Tundal (Deceased) vs Munshi and Others

N.K. Kapoor, J.—This judgment shall dispose of Regular Second appeal Nos. 724, 725, of 1985 and 1740 of 1990 and 307 of 1991 as common questions of law and fact are involved in these appeals.

Facts are being taken from Regular Second Appeal No. 724 of 1985. This is defendants regular second appeal against the judgment and decree of the Additional District Judge whereby the appeal filed by them against the judgment and decree of the trial court was dismissed.

Briefly put, plaintiffs filed a suit for possession by way of redemption on payment of Rs. 825/- as mortgage amount against defendant No. 1 on the ground that Smt. Mohori widow of Dan Sahai was owner in possession of agricultural land as detailed in para 1 of the plaint. It was further stated in the plaint that during the consolidation proceedings, the land measuring 45 Kanals 8 marlas described in para No. 2 of the plaint was allotted to her in lieu of old Khasra Nos. The aforesaid land was mortgaged by her with possession with defendant No. 1 vide registered mortgage deed dated 25.9.1951 for ostensible consideration of Rs. 2200/- which amount was reduced to Rs. 825/- in view of the civil court decree. Mutation was sanctioned on the basis of civil court decree on 2.4.1957. Smt. Mohori died in or about the year 1967. Mutation of inheritance was sanctioned in favour of persons mentioned in pedigree table as given in para No. 5 of the plaint. Hukam Singh plaintiff No. 6 and Dal Chand Plaintiff No. 7 acquired rights in the suit land on the basis of decree of civil court dated 30.3.1974 with regard to the share of Khillu, Rumali widow, Ramwati daughter and Pitamber son of Giasi. It has been further mentioned in the plaint that plaintiffs No. 6 and 7, namely, Hukam Singh and Dal Chand filed a suit for redemption (suit No. 564 of 1974) which was dismissed on 13.12.1976. Since defendant No. 1 was reluctant to release the suit land after the receipt of the amount of mortgage, so the present suit was brought impleading defendants No. 2 to 9 as proforma defendants.

Defendant No. 1 contested the suit. Defendants No. 3 to 5 and 7 to 9 have filed written statement admitting the claim of the plaintiffs and made further prayer that they are also entitled to get the suit land of their share redeemed. In the written statement filed by defendant No. 1 it was stated that the mortgage amount was Rs. 2200/-. Defendant No. 1 denied that the plaintiff or defendants No. 2 to 9 are not legal hairs of Smt. Mohori or that plaintiffs 6 and 7 are not lawful heirs of successors of Smt. Mohori. In addition thereto, it was urged by the defendant that the plaintiffs petition u/s 4 of the redemption of mortgages Act was dismissed and so the right of redemption of the plaintiffs is extinguished and this way the suit of the plaintiffs is liable to be dismissed. By way of preliminary objection, it was stated that the suit was time barred and also not maintainable as the order of dismissal of the petition by the Collector is final and conclusive. In the alternative, it was pleaded that if the suit is decreed the defendant is entitled to receive back the actual mortgage money of Rs. 2200/-.

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

1/ Whether Smt. Mohori mortgaged the land in dispute with possession with defendant No. 1 vide registered mortgage deed dt. 18. 09.51, if so, its effect ? OPP.

2/ Whether the plaintiffs and defendants 2 to 9 inherited the land in dispute from Smt. Mohori ? OPP.

3/ Whether the suit is barred by limitation ? OPD.

4/ Whether the suit is bad for partial redemption ? OPD.

5/ Whether the suit is barred by principal of constructive res judicata ? OPD.

6/ Whether the suit is bad for misjoinder of parties ? OPD.

7/ Whether the plaintiffs are estopped by their act and conduct and admissions from filing the suit ? OPD.

8/ Whether the plaintiffs have got no cause of action ? OPD.

9/ Whether the suit is bad for impleading defendant No. 6 who has died much prior to the institution of the suit ? OPD.

10/Relief.

The trial Court decreed the suit of the plaintiffs for redemption of suit land subject to their payment of Rs. 825/- to defendant No. 1 on or before 28.7.1983. Issue No. 2 was decided in favour of the plaintiffs to the extent that plaintiffs No. 1 to 5 and defendants No. 2 to 9 inherited the suit land after the death of Smt. Mohori. Issues No. 3, 4 and 5 were decided against the defendants. Issues No. 6 to 9 were also decided against the defendants as having not been pressed.

