Madhya Pradesh High Court
Sheetal Prasad [D] Lrs Mahila Shanti vs Ram Krishna And Ors. on 8 May, 2017
Author: Anand Pathak
Bench: Anand Pathak
1 S.A.No. 877/2004
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
HON'BLE JUSTICE ANAND PATHAK
SECOND APPEAL NO.877/2004
Sheetal Prasad (Dead) through LRs. & Ors.
Versus
Ram Kiishna & Ors.
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Shri K.B.Chaturvedi, learned Senior Counsel with Shri Gopal
Chaurasiya, learned counsel for the appellants/plaintiffs.
Shri H.D.Gupta, learned senior counsel with Shri D.D.Bansal &
Shri Santosh Agrawal, learned counsel for the
respondents/defendants.
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JUDGMENT
(Delivered on this 8th Day of May, 2017) The present appeal under Section 100 CPC has been preferred by the appellants challenging the judgment and decree dated 3/11/2004 passed by the Fourth Additional District Judge, (Fast Track) Shivpuri in Civil Appeal No. 107-A/2004, wherein appeal preferred by the respondents/defendants has been allowed and judgment and decree dated 11/5/2000 passed by Civil Judge, Class II, Kolaras, District Shivpuri in civil Suit No. 42- A/1989 has been reversed.
2. The facts in brief are that appellants/plaintiffs (Original plaintiffs Sheetal Prasad (deceased) through LRs and Ramesh Prasad) have filed a suit for declaration and recovery of possession against the respondents on the basis that plaintiff No. 1 Sheetal Prasad and plaintiff No. 1-Ramesh Prasad are real brothers and are having a joint suit property. Plaintiff No. 2- Ramesh Prasad had taken some loan from defendant No. 2- Kushal Singh on 21/5/1984 and 11/10/1985 of Rs. 4,000/- and 4100/- and on said dates executed sale deeds respectively in the name of defendant No. 1. In pursuance to execution of sale deeds, possession was also delivered to defendants. According to plaint allegations, said sale deeds were in effect Mortgage deeds and just to secure the mortgaged amount, sale deeds have 2 S.A.No. 877/2004 been executed and it was not intended for sale. Defendant No. 1 was minor at that point of time and the land in question was not divided between plaintiffs. Later on, plaintiff No. 2 tried to return the loan amount of Rs. 8100/- to defendant No. 1, which was refused by defendants No. 1 and 2, therefore, suit was instituted for declaration of title over suit property and for recovery of possession.
3. Defendants No. 1 and 2 by filing written statement denied the plaint allegations and submitted that the suit property is of their right, title and interest and possession and mutation had also been done accordingly. Further submission was that plaintiff No. 1 has consented to the transaction therefore, he is estopped from raising any grievance. Similarly, it was further submitted that defendant No. 1 has contracted the suit land to be sold to defendant No. 4 Ashok Singh vide agreement to sale dated 20/12/1988 and therefore, unless the plaintiffs seek declaration in respect of annulment of said sale agreement, no relief can be granted. Pleas regarding valuation of the suit and non-joinder of necessary parties were also raised.
4. Defendant No. 4 moved an application under Order 1 Rule 10 CPC for impleadment as party-defendant and vide order dated 25/3/1991, he was arrayed as party-defendant No. 4.
5. Trial Court framed as many as seven issues in the controversy and considering the submissions, pleadings and evidence led by the parties, decreed the suit. While decreeing the suit, trial Court recorded the finding that plaintiffs have proved their case that sale deeds were in fact executed for securing the mortgage transaction and therefore, they were effectively mortgage deeds and treated the suit as of redemption of mortgage and proceeded to hold that the transactions were mortgage in nature and therefore, defendants are obliged to return the possession of the land in question to the plaintiffs who in turn were directed to pay the amount of Rs. 8,100/- to the defendants. Court fees was directed to be paid by the plaintiffs for enforcement purpose.
