Thaman Singh (died) Rep. by Lrs. - Appeallant vs Dial Singh

J.V. Gupta, J.

This is defendant''s second appeal against whom suit for declaration and possession by way of redemption as a consequential relief has been decreed by both the Courts below.

The facts of the case giving rise to this appeal are that the suit was filed by the plaintiffrespondents for a declaration to the effect that they were entitled to the redemption of the land mortgaged and that order dated 1.12.1971 of the Assistant Collector 1st Grade was illegal, void and not binding upon them and also for possession on the ground that Bishana son of Jhaba was mortgagor of the land in dispute . Gurdev Singh, Jagat and Mohinder Singh sons of Thaman Singh got a Will dated 29.9.1962 executed by Bishana mortgagor in their favour. The plaintiffs filed a suit earlier for possession of the suit land against them and also against Thaman Singh. The plaintiffs got a declaration that the Will dated 26.9.1962 executed by Bishana was illegal, void and ineffective against reversionary rights. The suit was decreed for possession of the land subject to mortgagee rights of the defendant, Thaman Singh. In pursuance of the said decree dated 30.1.1965, the plaintiffs filed an application dated 3.11.1971 under section 4 of the Redemption of Mortgages (Punjab) Act, 1913 (shortly the Act) for redemption of the land in the Court of the Assistant Collector. The said application was contested on behalf of the defendant and ultimately it was dismissed on 1.12.1971 on the sole ground that the right of redemption was barred under the law of limitation at the time of filing of the application. The present suit was thus filed on 24.1.1972, i.e. within one year from the order of the Assistant Collector dated 1.12.1971, alleging that the said order was illegal, void and inoperative and not binding upon the plaintiffs, on the ground that the application filed by them for redemption of the land in dispute was well within limitation. It was also asserted that during the earlier civil litigation between the parties, the defendant never raised any objection that the land under mortgage with him was not liable to be redeemed. Therefore, the defendant was alleged to be estopped from raising the plea that the said land was not liable to be redeemed. It was also pleaded that the plaintiffs were entitled to deduct the period during which they were restrained by the lower Appellate Court, as well as by the High Court from getting possession of the suit land by passing the said orders to that effect. As a consequential relief, the possession of the suit land was sought by way of redemption. The defendant, Thaman Singh contested the suit inter alea on the ground that it was barred by time and that even the application for redemption which was dismissed by the Assistant Collector was filed after the period of limitation. It was also pleaded that the mortgage amount was more than Rs 900/ . It was also contended that the period spent in litigation could not be excluded since that litigation was not for redemption of the suit land. On the pleadings of the parties, the trial Court framed the following issues :

(1) Whether the order dated 12.1.71 passed by the Assistant Collector 1st Grade, Ludhiana is illegal, void and inoperative ? O.P.D.

(2) Whether the suit is properly valued for the purposes of Courtfee and jurisdiction ? If so, what is the correct valuation ? O.P.D.

(3) Whether the suit is within time ?

(4) Whether the plaintiffs are entitled to the relief of possession in this suit ? O.P.D.

(5) Relief.

Under issue No. 1 the trial Court found that the order of the Assistant Collector dated 1.12.1971 was inoperative and illegal as the application was wrongly dismissed as barred by limitation. Under issue No. 2 the trial Court found that the plaintiffs had not correctly valued the suit for purposes of Courtfee and jurisdiction. As regards the mortgage amount, the land in dispute is mortgaged for an amount of Rs 900/ vide mortgage deed, copy of which is Ex P.1. Additional mortgage deed was also executed vide Ex D.1 dated 7.1.1924. Thus, the total mortgage amount for which the land is under mortgage with the defendant comes to Rs. 1,180/. Therefore, the plaintiffs were directed to make up deficiency in Courtfee which was duly made. Under issue No. 3, the suit was held to be within limitation as it was filed within one year of the order of the Assistant Collector under Article 100 of the Limitation Act, 1963. Under issue No.4 the trial Court found that there was no reason as to why the relief of possession could not be granted to the plaintiffs in this suit. Consequently, a preliminary decree was passed in favour of the plaintiffs and against the defendant. The plaintiffs were to deposit the whole mortgage amount which was declared to be Rs. 1,180/ within 4 months from the date of decree. Dissatisfied with the same, the defendant filed an appeal in the Court of the Additional District Judge, Ludhiana who affirmed the said findings of the trial Court and thus, maintained the decree passed in favour of the plaintiffs. Still dissatisfied with the same, the defendantmortgagee has filed this second appeal in this Court.

