Uttarakhand High Court
Mohan Chandra Tamta vs Ali Ahmad Alias Murli (D) And Ors. on 8 June, 2007
Equivalent citations: 2008(1)AWC1093
Author: Prafulla C. Pant
Bench: Prafulla C. Pant
JUDGMENT Prafulla C. Pant, J.
1. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 17.4.1979, passed by learned Civil Judge, Almora, in Civil Appeal No. 10 of 1975, whereby judgment and decree dated March 29, 1975, passed by Munslf, Almora, in Civil suit No. 20 of 1969, decreeing the suit for possession, is set aside and suit is dismissed.
2. Heard learned Counsel for the parties and perused the record.
Brief facts of case are that Civil suit No. 20 of 1969 was filed by plaintiff/appellant Mohan Chandra Tamta, for recovery of the possession of the property, with the pleadings that a house bearing Municipal No. 166 (Old No. 96), situated in Mohalla Dhunikhola (Tirwakhola), is within the limits of Municipal Board, Almora. It is pleaded that the plaintiff is owner of the said building. Details or the property in suit are given in Para 1 of the plaint, stating that in the settlement of 1944, in Phat Khata No. 92, Muntakhib No. 37, building is shown bearing No. 3696, its Chowk is shown bearing No. 3694 and path to the building is shown bearing No. 3695. Plaintiffs case is that he purchased the said property from Lalta Prasad Tamta through registered sale deed dated 27.8.1966. Narrating the source of title, it is alleged in the plaint that in the Becket Settlement of year 1872, the property in suit was owned by three brothers namely, Pir Bux, Kalia and Shivrati. Pir Bux. being the eldest brother, according to the then existing 19th Century Kumaun System, was shown as Hissedar, while his brothers were shown as Sikmi. ('Sikmi' in the then existing system meant a shareholder with Hissedar). As such, each brother had 1/3rd share in the property. In Becket Settlement of 1872, the building in question had its No. 953 and chowk and path were borne in Nos. 950. 951 and 958. Pir Bux mortgaged his 1/3rd share in the property for a loan of Rs. 50 to one Ahmadulla in the year 1872. Since, Shivrati died issueless, his share devolved on his brothers, namely, Pir Bux and Kalia equally. As such, each one of them became owner of 1/2 share in the property. After the death of Kalia, his share was succeeded by his son Ilahi Bux. Said share ultimately succeeded by Smt. Hafizan (widow of Ilahi Bux), who transferred the said 1/2 share in the property to Lalta Prasad Tamta (predecessor in title of Plaintiff). Gulam Farid, son of Pir Bux, who succeeded his father's 1/2 share in the property, transferred the 1/6th share in the property to Lalta Prasad vide sale deed dated 28.7.1944. As such remaining 1/3rd share remained under mortgage, which ultimately got redeemed and transferred vide sale deed dated 17.3.1954 by said Lalta Prasad from Gulam Farid. As such, Lalta Prasad became owner of the whole of the property in suit since 17.3.1954, and also he got possession of the property. It is also pleaded in the plaint that name of Lalta Prasad was recorded in the records as full-fledged HISSEDAR of entire property. In Para 8 of the plaint, it is alleged that in the second floor of the house, defendant No. 1 Khalil Ahamad and defendant No. 2 All Mohammad alias Murli, were permitted by Lalta Prasad to stay. It is also pleaded in said Para that since major portion of the ground floor of the building with the flux of time got embedded, as such the second floor used to be called first floor of the house. In the year 1960, Lalta Prasad Tamta, gave a notice to defendant Nos. 1 and 2 to leave the house, which they refused and as such he (Lalta Prasad) filed a suit for their eviction. In said suit defendants No. 1 and 2 claimed themselves to be tenants of defendant No. 3 Mustafa Shah Khan. (Mustafa Shah Khan