6. Challenging the said judgment and decree, defendants 3 S.A.No. 877/2004 preferred first appeal under Section 96 of CPC before the First Appellate Court which in turn has allowed the appeal and despite giving findings in favour of plaintiffs regarding nature of documents treating it to be mortgage deed allowed the appeal and reversed the decree passed by the trial Court on the ground that the plaintiffs have not sought the relief of redemption of mortgage and while interpreting the provisions of Order VII Rule 7 CPC came to the conclusion that relief which had not been claimed by the plaintiffs cannot be awarded to the plaintiffs as according to first appellate Court, the suit was not filed by the plaintiffs in accordance with Section 83 of the Transfer of Property Act, 1882.
7. Challenging the judgment and decree passed by the first appellate Court, whereby the suit has been dismissed, the appellants/plaintiffs have preferred this appeal under Section 100 of CPC and tried to make a dent in respect of observations made by the first appellate Court. The appeal was admitted vide order dated 13/8/2007 on the following substantial questions of law.
"i) Whether, the lower Appellate Court erred in holding that without initiating the proceedings under Section 83 of the Transfer of Property Act, the suit for declaration is not maintainable and set aside the judgment and decree of the trial Court ?
ii) Whether, the court can exercise power under order 7 rule 7 CPC, and in case prayer clause of the plaint, is defective but plaint contained all the necessary facts, for granting relief as may be found necessary instead of denying him upon hyper technical view ? Iii) Whether, the appellate court while affirming the finding of the lower court about the sale deed which are for the security of loan even then committed an error of law of dismissing the suit on technical grounds?"
8. Learned senior counsel for the appellants has submitted that lower appellate Court erred in holding that without initiating the proceedings under Section 83 of the Transfer of Property Act, 4 S.A.No. 877/2004 the suit for declaration is not maintainable because according to him, the relief could have been moulded by the trial Court under Order VII Rule 7 CPC. The trial Court has the authority to mould the relief, therefore, trial Court has rightly moulded the relief, wherein, the suit for declaration and possession was treated as suit for annulment of sale deeds dated 21/5/1984 and 11/10/1985 and for redemption of mortgage. Once the findings have been given by the trial Court in favour of the present appellants and confirmed by the first appellate Court then first appellate Court had no occasion to allow the appeal and dismiss the suit. Learned Senior counsel for the appellants further submits that by way of abundant caution, appellants have also preferred an application under Order VI Rule 17 CPC vide I.A. No.4620/2010 in which amendment in relief clause has been sought. Through the aforesaid application one additional relief has been intended to be incorporated wherein the relief of declaration to the effect that sale deeds dated 21/5/1984 and 11/10/1985 are mortgage deeds instead of sale deeds and the land in question be released from mortgage and suitable decree be passed by directing the plaintiffs to pay Rs. 8100/- to defendants. He submits that even today plaintiffs are ready to pay the amount. In respect of his submissions judgments of Hon'ble Apex Court in the matter of L.C. Hanuman Thappa Vs. H.B.Shivshaker, (2016) 1 SCC 332, Vasant Balu Patil Vs. Mohan Hirachand Shah and Ors., (2016) 1 SCC 530 and Kalyan Singh Vs. Vakil Singh and Ors., AIR 1990 MP 295 have been relied by learned counsel for the appellants/plaintiffs.
9. Learned senior counsel for the appellants further contended that from the pleadings and evidence led by the parties, it is clear that said sale was in effect mortgage transaction and sale deeds were effectively mortgage deeds, therefore, there is no cavil of doubt about the nature of documents, therefore, first appellate Court erred in dismissing the suit preferred by the appellants. In support of his submissions he referred to the decision of Hon'ble Apex Court in the matter of Smt. Indira Kaur and ors. Vs. Shri Sheo Lal Kapoor, AIR 1988 SC 1074, Ram 5 S.A.No. 877/2004 Vilas Vs. Kareem Khan and Ors. (2017) 1 SCC 789 and Mushir Mohammed Khan Vs. Smt. Sajeda Bano and Ors., 2000 (1) JLJ 327 (SC). According to him in the fact situation of the case, appellants be given a chance to amend the pleadings so that they can add necessary relief in the relief clause for getting the relief. According to him, the appellate Court has taken hyper technical view and allowed the appeal on technical ground. He prayed for setting aside of the judgment and decree passed by the first appellate Court and also prayed for decreeing the suit in terms of judgment and decree passed by the trial court.