The learned counsel for the appellant contended that the present suit for redemption was barred by time, because the limitation to file the suit was upto January 1, 1971 from the date of the original mortgage dated 6.3.1911 whereas the present suit was filed on 24.1.1972. In support of this contention, reference was made to Shiv Lal and others v. Chetram and other, AIR 1971 S.C. 2342 and, Padmawati v. Hans Raj, 1975 PLJ 83.

It was next contended that in any case if the suit for declaration was within time, then no relief could be granted for redemption in the present suit. According to the learned counsel, after getting the necessary declaration that the order of the Assistant Collector dated 1.12.1971 was wrong and illegal, the plaintiff should approach the Assistant Collector again for getting the property redeemed. To support this contention, reference was made to Kaura and another v. Ram Chand and another, AIR 1925 Lahore 385; Sikandar Khan and others v. Baland Khan and others, AIR 1927 Lahore 435; Shiv Ram and others v. Atma Ram and others, AIR 1928 Lahore 571; Fakir Khan and others v. Ismail Khan and other, AIR 1933 Lahore 179 and Tek Chand etc. v. Ram Sarup etc., 1970 PLJ 274.

The last contention raised on behalf of the appellant is that in any case, there was second mortgage on the suit land vide document Ex.D.1 dated 7.1.1924 and since the plaintiffs never claimed redemption of the second mortgage either before the Assistant Collector or the present suit, the suit was liable to be dismissed as barred by time on that ground alone.

On the other hand, the learned counsel for the plaintiffrespondents contended that the suit was within time from the order of the Assistant Collector as it was filed within one year thereof. Since the application for redemption before the Assistant Collector was admittedly filed within time, therefore, the plaintiffs claimed the relief of possession by way of redemption which was by way of consequential relief. The suit, according to the learned counsel, was for all intents and purposes, the suit for declaration under section 12 of the Act. It was also contended that once the declaration is given that order of the Collector was wrong and illegal, the Court had the jurisdiction to grant consequential relief as contemplated under Order 7 Rule 7 of the Code of Civil Procedure and there was no statutory bar for granting such a relief. Rather it was in the interest of justice and to avoid multiplicity of proceedings that such relief should have been granted in the present suit. As regards the second mortgage, alleged to have been created vide Ex D.1 dated 6.1.1924 for Rs. 280/, the learned counsel submitted that it was an additional charge which was to be paid at the time of redemption of the first mortgage. Since in the revenue record, the mortgage money was shown to be Rs. 900/ throughout, the plaintiffs claimed redemption on payment of that amount, but in any case the amount to be paid by the plaintiffs was to be determined either by the Collector or by the Court in this suit which has now been determined to be Rs 1,180/ and on which necessary Courtfee has also been paid by the plaintiffs.

I have heard the learned counsel for the parties and have also gone through the case law cited at the bar. As regards the first contention that the suit for redemption was barred, it has no merit. It is not disputed that the suit is within time from the date of order of the Collector dated 1.12.1971, as it was filed within one year thereof. It is also not disputed that the application for redemption under section 4 of the Act was filed within limitation before the Assistant Collector. Thus, the present suit cannot be termed to be a suit for redemption simpliciter. As observed earlier, it is a suit for declaration under section 12 of the Act and as a consequence thereof, for possession of the land by way of redemption. The authorities relied upon by the learned counsel for the appellant are clearly distinguishable and have no applicability to the facts of the present case. In Shiv Lal and others'' case (supra), it has been clearly stated in paragraph 11 thereof, that even if the period taken in prosecuting the said application before the Collector is excluded in computing the period of limitation, the suit for redemption is admittedly barred. However it was urged before the Supreme Court that since the suit under section 12 of the Act was filed within one year of the order of the Collector it enlarged the period of limitation for redemption suit as well. This contention was repelled by the Supreme Court with the following observations :