was not party in said suit). The said suit filed by Lalta Prasad (predecessor in title of the plaintiff), was dismissed and appeal filed by Lalta Prasad was also dismissed vide order dated 28.3.1964, passed by appellate court. It is alleged in the plaint that defendants No. 1 and 2, thereafter, trespassed over remaining rooms of the second floor. It is pleaded by the plaintiff that defendant No. 3, claims himself to be heir of original mortgagee Ahmadulla Khan, but he has no right in the property in suit. It is further pleaded in the plaint that in fact one Mahmood Shah Khan, who was one of the three sons of Ahmadulla, succeeded the rights of the morgagee (Ahamadulla) to the extent of 1/3rd share. Heirs of Mahmood Shah Khan, in the year 1931, transferred the rights of morgagee to one Sadiq Hussain and Vilayat Hussain, to said extent of 1/3rd share of the property. In the year 1958, in a litigation (Civil suit No. 216 of 1958), with Lalta Prasad, the two (Sadiq Hussain and Vilayat Hussain), entered into compromise and abandoned their rights with effect from 16.6.1960. The remaining 2/3rd share of the 1/3rd mortgaged property, the other two sons Jahid Shah Khan and Masood Shah Khan, continued to remain mortgagee since 1931 till 1954, when the property was finally got redeemed fully. With aforesaid pleadings the plaintiff filed suit for recovery of possession of the property of the second floor (Timanzila) of the house in suit. Also, in alternative redemption was also sought stating that the plaintiff is further ready to pay Rs. 50 to the defendant No. 3.
3. Defendants No. 1 and 2 contested the suit and filed their joint written statement before the trial court In which the details of the house in question are admitted, however, the ownership of the plaintiff is denied. It is pleaded in the written statement that it was only Pir Bux, who was Hissedar (owner) of the property in question in the Settlement year 1872, but his brothers Shivrati and Kalia had no shares in it. It is further pleaded by the two defendants that Shivrati and Kalia never remained in possession of the property nor they were related with Pir Bux. It is also denied that Ilahi Bux was son of Kalia. However, it is admitted that Smt. Haflzan was wife of Ilahi Bux. Lalta Prasad, never got possession of the property in suit and entries of ownership in his favour in the record is wrong. According to defendants No. 1 and 2, the property in suit was in possession of one Jahid Shah Khan, who was brother of defendant No. 3, Mustafa Shah Khan. Jahid Shah Khan died issueless and thereafter defendant No. 3 became owner of the property. Defendants No. 1 and 2 are tenants of defendant No. 3. It is further stated in the written statement that Lalta Prasad's son Bishan Prasad initiated proceedings under Section 107 of Code of Criminal Procedure, against the defendants No. 1 and 2, but the same was rejected. Denying that the mortgaged property was ever redeemed, the two defendants have stated that they are tenants for more than 40 years, since the time of Jahid Shah Khan. In the additional pleas, it is stated that Ahamadulla was in possession of the property in suit from the time before the settlement year of 1872. It is also pleaded that Lalta Prasad vide his notice dated 10.12.1955, had earlier demanded rent from Abdul Razak, father of defendant No. 2 and when he did not succeed another notice in the year 1957 and again in the year 1960 whereafter a Civil suit No. 115 of 1960, was instituted by him. However, same was dismissed on 31.7.1961. It is admitted that the appeal against said decree was also dismissed on 28.3.1964. It is also pleaded that the suit is bad for non-joinder of heirs of Ahmad Shah Khan. The alternative relief of redemption is barred by Order XXXIV, Rule 7 of Civil Procedure Code.