10. On the other hand, learned senior counsel for the defendants opposed the prayer made by the learned senior counsel for the appellants. According to him, the sale deeds have been executed in favour of the defendants and as per Section 54 of the Transfer of Property Act and by the said transaction, appellants have transferred ownership in exchange for a price paid. He further made reference to Section 58 of the Transfer of Property Act, 1982 and submits that the said provision deals in respect of mortgage of immovable property and here no such mortgage prescribes the absolute sale as one of the modes of mortgage. It is not a matter of conditional sale but is a case of outright sale. He further referred to Section 60, 63, 63-A,70,72 of the Transfer of Property Act. He further relief upon Section 92 of the Indian Evidence Act which deals in respect of execution of evidence of oral agreement. Provisions of Transfer of Property Act refers right of mortgagee in possession. Accession to mortgaged property amounts to right of mortgagor to redeem. He submits that those aspects needed to be considered in the controversy by the Courts below. If the transaction is treated to be a mortgage, the plaintiffs did not plead in the plaint regarding mortgage nor sought any relief,therefore, defendants never had the occasion to explain such exigencies in rebuttal and in absence of such exigencies, the case in hand cannot be treated as a suit for redemption of mortgage and appellate Court has rightly dismissed the suit because the provisions contained in Section 83 of the Transfer of Property Act have not been 6 S.A.No. 877/2004 complied with. In absence of any pleadings regarding redemption of mortgage, no relief can be granted to the appellants.
11. Learned senior counsel further contends in respect of amendment application preferred by the appellants and substantiated the futility of it. According to him, the amendment is at belated stage and through the amendment, plaintiffs have not stated the relief categorically. Amendment is barred by time as limitation for filing a suit for mortgage is 30 years from the date of mortgage and therefore, today the application is barred by time because it intends to relegate the plaint to a position back to date of filing of suit and therefore, at this stage such relief cannot be sought. Even if, amendment is allowed then present respondents/defendants will also have to make amendment in written statement and it will create unnecessary delay in the matter. He referred to decision of Hon'ble Apex court in the matter of Raj Kishore (Dead) by Lrs., Vs. Prem Singh and Ors., (2011) 1 SCC 657, Bishwanath Prasad Singh Vs. Rajendra Prasad and Anr., (2006) 4 SCC 432, Banarsi and Ors., Vs. Ram Phal, (2003) 9 SCC 606, Manjabai Krishna Patil (dead) by LRs., Vs. Raghunath Revaji Patil and Anr.(2007) 12 SCC 427, Rajendra Tiwari Vs. Basudeo Prasad and Anr., (2002) 1 SCC 90 and Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and Ors., AIR 1951 SC 177. He submits that no relief at this stage could be granted to the appellants and prayed for dismissal of the appeal.
12. Heard learned counsel for the parties and length and perused the record.
13. Appeal stood admitted vide order dated 13/8/2007 on following substantial questions of Law "i) Whether, the lower Appellate Court erred in holding that without initiating the proceedings under Section 83 of the Transfer of Property Act, the suit for declaration is not maintainable and set aside the judgment and decree of the trial Court ?
ii) Whether, the court can exercise power under order 7 rule 7 CPC, and in case prayer clause of the plaint, 7 S.A.No. 877/2004 is defective but plaint contained all the necessary facts, for granting relief as may be found necessary instead of denying him upon hyper technical view ? Iii) Whether, the appellate court while affirming the finding of the lower court about the sale deed which are for the security of loan even then committed an error of law of dismissing the suit on technical grounds?"
