Tara Singh and others vs Kehar Singh and others

Rajendra Nath Mittal, J.—This is an appeal by the defendants against the judgment and decree of the Additional District Judge, Ludhiana, dated December 6, 1973.

Briefly the facts of the case are that Smt. Bhagwani, widow of Sunder Singh, was the owner of 88 bighas and 14 Biswas of land situated in village Bathan Kalan, District Ludhiana, and she mortgaged it with possession with Chuhar Singh, Mita Singh and Lachhman Singh, for an amount of Rs. 2000/-, on January 1, 1914. The mortgagees sold their mortgagee rights in favour of Waryam Singh son of Anup Singh, vide sale deed dated July 3, 1919, for a consideration of Rs. 2230/-. Waryam Singh died and defendant Nos. 1 to 4 inherited the mortgagee rights as his legal heirs. Some land of Smt. Bhagwani was mortgaged with Ballaura Singh defendant No. 5, in lieu of which Khasra No. 1086 was allotted. Smt. Bhagwani died in the year 1960, without leaving any heirs. Her property was mutated in the name of Punjab State. The mortgaged land and Khasra No. 1086, was allotted to the plaintiffs by the State Government under Nazool Lands Transfer Rules, 1956 (hereinafter referred to, as the Rules), vide order dated May 21, 1968. The plaintiffs, in accordance with the order of the Collector, deposited Rs. 2230/- for payment to defendant Nos. 1 to 4 and Rs. 743/- to defendant No. 5. The Collector, after deposit of the amount, served notice on the mortgagees that the land stood redeemed. He issued warrants of possession in favour of the plaintiffs in pursuance of which the plaintiffs obtained possession of the land on June 7, 1968 and an entry to that effect was made in the Roznamcha of the Patwari. Crops were standing at the time of delivery of possession. Consequently the plaintiffs also deposited an amount of Rs. 607.60 as compensation of the crops. It is alleged that the defendants filed a suit for injunction against the plaintiffs and obtained a temporary injunction against them. During that interval, the defendants, it is further alleged, took possession of the property in dispute from the plaintiffs in the garb of injunction. The plaintiffs filed the present suit for possession of the land.

Defendants Nos. 1 to 4 contested the suit and inter alia pleaded that Smt. Bhagwani had died leaving behind her heirs who were entitled to inherit the property, that the suit was barred by limitation and that the defendants were not bound by allotment made in favour of the plaintiffs. The trial Court held that Smt. Bhagwani did not leave any heir, that the plaintiffs were transferees from the State Government and they were entitled to redeem the property on payment of the mortgage money to defendant Nos. 1 to 5. It was also held that the suit was within limitation. In view of the aforesaid findings, the suit of the plaintiffs was decreed. Defendant Nos. 1 to 4 preferred an appeal against the judgment and decree of the trial Court to the Additional District Judge, Ludhiana, who affirmed the judgment of the trial Court and dismissed the appeal. They have come up in second appeal to this Court.

It is, firstly contended by the learned counsel for the appellants that the Rules were not applicable to the property in dispute and consequently it could not to be transferred to the plaintiffs under them. I have given a thoughtful consideration to the argument of the learned counsel and find force in it. The property in dispute is situated in village Bathan Kalan, which was situated in the erstwhile Patiala and East Punjab States Union (Pepsu). In 1950 the village, alongwith certain other villages, was transferred to the State of Punjab under the Provinces and the States (Absorption of Enclaves) Order, 1950. The Third Schedule relates to enclaves transferred from an acceding State to a Province. Clause 11 contains enclaves which were transferred from Pepsu to the East Punjab. The village is shown in item No. 2 of Clause 11 (see 1950 Current Indian Statutes, Part 11, page 31 at page 38). The rules were framed in 1956 by the Government of Pepsu. The property in dispute before coming into force of the Rules in Pepsu had been transferred to Punjab. Mr. Sarin has not been able to show any notification by which the Rules were made applicable to the State of Punjab. For the reasons recorded above,. I am of the opinion that the Rules did not apply to the property in dispute.

It is next contended by the learned counsel that in case the Rules are not applicable to the property, the plaintiffs would not become its owners under the Rules. According to the counsel, it could be transferred by the State Government by a duly registered sale deed and not by the Collector. He referred to the transfer deed under the Rules, Exhibit P. 28, and: argued that no tittle in the property could be passed to the plaintiffs by it. According to the learned counsel, no interest in the property passed in favour of the plaintiffs by virtue of the aforesaid document. On the other hand, Mr. Sarin, learned counsel for the plaintiffs has argued that even if it may be assumed that the Rules did not apply and the property was not transferred through a registered document, a charge of the amount paid by them as consideration was created on the property According to the counsel, even a charge holder had a right to redeem the property.

I have considered the respective arguments of the learned counsel and agree with the contention of the learned counsel for the plaintiffs. It cannot be disputed that the plaintiffs have paid the price fixed by the State. If it is so, they are entitled to a sale deed in their favour. Unless a sale deed is executed, a charge is created on the property for the amount of the purchase money. Section 55 (6) (b) of the Transfer of Property Act (hereinafter referred to as the Act) relates to the right of the buyers in the properties to be purchased by them. Clause (b) says that the buyer is entitled to charge on the property as against a seller and all persons claiming under him to the extent of the sellers interest in the property for the amount of any purchase money properly paid by the buyer in anticipation of the delivery. Though Section 55 is not applicable to the State of Punjab, yet it has been held time and again, that the principles incorporated in the Act, by and large, are applicable to the State of Punjab. After taking into consideration the aforesaid section, I am of the opinion that a charge has been created in favour of the plaintiffs. Section 91 of the Act deals with the parsons who have a right to file suit for redemption. Clause (a) of this section provides that besides the mortgagor, any person who has a charge upon the property mortgaged, can redeem or institute a suit for redemption of the mortgaged property. From the aforesaid section it is evident that a charge holder can file a suit for redemption of the mortgaged property. In this view I find support from Raj Narain Panday v. Sant Prasad Tewari 1972 S.C.N. 426 and Gaviya and another v. Lingiah AIR 1957 Mys 65. In Raj Narain Panday''s case, it was held that occupancy tenants of land were entitled to redeem it from the mortgagees. A Division Bench of the Mysore High Court in Gaviya''s case observed that u/s 91(a) of the Transfer of Property Act, any person who has any interest in or charge upon the property mortgaged, may redeem the mortgaged property. For the aforesaid reasons, I am of the opinion that the plaintiffs had charge over the property and they had become entitled to redeem it.

It is then faintly argued by Mr. Achhra Singh that Smt. Bhagwani left heirs and consequently the land did not vest in the State. The learned Courts below, after taking into consideration, the evidence on the record, came to the conclusion that there was no surviving heir of Smt. Bhagwani to inherit the property. It will be relevant to mention that co-sharers in the Patti in which the property is situated, filed suit that they were entitled to inherit the property under custom as heirs of Smt. Bhagwani. The matter was ultimately decided by the High Court vide its judgment dated February 3, 1953, Exhibit P. 18, wherein it was held that they were not entitled to inherit the property. In the aforesaid circumstances I reject the contention of the learned counsel.

For the reasons recorded above, the appeal fails and the same is dismissed with costs. Counsel fee Rs. 150/-.