4. Defendant No. 3 Mustafa Shah Khan filed his separate written statement admitting the details of the property, but he also denied the title of the plaintiff. This defendant has pleaded that none of Pir Bux, Kalia or Shivrati had any right or title over the disputed property nor were they in possession of the property. It is denied that defendants No. 1 and 2 were lincensee of Lalta Prasad (predecessor in title of the plaintiff Mohan Chandra Tamta). It is admitted that suit filed by Lalta Prasad was dismissed by civil court. It is also specifically pleaded that rights of Ahmadulla Khan were not that of mortgagee nor is there question of redemption of the property. In the additional pleas, the defendant No. 3, states that suit is bad for misjoinder of causes of action and alternative relief of redemption is barred by Rules 4 and 5 of Order XXXIV of Code of Civil Procedure, 1908. It is also pleaded that assuming for a moment that there was a mortgage, in that event, suit for redemption is barred by time. According to this defendant from Ahmadulla, the property was succeeded by his sons Mahmood Ahmad Shah Khan and Masood Shah Khan, whereafter, Jahir Shah Khan son of Ahmad Shah Khan succeeded the property and finally it came to the ownership of defendant No. 3. It is denied by defendant No. 3 that Ilahi Bux was son of Kalia or that the Hafizan was his wife. It is also denied that Gulam Farid was son of Pir Bux. Alleging that the sale deed, executed in the year 1966, is a forged one, it is stated that Lalta Prasad had no right over the property in suit nor could he transfer it to the plaintiff. It is also stated by this defendant that Vilayat Hussain had no concern over the property in suit and compromise entered between Vilayat Hussain and Lalta Prasad is not binding on the answering defendant. In Para 32 of the written statement of defendant No. 3, it is pleaded that as per the family settlement of the defendants, their ancestral family properties of Almora, Ranlkhet and Rampur, were partitioned and the property of Almora and Ranlkhet, came in the share of Jahid Shah Khan.
5. On the basis of the pleadings of the parties following issues were framed by the trial court:
(i) Whether the plaintiff is the owner of the property in suit?
(ii) Whether 1/3rd share in the house specified in Para 3 of the plaint was mortgaged? If so, whether the mortgage has been redeemed?
(iii) Whether the suit is barred by time?
(iv) Whether defendants No. 1 and 2 were licensees of the property in suit of the plaintiff and have they trespassed in the remaining portion of the house?
(v) To what relief, if any, is the plaintiff entitled?
6. After recording evidence and hearing the parties, the trial court found that property in suit was owned by Lalta Prasad and it was transferred by him, by a sale deed, to the present plaintiff. It is also found proved that 1/3rd share in the house in question was mortgaged as alleged in the plaint by Pir Bux to Ahamadulla. The trial court further found that the suit is within time. Issue No. (iv) also decided against the defendants and as such the Civil suit No. 20 of 1969 was decreed by the trial court (Munsif Almora), vide his judgment and decree dated March 20, 1975. Aggrieved by said Judgment and decree, Civil Appeal No. 10 of 1975, was filed by defendant No. 2 All Ahmad alias Murli (No appeal was filed by defendant No. 3 Mustafa Shah Khan against the decree passed by the trial court). After hearing the parties the lower appellate court (Civil Judge, Almora) allowed the Civil Appeal No. 10 of 1975 vide its judgment and order dated 17.4.1979, and dismissed the plaintiffs suit. Hence, this appeal was filed by the plaintiff before Allahabad High Court on 27.8.1979. This appeal is received by transfer to this Court, under Section 35 of U.P. Reorganization Act, 2000. The second appeal was admitted by said court on 14.12.1979 on the following substantial question of law:
Whether the plaintiffs suit was barred by limitation or that it could be dismissed on the ground that he was not the owner of a 1/3rd share of the property or that the predecessor in interest of defendant-respondent No. 3 was legally authorized to induct defendant-respondent No. 1 as a tenant.
7. Answer to substantial question of law.--Before further discussions, it is pertinent to mention here the relevant provisions of law applicable to this case. Article 61 and Article 65 of the Schedule of Limitation Act, 1963 provide the period of limitation as under:
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Description of suit Period of Time from which
limitation period begins to run
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61. By a mortgagor-- Thirty years When the right to redeem or to recover possession
(a) to redeem or recover accrues.
possession of immovable property mortgaged ;
(b) to recover possession Twelve When the transfer
of immovable property years becomes known to the
mortgaged and plaintiff.
afterwards transferred
by the mortgagee for
a valuable
consideration;
(c) to recover surplus Three years When the mortgagor re-
collections received enters on the mortgaged
by the mortgagee property.
after the mortgage
has been satisfied.