14. As regard substantial question No. 1:-
In fact all three issues are interconnected and intermingled but for convenience sake, each of the substantial questions of law are dealt with separately.
15. Trial Court while appreciating the evidence came to the conclusion that the transaction in hand was mortgage and not sale. For this purpose, trial Court relied upon the admission of defendant No. 2 in the mutation proceedings as well as the act of defendant No. 2 of omission not to appear in the witness box as well as because of the evidence of defendant No. 1 which could not substantiate the defence taken by the defendants. The said findings were affirmed by the appellate Court in appeal.
16. Section 83 of the Transfer of Property Act, defines the mechanism available for a mortgagor to adopt for redemption of mortgage. Effect of Section 83 of the Transfer of Property Act is followed by Section 84. When a specific provision is available in the statute governing a particular transaction then it was incumbent upon the plaintiffs to take recourse to such mechanism as prescribed in law. Here in the present case, plaintiffs have set up their case on the basis of two sale deeds dated 21/5/1984 and 11/10/1985 which according to them were mortgage deeds therefore, according to them, from their own admissions, provisions of Section 83 comes into play. Bypassing the said provisions and filing a suit for declaration and possession such relief would not have been available to the plaintiffs, therefore, the appellate Court rightly held that relief for declaration (that plaintiffs are absolute owners of the suit land) could not have been claimed without seeking declaration that the registered sale 8 S.A.No. 877/2004 deeds dated 21/5/1984 and 11/10/1985 were loan transactions and were not a real sale. In absence of any relief claimed in this regard, the suit was not maintainable in respect of the relief as purportedly sought by the appellant. Hon'ble Apex Court in the matter of N.V.Sriniwasa Murthy and Ors. Vs. Mariyamma (Dead) by proposed LRs., and Ors., (2005) 5 SCC 548 has clarified this position. Therefore, substantial question of law No. 1 is answered accordingly that the lower appellate Court has not erred in holding that without initiating the provisions under Section 83 of the Transfer of Property Act, suit for declaration could not have been maintainable and rightly set aside the judgment and decree of the trial Court. The judgments relied upon by appellants are factually distinguishable.
17. Regarding substantial question of law No. 2:-
In the present case, originally; relief claimed by the plaintiffs was in respect of declaration of title whereas relief intended to be sought by the plaintiffs was declaration in respect of redemption of mortgage with a direction to the defendants to release the land in favour of plaintiffs. These two reliefs are two different relief which cannot be included into the moulding of relief as per Order VII Rule 7 CPC. Order VII Rule 7 CPC reads as under:-
"7. Relief to be specifically stated.-Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
From the perusal of the bare plaint, it is clear that pleadings confined to the relief of declaration and possession claimed by the plaintiffs and opposed by the defendants and when specific issues were framed in accordance with specific pleadings and parties had occasion to adduce evidence in support of their respective claims confining to the issues framed then would be beyond the jurisdiction and justification of the trial Court in 9 S.A.No. 877/2004 moving beyond the scope of pleadings, issues and evidence and thereafter grant a totally different relief of redemption of mortgage not asked for by either of the parties. When a larger relief is prayed for and the claim for same is not duly proved or established but the evidence justifies grant of a smaller relief then in that condition granting of said smaller relief is permissible under the provisions of Order VII Rule 7 CPC. However, under the guise of the said provision, a relief larger then the actually claimed by the plaintiffs in the suit, cannot be granted. Order VII Rule 7 CPC casts upon a duty over the plaintiff also to seek specific relief which the plaintiff intends either simple or in alternative. Althoguh general or other relief may always be given as the Court may think just to the same extent as if it had been asked for. Here the plaintiffs as well as the trial Court excceeded the said extent wherein relief altogether different has been granted. Judgments relied upon by appellants do not touch the factual aspect involved in the present case. Therefore, substantial question of law No. 2 also goes against the present appellants and it is held that in absence of any relief prayed in the plaint,the said relief could not have been granted to the plaintiffs, even if, the plaint contain all the necessary facts because the defendants did not get any chance to rebut the claims made by the plaintiffs under the disguise of Order VII Rule 7 CPC.