Before the lower appellate Court, the appellant did not raise any controversy regarding the finding of the trial Court in respect of issue No. 1 and 2. Finding in respect of issue No. 3 was hotly contested by the appellant. It was urged by the appellant that finding under issue no. 3 is liable to be reversed on the ground that the order of Collector dated 30.7.1974 whereby the plaintiffs petition for redemption of the suit land was decided on merit and so the present suit could only be filed within one year of such a decision. Since the order has not been challenged within the period prescribed, the same has attained finality. The lower appellate Court examined this aspect in all details. On carefully perusing the order of the Collector dated 30.7.1974, it came to the conclusion that the same has not been decided on merits which thus does not bind the plaintiffs who legitimately can ignore the same. Resultantly, the appeal was dismissed.

At the motion hearing, it was contended by the learned counsel for the appellant that the Assistant Collector had decided the matter on merits after considering the entire evidence on record and even if he declined to order redemption erroneously, it was open to the applicants to seek redemption within a year and the suit has been filed beyond one year which is time barred. By way of interim injunction, dispossession of the appellant was also stayed. The appeal was admitted. However, the interim stay granted on 27.3.1985 was vacated.

Learned counsel for the appellant has confined his submission with regard to the finding of the Courts below in respect of issue No. 3 - Whether the suit is barred by limitation? The controversy between the parties revolve around the order of Collector dated 30.7.1974 - Whether the order of Collector is on merit or not? According to the learned counsel for the appellant, a proper petition was filed by the plaintiffs in terms of Section 4 of the Punjab Redemption of Mortgages Act in the Court of Collector. Pursuance to notice issued by the authority, respondents put in appearance, filed written statement controverting the various averments made in the petition. Oral as well as documentary evidence was led by the parties. Thus after carefully evaluating the evidence led by the parties, the collector came to the conclusion that petition for redemption in the present form cannot succeed and so dismissed the same. This being a decision on merit binds the parties unless challenged within a period of one year as per Article 100 of the Limitation Act. Since admittedly the present suit was filed after the expiry of one year from 30.7.1974, the courts below erred in law in not dismissing the suit of the plaintiffs. Support was sought from the decision of this Court in case reported as Chogi Singh and Ors. v. Ram Singh and Anr. 1984 CLJ 523 (C&Cr) and Kishan Singh v. Mithu Singh (1984) 86 P.L.R. 581.

Learned counsel for the respondents, however, urged that the well reasoned order of the Additional District Judge does not call for any interference as the same does not suffer from any illegality. The lower appellate Court on careful perusal of the order of the Collector has come to the conclusion that the Collector has not decided the petition on merits. Thus, in view of this finding of the Courts below the decisions cited by the learned counsel for the appellant have no applicability.