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65. For possession of immovable Twelve year When the possession of property or any interest the defendant becomes therein based on title. adverse to the plaintiff.
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8. In the present case, the suit was filed for two reliefs namely, for possession, and in alternative for redemption. The trial court decreed the suit for possession, while lower appellate court dismissed the suit. The suit for relief of redemption could be filed by the plaintiff within thirty years from the date when right to redeem or recover the possession accrues. The lower appellate court, in the opinion of this Court, has erred in law in ignoring the pleadings contained in the plaint. In the plaint, it is specifically pleaded in Para 12 that property was redeemed in the year 1954, as such, suit could be filed within thirty years since then. The present suit is filed on 19.4.1969, much before expiry of thirty years. As such, the same cannot be said to be barred by time. In fact, suit is filed within fifteen years of the redemption. Aforesaid pleading is proved by the plaintiff by documentary as well as oral evidence. P.W. 1 Mohan Chandra Tamta, has adduced the evidence that Gulam Farid, son of Pir Bux got redeemed the mortgaged property by making payment on 17.3.1954 to the successor of the mortgagee. This witness has proved said receipt. P.W. 2 Ram Prasad Tamta, father of plaintiff, Mohan Chandra has further proved the aforesaid fact. The factum of mortgage also gets mention in Ext. 8 executed by Gulam Farid, son of Pir Bux.
9. There is no period of limitation prescribed to pay the loan. The limitation is prescribed to file suit for recovery of loan by the creditor. It cannot be said that payment made after the period of limitation is not a valid payment. In this case the mortgagee never instituted a suit for foreclosure, as such doors of payment of loan remained open and right to redeem property accrued after the payment is made in 1954.
10. Also, suit for relief of possession is not beyond the period of limitation. In Para 9 of the plaint, it is specifically pleaded that defendants No. 1 and 2 trespassed over the entire second floor (Timanzila) of the house in suit, in February, 1964. The suit is filed in 1969 i.e., within six years of the alleged trespass, as such, the relief of possession is also not barred by period of limitation for the reason, that Article 65 quoted above provides twelve years limitation for the relief of possession from the date it (possession) became adverse.
11. As far as the question of title is concerned, the finding recorded by the lower appellate court, reversing that of the trial court is against the evidence on record. P.W. 2 Ram Prasad Tamta, father of the plaintiff, who is managing the affairs and prosecuting the case on behalf of his son, has proved this fact on the record that in February, 1964, defendants No. 1 and 2 forcibly took possession of whole of the second floor of the house in suit. This witness has also explained why Lalta Prasad (predecessor in title of the plaintiff) could not be produced in the Court. P.W. 2 Ram Prasad Tamta, in this regard states that Lalta Prasad had died in the year 1967, i.e., before the institution of suit in the year 1969.
