Syed Amanulla vs Khasim Khan and Others

Anand Byrareddy, J.

Heard the learned counsel for the appellant and the learned counsel for the respondents.

The appellant was the first defendant before the trial court. It was the case of the plaintiff that the second defendant and his mother, Lalithamma were the owners of the suit schedule property and they had mortgaged the suit schedule property with possession in favour of the first defendant on 10.12.1962 under a registered deed and the possession of the suit schedule property was delivered to the first defendant. The first defendant was in possession as the mortgagee. The term was for a period of 15 years and the mortgage amount was Rs. 2,500/-. The mortgage was redeemable on 9.12.1977. The second defendant and his children are said to have sold the suit schedule property to the plaintiff under sale deeds dated 9.6.1988 and 23.6.1988. The sale of the property in favour of the plaintiff was said to have been intimated to the first defendant by a notice dated 24.6.1988. The plaintiff therefore had purchased the suit schedule property for a sum of Rs. 85,000/-. The sale was subject to redemption of mortgage by paying the mortgage amount of Rs. 2,500/- to the first defendant and to recover possession from him. The plaintiff therefore claimed as the bona fide purchaser of the suit schedule property. Since the first defendant had set up a false claim of also being an agreement holder in respect of the suit schedule property, had filed a suit for specific performance in OS 1013/1989, which was also pending before the very court in which the present suit was filed. And it was in that background that the plaintiff claimed that he was entitled to redeem the mortgage and had deposited the entire amount of Rs. 2,500/- and the suit was filed seeking the following reliefs, namely,

(a) that the first defendant should deliver possession of the suit schedule property to the plaintiff with vacant possession together with the mortgaged deed.

(b) that the first defendant should deliver all documents in his custody relating to the mortgaged property

(c) that the first defendant should pay mesne profits to the plaintiff at not less than Rs. 850/- per mensem from the date of suit till the date of delivery of possession of the suit schedule property?

(d) for costs"

The defendant No. 1 had entered appearance and filed written statement to claim that the suit was not maintainable. The period of mortgage had come to an end when the first and second defendants along with the legal heirs had executed an agreement of sale of the suit schedule property for a sale consideration of Rs. 50,000/- on 10.7.1997 and therefore, the relationship of mortgagor and mortgagee had come to an end on such sale deed. And on the same day, the first defendant had paid the sum of Rs. 27,500/- which was acknowledged by the second defendant in the presence of witnesses and the mortgage amount of Rs. 2,500/- had been adjusted towards the consideration and the second defendant had agreed to receive the balance consideration of Rs. 20,000/- and to execute the sale deed in respect of the suit property within one year and in part performance of the contract, had allowed the first defendant to continue in possession of the suit schedule property as a purchaser. The sale deed alleged to be executed by the second defendant along with his heirs in favour of the plaintiff were said to be collusive, concocted and fraudulent and did not bind the first defendant. The plaintiff had knowingly purchased the suit schedule property with ulterior motive to deprive the rights of the defendants and therefore, the transaction was null and void and there was no right in the plaintiff to demand the execution of the deed of redemption or to deliver vacant possession of the property.

It was further asserted that the first defendant had initiated proceedings in OS 1013/1989 against the plaintiff, the second defendant and his children for specific performance of contract. That suit was much earlier to the present suit and therefore, the first defendant under the knowledge of the second defendant, having sold the very same property in favour of Syed Khaleemullah under an agreement dated 8.3.1995 for a consideration of Rs. 75,000/- and on the same day, Khaleemullah having paid Rs. 40,000/- as advance, the first defendant in part performance of the contract, had put the prospective buyer in physical possession of the property. It is on these pleadings that the trial court has framed the following issues:

"1. Whether the plaintiff proves that he has purchased the suit schedule property with right of redemption of mortgage as alleged in the plaint?

Whether the defendant No. 1 proves that the mortgage created by the then owner Smt. Lalithamma is not subsisting?

Whether the first defendant proves that the sale in favour of the plaintiff is nominal, fraudulent, null and void and not binding on the defendant No. 1?

Whether the plaintiff proves that he is entitled to redemption of the mortgage as prayed in the plaint and possession of the suit schedule property?

Whether the plaintiff is entitled to the mesne profits from the date of suit as prayed in the plaint?

