Thandi Ram and other vs Banarsi Dass and others

Surinder Singh, J.—Shorn of details, the undisputed facts may be briefly noticed. On June 27, 1896, Sada Ram original owner of the property, which is 65 kanals of agricultural land, mortgaged the same in favour of Niranjan Dass for a partly amount of Rs. 85/-. After the death of Sada Ram, the ownership rights in the land developed upon Banarsi Dass and Ram Sarup, Respondents (half share) and Shambhu etc., Respondents (half share). The latter set of Respondents sold their rights to Banarsi Dass and Ram Sarup, Respondents. Another transaction of a part of this land is also involved. In any case, there is no dispute that the Plaintiff-Respondents are the mortgagors for all intents and purposes. Similarly, there is also no controversy that the Defendants-Appellants are the mortgagees of the land in suit. The suit in the present case was filed by the mortgagors for redeeming possession of the mortgaged property and with a view to save limitation it wars alleged that the original mortgagee Niranjan Dass had filed a suit on March 13, 1909 in the Court of Munsif, Hissar in respect of the same mortgage dated June 27(sic), 1896 and in that suit, he had acknowledged the existence of this mortgage, which fact gave a fresh lease of life to the limitation for redemption of the mortgage.

The suit was resisted by three Defendant who pleaded lack of knowledge in regard to the mortgage in question and also raised an objection about the action being barred by limitation. It was further asserted that the mortgagors had filed an application under the provi -sions of the Punjab Restitution of Mortgaged Lands Act, 1938 (Punjab Act No. IV of l958(sic)) (hereinafter referred to as the Act) and no relief having been granted to them in those proceedings, the present suit in the civil court was not competent. The trial court framed various issues to cover the contentious matters but it is needless to recapitulate all these issues as only two of them have been mooted in the present appeal. The decision of the Courts below in regard to the remaining issues has not been challenged by the Learned Counsel for the parties. The contested issues are Nos. 2 and 6 reproduced below:

Issues

* * *

Whether the suit is within time ? O P. D

* * * *

What is the effect of the dismissal of the application filed by the Plaintiffs under the Punjab Restitution of Mortgaged Lands Act, 1938?

Regarding issue No. 2, Shri G. C. Garg, Learned Counsel for the Appellants, has contended that the mortgage having been effected on June 27, 1896, the present suit which was filed beyond the period of 60 years, is apparently barred. As regards the earlier suit filed in the year 1909, the argument is that no liability had been acknowledged by the Appellants in that suit, on the basis of which the limitation could have been extended. The argument is, however, not tenable. A perusal of the copy of the plaint in that suit would indicate that all the particulars of the original mortgage dated June 27, 1896 have been mentioned therein including the mortgage amount of Rs. 85/- and the other terms and conditions of the mortgage. This is nothing else but an acknowledgment of the liability which would certainly provide a sufficient ground to the mortgagor for extension of the period of limitation prescribed for redemption of mortgages. Both the courts have come to a concurrent finding to this effect and this finding calls for no modification in second appeal

It is, in fact, the second point which pertains to issue No, 6, which is more seriously agitated. It is pointed out that an application was filed by Banarsi Dass and Ram Sarup Respondents (mortgagors) before the Collector under the Act in which the order was passed by the Collector on May 26, 1960 (copy Exhibit D 4) to the effect that the application was barred by limitation and was thus rejected. The argument is that in view of the dismissal of this application, a civil suit was not competent on account of the bar envisaged in Section 12 of the Act In order to appreciate this argument, the relevant provisions of Punjab Act IV of 1938 may be recapitulated as follows:

Notwithstanding anything contained in any enactment for the time being in force, this Act shall apply to any subsisting mortgages of land, which were effected prior to 8th June, 1901.

* * * *

A mortgagor to whose land the provisions of this Act apply may at any time present a petition to the Collector praying for restitution of possession of the land mortgaged. The petition shall be duly verified in the manner prescribed for such petitions.

On receipt of such petition, the Collector, after such enquiries as may be prescribed, shall record an order in writing with reasons stating whether the mortgage in question is one to which this Act applies.

If the Collector finds that the mortgage is one to which this Act does not apply, he shall dismiss the petition.

(1) If the Collector finds that the mortgage is one to which this Act applies he shall, notwithstanding anything contained in any other enactment for the time being in force in cases where he finds that the value of the benefits enjoyed by the mortgagee, while in possession, equal or exceed twice the amount of the principal sum originally advanced under the mortgage, order in writing-

(a) that the mortgage be extinguished, and

(b) where the mortgrgee is still in possession, that the morta-gagor be put into possession of the mortgaged land as against the mortgagee and that the title deeds, if any, be resorted to the mortgagor.

Before going through the provisions reproduced above, it may be observed that the Act confers a privilege on certain class of debtors and also enatils the ordinary rights of the orditors to enforce payment of the debts covered by mortgages which came into existence before the prescribed date. Such an Act has, therefore, to be strictly construed and cannot be made applicable to matters, which are not specifically covered under the provisions of the Act. There is no dispute that the mortgage in the present case was effected before the crucial date and as such the mortgagor could have sought relief under the Act, The procedure in this behalf has been laid down in Sections 4 to 6(sic) (supra). The application for restitution of possession of the mortgaged land is to be made before the Collector u/s 4 of the Act. On receipt of the application, the Collector is called upon to pass an order u/s 5 of the Act, after such enquiries as may be prescribed, stating whether the mortgage in question is one to which this Act applies. It is prescribed u/s 6 of the Act that if the Collector finds that the mortgage is one to which the Act does not apply, he must dismiss the application. If on the other hand, the Collector holds that the Act is applicable to the mortgage in question, it is incumbent upon the Collector u/s 7(1) of the Act to assess the value of the benefits enjoyed by the mortgagee while in possession and to see if the same equals or exceed twice the amount of the principal sum originally advanced under the mortgage. In such a case, the Collector is called upon to pass an order in writing that the mortgage be extinguished and if the mortgagee is still in possession, the mortgagor be put into possession of land as also the title deeds pertaining thereto. A perusal of the order passed by the Collector in the present case on 26th May, 1960 (copy Exhibit D 4 ) would indicate that this order cannot be termed as an order passed under the Act, the reason being that none of the formatitngs(sic) prescribed by the Act hereinbefore noticed, were complied with. There is neither any finding that the mortgage is one to which this Act does not apply nor it has been held to the contrary. No assessment has been made regarding the value of the benefits enjoyed by the mortgagee while in possession nor an order was made that the motgage be extinguished. An order of this nature could not, therefore oust the jurisdiction of a Civil Court on account of the bar placed u/s 12 of the Act. Under this section, a civil court is deprived of jurisdiction to entertain any claim to enforce a right under a mortgage which has been declared extinguished under the Act As already noticed, no such declaration was made by the Collector. The order of the Collector cannot be treated even as "proceedings under the Act" on account of the reasons already noticed. The findings of both the Courts below on issue No. 6, which are in pari materia with the conclusions drawn above, are therefore, affirmed.

The result is that the appeal fails and is consequently dismissed with no order as to costs.