I have considered the submissions made by the learned counsel for the parties and have also perused the judgment of the Additional District Judge dealing specifically with the decision under issue No. 3 as well as the impugned order of the Collector dated 30.7.1974, Exhibit D-8. There is no dispute between the parties that Sh. Khillu and others filed a petition u/s 4 of the Punjab Redemption of Mortgages Act (for short ''the Act'') in the Court of Assistant Collector 1st grade exercising the powers of the Collector wherein notice was issued to the respondents. There is also no dispute between the parties that the parties adduced evidence in support of their respective contentions. The precise dispute between the parties is whether the Collector vide order dated 30.7.1974 adjudicated/decided the controversy raised therein. The collector in his order has noticed the various contentions raised by the respective parties i.e. with regard to individual shares of the plaintiffs, rights, if any, of plaintiffs No. 5 and 6 and what is the effect of non impleading of some of the persons who have right in the property and whether the mortgage amount is Rs. 2200/- as stated by the respondents or Rs. 825/- as stated by the plaintiffs. After noticing the various objections/pleas the Collector came to the conclusion that since sufficient evidence has not been adduced, the same cannot be adjudicated. Accordingly, the Assistant Collector came to the conclusion that the petition in the present form cannot succeed and so dismissed. The lower appellate court has come to the conclusion that such a decision is not on merits and so the suit of the plaintiffs is within limitation. Petition for redemption of the land mortgaged was filed u/s 4 of the Act. In the petition, the petitioner has to state the particulars of the land mortgaged; mortgage amount and that the same has been deposited with the Collector. u/s 5 as and when the petition has been duly presented and the deposit has been made, the collector is to issue to the mortgages summons to appear on a date to be specified therein. u/s 8, the Collector is to inquire from the mortgages whether he admits that the petitioner is entitled to redeem and whether he is willing to accept the sum in deposit in full discharge of the mortgage whether he is willing to surrender possession of the mortgaged property. If the mortgages replies in affirmative, the Collector is to pass an order as laid down in Section 6(a)(b), (c) and (d) or the Act. In case the mortgage admits the petitioner''s title to redeem but demands payment of a sum larger than that in deposit, the Collector is to inquire from the petitioner whether he is willing to pay such larger sum and in case he answers in affirmative, the Collector shall fix a period not exceeding 30 days within which the petitioner is to deposit the difference and in case the petitioner makes such a difference the Collector is to make order as laid down in Section 6(a), (b), (c) and (d) of the Act. In case the petitioner fails to make such deposit within the time fixed, the Collector is to dismiss the petition. u/s 9 of the Act, in case the mortgagee raises objection on any ground other than the amount of deposit or if the petitioner is not willing to pay the sum demanded by the mortgagee, the Collector can either dismiss the petition or make a summary inquiry regarding the objection raised by the mortgagee or regarding the sum due. Thus, Section 9 of the Act contemplates an inquiry by the Collector with regard to the objection raised by the mortgagee. In case on inquiry the collector is of the opinion that it bars redemption or is a sufficient cause for not proceeding further with the petition, he shall dismiss the petition. According to the appellant, this decision of the Collector is in terms of Section 10 of the Act and thus it was incumbent upon the appellant to bring the suit within a year from 30.7.1974. According to the respondents, the Collector has not applied his mind to the objections raised by the mortgagee and so such a decision cannot be construed to be as on merit.

On carefully pursuing the order of Collector dated 30.7.1974, I am of the view that the same is not on merit. The Collector has merely noticed the respective contention/objections raised by the parties but has not cared to express his opinion in respect of these. In fact, till the concluding paragraph of the order, he has merely noticed the various objections and in concluding paragraph he has observed that the present petition for redemption is not maintainable in the present from and is dismissed. Such a decision cannot be construed to be on merit.

The decision in Chagi Singh''s case (supra) has no applicability to the facts of the present case. Therein the Court after perusing the order of the Collector came to the conclusion that the same has been passed u/s 10 of the Act and so it was incumbent upon the aggrieved party to institute a suit within the period prescribed. Similarly, in Kishan Singh''s Case (Supra), the Court came to the conclusion that the order was passed by the Collector on merit and so it was incumbent upon a person aggrieved to file a suit for setting aside the same within one year of its passing. As the suit was filed beyond period of limitation, the same was barred. In fact, the facts of the present case are akin to the one noticed in case reported as Amar Singh v. Mehar Singh and Anr. 1981 P.L.J. 20. In that case also, the Collector dismissed the application for redemption on the ground of failure to establish ownership. It was held that such a decision cannot be said to be on merits.

The scheme of the Act as briefly noticed in the earlier paragraph envisages an inquiry by the collector and thereafter decide the objections raised by the contending parties i. e. it envisages applicability of mind to the controversy raised. In the present case, mortgagees had raised objection with regard to the non maintainability of the petition as necessary parties had not been impleaded as well as with regard to the mortgage amount. Both these objections have been noticed by the Collector but not dilated any further. The Collector under the Act is performing judicial function. He is to adjudicate the petition filed before him. Term ''adjudicate'' as per Chambers English Dictionary is (i) to determine judicially (ii) to pronounce; to award. The term ''decide'' as per Chambers English Dictionary is to determine; to end; to settle; to resolve; to make up one''s mind. The cryptic order passed by the Collector cannot be termed to be an adjudication. Thus, I find no reason to differ with the well reasoned order of the Additional District Judge holding that the decision Exhibit Dx dated 30.7.1974 is not on merit. Accordingly, I find no merit in these appeals and consequently dismiss the same.

It has been stated by the learned counsel for the appellant that the appellant has almost purchased 90% of the land subject matter of four appeals during the pendency by means of sale deeds/civil court decree. Notice of this application was given to the respondents who, however, did not care to file any reply thereby impliedly admitting the same. This being the position, while dismissing the appeals on merit it is clarified that it will have no bearing upon the validity of the Sale deeds/Civil court decree referred in detail in Civil Miscellaneous No. 907-C of 1993.