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2015 Supreme(P&H) 2122
IN THE HIGH COURT OF PUNJAB AND HARYANA
KULDIP SINGH, J.
DHAN RAJ AND OTHERS – Appellant
Versus
SATPAL AND OTHERS – Respondent
R.S.A. No. 3136 of 2009 (O/M)
Decided on : 23-09-2015
Advocate Appeared:
For the Appellant :S.S. Narula, Advocate
For the Respondent:Munish Jolly, Advocate
The central legal point established in the judgment is that possession cannot be delivered to the defendants unless the mortgage is redeemed, based on the provisions of the Transfer of Property Act.
Headnote:
Mortgage - Property Dispute - Transfer of Property Act - Section 2, Section 58 - Oral mortgage, possession, and redemption - The court reversed the findings of the lower courts and held that the plaintiffs were the mortgagee in possession of the suit land. It further held that possession cannot be delivered to the defendants unless the mortgage is redeemed. The decree for possession granted by way of counter-claim was set aside and the counterclaim of the defendants was dismissed.
Fact of the Case:
The plaintiffs filed a suit for declaration to claim ownership of a mortgaged property, which they argued had not been redeemed within the prescribed period of limitation. The defendants denied the mortgage and claimed possession of the property.
Finding of the Court:
The court found overwhelming evidence to support the plaintiffs' claim as the mortgagee in possession of the suit land. It held that possession cannot be delivered to the defendants unless the mortgage is redeemed.
Issues: The main issues included the validity of the mortgage, the rights of the plaintiffs as successors of the mortgagee, and the entitlement to possession.
Ratio Decidendi: The court's decision was based on the interpretation of the Transfer of Property Act, specifically the provisions related to oral mortgage, possession, and redemption.
Final Decision: The court allowed the appeal, set aside the decree for possession granted to the defendants, and dismissed their counterclaim. It also stated that the defendants could redeem the mortgage and seek possession of the land in the future.
KULDIP SINGH, J.
1. Impugned in the present regular second appeal is the judgment and decree dated 27.5.2009, passed by the learned Additional District Judge (Adhoc), Patiala, affirming the judgment and decree dated 23.12.2004, passed by the learned Civil Judge (Junior Division), Rajpura, vide which the suit of the plaintiffs/appellants herein was dismissed and the counter-claim of the defendants was decreed and decree for possession of the property, mentioned in the headnote of the plaint, was passed in favour of the defendants. Brief facts of the case are that as per the amended plaint of the plaintiffs/appellants before the lower Court, the plaintiffs/appellants had filed a suit for declaration to the effect that they have become the owner of the suit land measuring 20 kanals 2 marlas as the property has not been redeemed within the prescribed period of limitation. The plaintiffs/appellants claim that the disputed property was mortgaged by Ramji Dass and Radha Kishan sons of Nandoo with one Prabhu son of Kirpa Ram, which is reflected in Jamabandi for the year 1967. Later on, Radha Kishan died and vide mutation No. 296, Ramji Dass became the sole mortgagor and Prabhu continued to be the mortgagee. As per the mutation No. 340, Prabhu sold his mortgagee rights to Sant Ram son of Kanhiya, resident of village Chamar Heri in the year 1974 BK. In this way, Sant Ram became the mortgagee of the land. Ramji Dass (mortgagor) died and has been succeeded by the defendants. Sant Ram also died about 50 years ago, leaving behind three sons, namely, Shadi Ram, Chagli Ram and Amar Nath. Shadi Ram also died about 45 years ago and has been succeeded by Dhan Raj, Kesho Ram, Dev Raj and Norata Ram. Amar Nath died about 20 years ago and has been succeeded by his son Achhar Dass. Chagli Ram died about 17/18 years ago and has been succeeded by his only son Bachna (Bachna Ram). The limitation for redemption of the suit land has expired. Therefore, the plaintiffs/appellants have become the owner of the mortgaged property.
2. In the amended written statement filed on behalf of defendant No. 1 through his legal representatives, it was denied that Ramji Dass and Radha Kishan had mortgaged the disputed property with Prabhu. It was also denied that Prabhu sold his mortgagee rights to Sant Ram. It was stated that the mutation of mortgage was sanctioned at the back of Ramji Dass and is not binding on him and after his death, his legal heirs. It was stated that the contesting defendant and earlier his father had been cultivating the land at village Chamaheri, Tehsil and District Patiala. The plaintiffs/appellants and their predecessors-in-interest had been cultivating the land at village Bathonian Kalan, Tehsil Rajpura, with their mutual consent. The manipulation of the revenue record was done at the back of the contesting defendant and is incorrect. Therefore, prayer was made for grant of decree for recovery of possession in favour of defendant No. 1.
3. In replication, the plaintiffs/appellants reiterated the facts stated in the plaint. It was stated that the counter-claim was not within limitation.
4. From the pleadings, following issues were framed:-
1. Whether Ramji Dass and Radha Kishan had mortgaged the suit land in favour of Prabhu son of Kirpa as alleged in the plaint? OPP
2. Whether Prabhu sold his mortgagee rights to Sant Ram as alleged? OPP
3. Whether counter-claim is maintainable? OPP
4. Whether the plaintiffs are successors in interest of Sant Ram mortgagee? OPP
5. Whether plaintiffs have become owners of the mortgaged land by efflux of time? OPP
6. Whether plaintiffs are entitled to declaration as prayed for? OPP
7. Whether defendants are entitled to possession as prayed for in the counter-claim and consequential correction of the entries in the revenue record? OPD
8. Whether the counter claim for possession is within time? OPD
9. Relief.
An additional issue No. 1A was also framed:-
1A. Whether suit is not maintainable? OPD
5. Issue No. 1 was decide