"Those decisions do not support the contention of the plaintiffs that a mortgagor whose application for redemption under Section 4 of the aforesaid Act is dismissed can file a suit for redemption of the mortgage even though the limitation prescribed for such a suit had expired, if only he files that suit within a period of one year from the date of the order dismissing his petition under Section 4. No decision taking that view was brought to our notice. What is made conclusive by Section 12 is that the order made by the Collector if the suit as contemplated by Section 12 is not instituted within the prescribed time. That provision does not lend any support for the contention that if any application which fulfills the requirement of Section 4 is brought then the period of limitation prescribed for a redemption suit becomes irrelevant."

As regards the facts of the present case, it is not disputed that if the period taken in prosecuting the said application before the Assistant Collector is excluded, then the present suit, even if for redemption, filed on 24.1.1972 is within limitation.

Similarly, in Padmawati''s case (supra), the learned judge relied upon the said Supreme Court judgment and observed in paragraph 3 thereof :

"Even if the suit was filed within one year of the order that was passed under Section 12 of the Act, still it had to be found out after permitting the parties to lead evidence, if the mortgage of which redemption is sought was created within 60 years of the date of the filing of the suit. The proceedings which were taken under Section 12 of the Act, would not enlarge the period of limitation. It had independently to be found out if on the date when the application under Section 12 of the Act was filed, the mortgage was still subsisting or not. It was also to be found out if on the date the suit was filed, whether the right to redeem could be exercised and was not barred by limitation."

There cannot be any dispute with this proposition. In this case also, it was to be found out if on the date when the application under Section 4 of the Act was filed, the mortgage was still subsisting, or not. It is true that if the mortgage did not subsist at the time of the application filed before the Collector under Section 4 of the Act, then mere filing of the suit under Section 12 of the Act within one year of the order of the Collector will not extend the period of limitation for redemption. Thus, both the cited cases are clearly distinguishable from the facts of the present case, As stated earlier, admittedly here the application before the Collector was filed on 3.11.1970, whereas the limitation was upto 1.1.1971 and was thus very much within limitation. It is also not disputed that if the period taken before the Collector is excluded, then the present suit filed on 24.1.1972 is also within limitation for redeeming the suit land.

As regards the second contention that in the present suit no relief for possession by way of redemption could be granted, I do not find any force in this contention. No judgment has been cited where in a suit for declaration under Section 12, such a relief could not be granted. In the judgment relied upon i.e. Fakir Khan and others''case (supra), it was held that a suit under section 12 is really one to get rid of the order passed by the Collector allowing, or refusing to allow, redemption, and is not in form or in substance a suit for redemption. The cause of action for such a suit is not the original contract but the order of the Collector which aggrieves the party suing, and therefore, Order 34, Civil Procedure Code, has no application to such a suit. There is no dispute to this proposition. Admittedly, it is a suit under Section 12 of the Act and the cause of action, as given in the plaint, is the date of the order of the Collector 1.12.1971. The relief of possession by way of redemption is being sought by way of consequential relief which was not the case in the judgment cited above.

As regards the third contention, that there was a second mortgage, vide document Ex.D.1 dated 6.1.1924, for a sum of Rs 280/, suffice it to say that no such specific plea was taken in the written statement, nor was there any issue claimed in the trial Court. In evidence document Ex.D.1 was produced. It is clearly stated therein that this additional mortgage money will be paid alongwith original mortgage amount of Rs. 900/. Since in the revenue record, the mortgage money was shown to be Rs. 900/, the plaintiff claimed redemption on payment of that amount, otherwise, whatever the amount may be found due on account of mortgage of the suit land, the plaintiff could redeem the same on payment of that amount. Therefore, it could not be successfully argued that since the plaintiffs did not claim redemption of the second mortgage therefore suit is barred by time computing the period from the second mortgage. As observed earlier, this plea was never taken by the defendant at any stage either before the Collector or in the present suit. Moreover, it could not be termed to be a separate independent mortgage as such. It was additional amount which was raised on the suit land which was already mortgaged and that additional amount was to be paid alongwith the original amount of Rs. 900/.

No other point arises, nor has any been argued. Consequently the appeal fails and is dismissed with costs.