Whether the suit is bad for non-joinder of necessary parties?

ADDITIONAL ISSUES:

"1. Whether the first defendant proves that the second defendant has agreed to receive the balance consideration of Rs. 20,000/- and to execute the sale deed in favour of the first defendant?

Whether the first defendant proves that his possession over the plaint schedule property is lawful as against the plaintiff?

Whether the first defendant proves that the plaintiff is the subsequent purchaser with notice and without consideration?"

The court below has decreed the suit.

Incidentally, the first defendant whose suit for specific performance was dismissed for default, had pointed out to the court that the two suits had been clubbed and were being tried together. Since the suit for specific performance was dismissed for default, he had taken steps to have the same restored, and in order that there be complete adjudication of the disputes between the parties in the two suits, he had requested that the further proceedings be kept in abeyance pending restoration of the suit so dismissed. This prayer was rejected by the trial curt and the evidence was treated as closed. In that, the plaintiffs witness was not cross-examined by the first defendant nor did he tender any evidence. The suit having been decreed, the present appeal is filed.

The learned counsel for the appellant would at the first instance point out that the suit ought to have been one for redemption of mortgage. Order XXXIV of the Code of Civil Procedure, 1908 (Hereinafter referred to as the ''CPC'', for brevity), which prescribes a special procedure insofar as a suit for redemption of mortgage is concerned. This has not been complied with by the plaintiff in the first instance and the court has also adjudicated the matter notwithstanding that a special procedure is prescribed insofar as a suit for redemption of mortgage is concerned and has proceeded to decree the same, which is totally in violation of the procedural law. And further, the reliefs prayed for by the plaintiff stops short of reconveyance of the property which is contemplated as the ultimate relief to be granted in a suit for redemption of mortgage. In the absence of any such prayer, there is no conveyance. Even if the suit has been decreed, it results in a nullity and hence the learned Counsel seeks that the judgment and decree be set aside on this and other grounds which are sought to be urged.

At the outset, it is noticed that it is indeed a suit for redemption of mortgage, in which event, the trial court was duty bound to indicate to the plaintiff that the suit was not brought in the proper form and also ought to have proceeded in terms of order XXXIV of the CPC. Therefore, there is a procedural lapse, which could even be said would go to the root of the matter. In that, there is no complete relief granted to the plaintiff, which was essential in order to confer title on the plaintiff, which stands eclipsed by virtue of the mortgage in favour of the first defendant. Unless there is redemption and reconveyance of the property in favour of the plaintiff by means of a registered document, it does not result in the plaintiff recovering title and possession of the property. Therefore, this lacuna would have to be set right and since the court below however has proceeded to adjudicate on the claim of the plaintiff and has arrived at a certain decision, it would not be in the interest of the parties or in the interest of justice to efface the proceedings. It would be appropriate if the plaintiff is permitted to amend the plaint incorporating the prayer that would necessarily have to be sought in a suit for redemption of mortgage.

Hence, the judgment and decree of the trial court is set aside and the matter is remanded to the trial court and the plaintiff shall be permitted to amend the plaint suitably and the defendant No. 1 shall be permitted to file additional written statement and shall be permitted to cross-examine PW.1 and tender evidence if any and the court below shall follow the procedure in adjudicating the matter further in terms of Order XXXIV of the CPC and other provisions. This however shall be on payment of costs of Rs. 25,000/- by defendant No. 1 to the plaintiff before the trial court immediately on remand. The parties shall appear before the court below without any further notice on 29.6.2015 on which date, the defendant No. 1 shall pay the costs. Since the suit was of the year 1989, it is appropriate that the proceedings be expedited and therefore, the court below is requested to address the matter on a day to day basis, depending on its board and dispose of the matter at the earliest, in any event, within a period of three months, if not earlier from the date of remand.

Incidentally, it is the further claim of the appellant that his suit for specific performance which has been revived and in which the trial is on and it is requested that the present suit be tried along with the same. On the say of the defendant himself, when the procedure prescribed in respect of a suit for redemption of mortgage is different from that of a suit for specific performance, the question of clubbing the two matters is not permissible. Secondly, they are independent transactions and shall be treated as such.

There is no warrant for the suits to even be tried side by side as claimed by the defendant.