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Gujarat High Court
Judgename :R.S.GARG
RAYSING HURJI BHIL - Appellant
Versus
VANIBEN MANJIBHAI - Respondent
SECOND APPEAL 82 Of 1989
Decided On : 11/06/2006
Whether in the facts of the case the defendants have not acquired any rights, therefore, suit is liable to be decreed.
Head Note :
Transfer of Property Act, 1882 (Central Act 4 of 1882) - Sections 60, 53-A and 54 - Limitation Act, 1963 (Central Act 36 of 1963) - Article 65 - Registration Act, 1908 (Central Act 16 of 1908) - Sections 17 and 49 - Civil Procedure Code, 1908 (Central Act 5 of 1908) - Section 100 - Second appeal - Redemption of mortagage - Suit for - Dismissal on ground of limitation - Finding of - Validity - On basis of admission of parties the oral mortgage is proved but the legal mortgage would come into existence only on completion of twelve years from the date of oral mortgage - So far as sale in favour of defendant is concerned it cannot be accepted in absence of legal registered sale-deed - The defendants have also not proved that on what particular date they asserted their hostile title, a title contrary to the interest of the plaintiff and that the assertion was public - Burden to prove adverse possession by necessary evidence was on defendants but they have not led any evidence to that effect - They have not even appeared in witness box in support of their contentions to prove perfection of their title by adverse possession - In the present case plaintiffs were not required to discharge the burden of proof that the suit was within limitation - When the defendants were saying that the suit is barred by limitation then they were required to prove that either from the date of dispossession or suit based on title, because of defendants adverse possession suit was barred by limitation - Suit of the plaintiff was, therefore, liable to be decreed - The judgment and decree passed by two Court below dismissing plaintiff suit are set aside.
Held :
When the parties knew that what is the case of each other and the issues were plain and simple, then, it was for the defendants to prove that there was some starting point of limitation for adverse possession and that the plaintiffs suit was barred by limitation. Issue No. 8 framed by the trial Court reads that: whether the suit is time barred. If this is the issue, then, from the very frame of the issue, it would appear that the burden is upon the defendants. One could hold that the burden would be on the plaintiffs if the issue was whether the suit is within limitation. In the present case, the plaintiffs were not required to discharge the burden of proof that their suit within limitation; when the defendants were saying that the suit is barred by limitation, then, they were required to prove that either under Article 64 from the date of dispossession in a suit based on earlier possession or under Article 65 in a suit based on title, because of the defendants adverse possession, the suit has become barred by limitation. [Para 16]
Taking up the issue from any angle, Courts below were unjustified in holding that the suit was barred by limitation. Question No. 1 framed by this Court is answered by holding that in view of admission made by the parties, the oral mortgage is proved, but, the legal mortgage would come into existence only on completion of twelve years from the date of oral mortgage. Question No. 2 cannot be answered in favour of the defendants because in absence of a legal sale-deed, as required under Section 54 of the Transfer of Property Act, read with Section 17 of the Registration Act, the defendants cannot be said to be legal and valid purchasers of the property. Question No.3 has to be decided against the interest of the defendants because they have failed to produce the valid sale-deed conveying the title in their favour and have also failed to prove perfection of title by adverse possession.
[Para17]
As the suit of the plaintiffs is not barred by limitation and the defendants have not acquired any rights either under the alleged sale-deed or by way of prescription, the suit of the plaintiffs must be decreed. It is, accordingly, decreed. The plaintiffs are held entitled to the property in dispute. [Para 18]
Law Laid Down :
In absence of legal sale-deed duly registered, the defendants cannot be said to be legal and valid purchaser of the property.
Conclusion :
As the suit of plaintiffs is not barred by limitation and the defendants have not acquired any rights under alleged sale-deed or by way of prescription the suit of plaintiff is liable to be decreed.
Decided in Favour of :
Appellant
Appeal Allowed
( 2 ) THE appeal has been admitted for hearing the parties on the following substantial questions of law:"1. In view of the fact that there is no mortgage deed, whether the learned Judge has erred in holding that the suit land was orally mortgaged to the defendants" 2) In view of the fact that the defendants have not produced sale deed alleged to have been executed on 24-1-1963 and 7-10-66, whether the learned Judge has erred in holding that the defendants had purchased the suit land from the plaintiff and Bhavsingh Hurji" 3) In view of the fact that the defendants have not produced sale deed in order to prove their ownership over the suit land and that the defendants have not given any explanation for producing the sale deed, whether the learned Judge has erred in holding that the defendants are the owners of the suit land and the suit is time barred""
( 3 ) THE appellants-plaintiffs had filed the suit for declaration and possession of certain land on the basis of their title, submitting, inter alia, that the defendants were in possession of the property and as the defendants do not have any right to continue in possession, the possession be restored back to them. 3. 1 The defendants appeared before the Court and submitted that on 25th July, 1954, the land in dispute was mortgaged with the defendants under an oral mortgage, thereafter, by a sale deed dated 24th January, 1963, the property has been sold in favour of the respondents-defendants, and yet by another document dated 7th October, 1966, the rest of the property was sold by the plaintiffs in favour of the defendants. 3. 2 Consequent upon the defendants written statement, the plaintiffs amended the suit and submitted that a decree for redemption be granted in favour of the plaintiffs. 3. 3 The learned trial Court framed as many as eleven issues; Issue No. 4 related to the oral mortgage while Issue Nos. 5 and 6 were relating to execution of the sale deed dated 24th January, 1963 and 7th October, 1966, Issue No. 8 related to the question of limitation and it reads as: "whether the suit is time barred". 3. 4 The parties did not lead any evidence and the Court proceeded to decide the matter on the strength of the pleadings and the documents produced by the parties. 3. 5 The learned trial Court held that the defendants were successful in proving that the plaintiff No. 1 and Bhavsingh had handed over the possession of the suit property to the defendants under an oral mortgage on
25th July, 1954. The Court also held qua Issue Nos. 5 and 6 that certain writings were executed by the plaintiffs in favour of the defendants. It also held that the suit is barred by limitation. 3. 6 As the appeal suffered the very same fate, the plaintiffs are before this Court.
( 4 ) SHRI Amin, learned Counsel for the appellants, submits that the Courts below were absolutely unjustified in dismissing the suit, less appreciating that for the purpose of Section-60 of the Transfer of Property Act, the mortgage must be by a registered document and unless the document is registered, the document would not be admissible, though the Court would be entitled to look into the fact of possession, that too, for collateral purpose. His further submission is that assuming in the year 1954, the oral mortgage was created between the parties and the oral mortgage was contrary to law, then, on completion of twelve years from the date of the oral mortgage, the person in possession would become legal and valid mortgagee. His submission is that if on completion of twelve years from 25th July, 1954, that is, date of oral mortgage, the defendants have acquired the right of a valid mortgagee, then, the limitation for redemption would be thirty years and, therefore, the Court was absolutely unjustified in holding that the suit was barred by limitation.
( 5 ) SHRI Patel, learned Counsel for the respondents, on the other hand, submitted that present is not a case of a simple oral mortgage and perf
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