12. P.W. 2 Ram Prasad Tamta, father of the plaintiff, has stated on oath that plaintiff Mohan Chandra Tamta, purchased the property in suit from Lalta Prasad, in the year 1966. It has also been established on the record by the sale deed executed by Lalta Prasad in favour of Mohan Chandra Tamta (plaintiff), whereby property in suit was purchased by him (plaintiff). Said document is paper No. 9 A1 on the record, which is a registered sale deed, which shows that Rs. 1,000 were accepted by Lalta Prasad as consideration of transfer of property to the plaintiff. How Lalta Prasad got ownership is also proved on the record on behalf of the plaintiff. It is pertinent to mention here Ext. 2 Muntakhib of settlement year, 1872, which shows that name of Pir Bux was originally recorded as Hissedar, and his two brothers Shivrati and Kalia were shown as Sikmi. As per the Stowell's manual, in Kumaun, word Sikmi means member of Joint family in an unpartitioned holding. Though, it is denied that Shivrati and Kalia were brothers of Pir Bux, but it is proved by oral evidence adduced on behalf of the plaintiffs that the three were brothers and name of their father was Lal Dhuni. The entries in the Muntakhib are corroborated from the entries made in Exts. A1 and A7. Not only this Ext. 4 is certified copy of the settlement of the year 1944. That also corroborates the pleadings of the plaintiff. The defendant No. 3 (he had not filed any appeal against the trial court's decree), has taken a case in his written statement that there was neither any mortgage nor any redemption. Ext. 2, a Muntakhib of settlement year of 1872 does show that in that year Pir Bux mortgaged 1/3rd share to Ahmadulla, whose descendant is defendant No. 3. The lower appellate court has committed grave error of law in ignoring such a best piece of evidence with regard to which there could and should not have been question after 100 years. The purchase of shares of Pir Bux and successor of his brothers by Lalta Prasad is not only supported by oral evidence, but gets corroboration from the registered deeds filed and proved on behalf of the plaintiff, which are Ext.7, Ext. 8, Ext. 9 and Ext. 10.
13. The lower appellate court appears to have been swayed by rent receipts fild on behalf of defendants No. 1 and 2 from the year 1946 to 1955. Much reliance has been placed on behalf of the respondents to the findings recorded in a Civil suit No. 115 of 1960, filed by Lalta Prasad (predecessor in title of the plaintiff), against defendants No. 1 and 2, which was lost by him and appeal was also dismissed vide order dated 28.3.1964, passed in Civil Appeal No. 58 of 1961. The defendants No. 1 and 2 took the plea that they were not licensee, but leasee of defendant No. 3, Mustafa Shah Khan. Perusal of the copies of the Judgment, passed in said proceedings, makes it clear that it did not relate whole of the third floor of the house in question. As such, on the basis of the decree passed in said suit, defendants Nos. 1 and 2 cannot be said to be tenants, in respect of two rooms of which they were not even in occupation prior to February, 1964. Rather they were in occupation prior to said period only in two rooms (one room in occupation of each of the defendants No. 1 and 2). The trial court has rightly found that after the redemption of the mortgage in 1954, defendant No. 3 in collusion with defendants No. 1 and 2, dispossessed Lalta Prasad, from the remaining two rooms of the second floor (Timanzila). As to the rent receipts, it is evident from the record that defendant Nos. 1 and 2 were in collusion with defendant No. 3, though they knew that the property is owned by Lalta Prasad Tamta (predecessor in title of the plaintiff). As such, much importance cannot be given to such receipts. It cannot be ignored that defendant No. 3 himself did not file appeal against the decree passed by the trial court in favour of the plaintiff nor did he put appearance in this appeal.
14. In view of the above discussions, substantial question of law stands answered holding that plaintiffs suit is not barred by time, nor could it be dismissed on the ground that the plaintiff is not owner in respect of the share mortgaged to Ahmadulla Shah Khan, as the plaintiff has proved his full title over the property in suit. This Court further holds that defendant No. 3 was not even entitled to induct the defendants No. 1 and 2, as tenants, in the house in suit.
15. For the reasons as discussed above, the Judgment and decree passed by lower appellate court is liable to be set aside. The appeal deserves to be allowed. The second appeal is allowed.
16. The judgment and decree dated 17.4.1979, passed by Civil Judge, Almora, in Civil Appeal No. 10 of 1975 is hereby set aside. The judgment and decree dated 20th March, 1975, passed by the then Munsif, Almora, in Civil Appeal No. 20 of 1969, for recovery of possession by the plaintiff, is upheld. The respondents are allowed one month's time from today to deliver the possession of the property in suit to the plaintiff and if they failed to vacate, the plaintiff/appellant may get the decree executed through the trial court, No order as to costs of this appeal.