18. As regards substantial question of law No. 3:-
Trial Court passed the decree in favour of the plaintiffs holding the transaction to be a mortgage and appellate Court affirmed the said findings. Appellate Court dismissed the suit on the ground of Section 83 of the Transfer of Property Act and in absence of pleadings in this regard, appellate Court rightly declined to mould the relief under Order VII Rule 7 CPC. The said aspect has been rightly dealt with by the appellate Court and once the Court had arrived to the conclusion regarding non- maintainability of the suit itself in view of Section 83 of the Transfer of Property Act and non-grant of moulded relief under Order VII Rule 7 CPC then the appellate Court should have desisted to affirm the findings given in favour of plaintiffs 10 S.A.No. 877/2004 regarding nature of transaction. Once the suit itself was not maintainable and relief could not have been moulded then the appellate Court exceeded the jurisdiction in giving such findings in favour of plaintiffs. Thus, substantial question of law No. 3 is answered accordingly.
19. One aspect, still subsist regarding I.A.No. 4620/2010, an application for amendment.
20. Learned senior counsel for the appellants/plaintiffs has pressed the said application and submits that appellants be allowed to incorporate such amendment in the plaint as the appellants intend to add additional one relief as mentioned in the application. His further submission is that if the amendment is allowed then the matter needs to be remanded back to the trial Court for rehearing while setting aside the impugned judgment and decree. He relied upon the judgment as referred upon in support of his claim.
21. On the other hand, learned counsel for the respondents opposed the prayer made by the appellants/plaintiffs and submits that amendment application has been made at a belated stage and does not categorically states the relief as sought by the appellants. In absence of amendment of the pleadings of the plaint, only relief cannot be added in the plaint. He further raised point of limitation involved in the case as according to him, as per Article 61 of the Limitation Act, the limitation prescribed for filing a mortgage suit is 30 year and therefore, the said period has lapsed in year 2015 and if amendment is caused today then it would amount to causing an amendment which is otherwise barred by law. He also submits that if the amendment is caused by the plaintiffs then defendants would also have to cause amendment and this would make the litigation an unending affair.
22. Hearing both the sides on I.A.No. 4620/2010, an application for amendment under Order VI Rule 17 CPC, it appears that plaintiffs seek amendment in the plaint by adding further relief through amendment. It further appears that plaintiffs intend to take the relief as per doctrine of relation back i.e. relation back to the amendment to the date when the suit was 11 S.A.No. 877/2004 originally filed but the said doctrine cannot be of any help to the appellants at this stage because this is barred by Article 61 of the Limitation Act whereby, suit relating to immovable property by a mortgagee to redeem or recover possession of immovable property, limitation has been provided as 30 year from the date when the right to redeem or to recover the possession accrued. Here on this analogy, if the amendment is allowed today then as per the doctrine of relation back, it would relate back when the suit was originally filed in year 1988, therefore, the said liberty would not come to rescue of the appellants in the present case. This aspect has been dealt by Hon'ble Apex Court in the matter of L.C. Hanuman Thappa (Supra). In fact this judgment helps the respondents more than the appellants. The other judgments relied by the learned senior counsel for the appellants are of no avail to the appellants because facts of those cases are different vis-a-vis the present case. Here the case is barred by limitation, therefore, amendment cannot be made at such a belated stage. Even otherwise,in absence of any pleadings in the plaint, only relief is intended to be added. This would require the defendants to make specific pleadings in their written statement wherein they have to plead regarding Section 60, 63, 63-A, 70, 72 of the Transfer of Property Act and would start denovo trial, therefore, I.A.No.4620/2010 filed by the appellants/plaintiffs is hereby dismissed.
23. On the basis of cumulative analysis and as per the discussion made above, appeal sans merits and is hereby dismissed.
(Anand Pathak) Judge jps/-