statutory period of 30 years and so the mortgagee rights of the plaintiffs have ripened into full ownership. Under issue No. 3, it was held that the plaintiffs are in possession of the suit land. Resultantly, it was held that issue No. 4 has become redundant. The suit of the plaintiffs was accordingly decreed by the trial Court.

Before the appellate Court, the defendant once again pressed her claim of having made payment on 10.5.1958 to prove that the mortgage stands already redeemed. The Court once again discussed the evidence threadbare but found no ground to vary the conclusion arrived at by the trial Court. Repelling the contentions raised by the appellant, the Court observed that there is no mention of the receipt alleged to have been issued by the plaintiffs having received a sum of Rs. 600/- as alleged by the defendant. In fact, there is no mention of written receipt in the written statement. It is precisely for this reason that the Court declined to place any reliance upon the same. Otherwise too, the Court held that since it pertains to a transaction of payment of more than Rs. 100/- which would have the effect of extinguishing the mortgage of immovable property and so the same requires compulsory registration. Reliance was placed upon the decision of this Court in case reported as Gurdial Singh v. Kartar Singh AIR 1964 P&H 141; Hazur Singh Vs. Jaggar Singh and Others, ; and Kundan Singh v. Fauja Singh 1979 P.LJ. 444. Consequently, the receipt was discarded. The appellate Court also examined the contention of the appellant whether a document can be construed to be a part performance of the contract in terms of Section 53A of the Transfer of Property Act for protecting her alleged possess!" kin over the land at the spot. This too was found without any substance, firstly for the reason that before any such inference is drawn it is to be proved as a fact whether there has been transfer of possession on the basis of such a receipt. The Court after carefully examining the various documents in the nature of entries in Khasra girdawari and Jamabandi came to the conclusion that the plaintiffs have remained in cultivating possession of the suit land uninterruptedly during all these years and so found no substance in this contention of the appellant-defendant that there has been a transfer of possession on the basis of receipt which has been discarded. Consequently, the appeal too was dismissed.

Challenging the concurrent findings recorded by the Courts below, the learned counsel for the appellant once again made reference to the receipt dated 10.5.1958 vide which a sum of Rs. 600/- was paid to the plaintiffs pursuance to which mutation was duly entered and there was been transfer of possession in favour of the defendant. According to the counsel, vide order Exhibit D-5 dated 8.7.1964 Assistant Collector 2nd Grade ordered for correction of Khasra girdawari from Kharif 1958 to Rabi 1963 which clearly prove their possession and so it is a case of misreading of revenue entries by the Courts below. I find these submissions devoid of any substance. A bare perusal of the written statement makes it abundantly clear that the same does not make mention of the alleged receipt dated 10.5.1958 and so it is reasonable to infer that the same came into existence after the filing of the written statement. This evidence of the defendant was beyond her pleadings and so the Courts below did not place any reliance upon the same. Otherwise too, this document has been found to be inadmissible and rightly so-as the same require compulsory registration as held by various judicial pronouncements of this Court. Even reliance placed by the appellant upon Section 53A of the Transfer of Property Act as well as the fact that there has been transfer of pos- session have been factually found to be devoid of any merit. I find no infirmity in any of the conclusion arrived at by the lower appellate Court. The defendant to prove possession has placed implicit reliance upon the order of the Assistant Collector 2nd Grade dated 8.7.1964 vide which entries for the period from Kharif 1958 to Rabi 1963 were ordered to be corrected. Admittedly, this was an ex parte order and without any elaborate inquiry. Before and after this period, the revenue entries in the nature of Khasra girdawari and jamabandi continue to record, the plaintiff to be in actual cultivating possession ( as has been noticed by the lower appellate Court in para II of the judgment). Even the plea of the appellant in the terms of Section 53A of the Transfer of Property Act is misplaced. Had there been transfer of possession pursuance to the alleged receipt dated 10.5.1958 there would have been change in the entries in the revenue record hence there-after whereas as per fact it is some five years thereafter that an application was filed in April, 1963. Precisely for this reason, the Court below failed to place any reliance and rightly came to the conclusion that the land having not been redeemed within the stipulated period, the plaintiffs have become owners by lapse of time. Thus, finding no merit in the appeal, the same is consequently dismissed. No order as to costs.