Patna High Court
Kalika Dut Mishra And Ors. vs Abdul Ajij Mia And Ors. on 1 August, 1975
Equivalent citations: AIR1976PAT187, AIR 1976 PATNA 187
JUDGMENT S.K. Choudhuri, J.
1. This second appeal has been preferred by the plaintiffs against the concurrent judgments of the Courts below dismissing their mortgage suit for redemption.
2. The suit was filed by the plaintiffs for redemption of the zarpeshgi deed dated the 28th June, 1946, full particulars of which have been given in paragraph 7 of the plaint.
3. It is the admitted case of the parties that the present plaintiffs and their ancestors filed a money suit being numbered as Money Suit No. 1 of 1945. The aforesaid money suit was decreed on contest and appeal preferred by Ram-khelawan Chamar and others was dismissed. Thereafter execution case No. 9 of 1946 was filed and the property covered by the aforesaid mortgage deed dated the 28th June, 1946 was auction sold and purchased by plaintiffs on 6-1-1947. Thereafter symbolical delivery of possession was obtained on 13-6-1947, in the aforesaid execution case.
The plaintiffs' case was that at the time of delivery of possession they, for the first time, came to know that Ram-khelawan Chamar executed the aforesaid mortgage deed dated the 28th June, 1946 for Rs. 481 (that is after attachment before judgment in money suit No. 1 of 1945 was made on 10-1-1945) in favour of one Pir Mohammad whose heirs and legal representatives are the defendants.
The plaintiffs' further case was that thereafter they filed a title suit being numbered as Title Suit No. 1 of 1957 for a declaration that the mortgage deed dated the 28th June, 1946 was illegal and not binding on the plaintiffs as the mortgage deed was executed after attachment before judgment was made in the aforesaid money suit 1 of 1945. The said suit ultimately abated as a whole on account of the death of Kamla Kant one of the plaintiffs. Appeal from the aforesaid order too was dismissed. The plaintiffs, therefore, filed the present suit, namely, title suit No. 281 of 1965 for redemption of the aforesaid mortgage bond. It has been pleaded in the plaint that the money covered by mortgage bond was tendered to the defendants who refused to accept the same. The particulars of the mortgage deed have been given in paragraph 7 of the plaint. The cause of action for the suit has been stated to have arisen on 28-6-1946 when the mortgage deed was executed and also on the 30th Jeth 1359 F. S. when the due date of payment expired and on the 15th Jeth, 1372 F. S. that is on 30-5-1965, when the money was tendered for the last time and refused by the defendants. With the aforesaid allegations the present suit had been filed.
4. The suit was contested by defendant No. 1 alone. He raised various legal objections including the question of limitation and bar of the suit under Order 22, Rule 9 of the Civil Procedure Code (hereinafter to be referred as the Code). It was also the defence that there was no attachment before judgment made of the property covered by the mortgage bond dated the 28th June, 1946 in money suit No. 1 of 1945 and that processes in the execution case and those of the suit were fraudulently suppressed. Tender of Zarpeshgi money as alleged in the plaint has also been denied. The further defence was that the previous suit filed by the plaintiffs was in fact a suit for declaration of title of the suit land and the suit having abated as a whole the present suit as filed by the plaintiffs was in fact a suit for declaration of title of the suit land and the suit having abated as a whole the present suit is not maintainable.
5. The trial Court found that the (processes in execution case No. 9 of 1946 were properly served and the plaintiffs obtained symbolical delivery of possession on 13-6-1947. It further found that the previous suit was a suit for declaration of title and recovery of possession and not merely to declare the mortgage deed in question to be invalid. It also found that as the mortgage deed in question was executed after service of attachment before judgment in'money suit No. 1 of 1945, the mortgagee did not acquire any interest in the suit and the decree-holders (plaintiffs) purchased the suit property free from in-cumbrance. It also found that the suit was barred under Order 22, Rule 9 of the Code. The other points were decided in favour of the plaintiffs. With the aforesaid findings the suit was dismissed as not maintainable. On appeal preferred by the plaintiffs before the lower appellate Court the only contention put forward by the plaintiff-appellants was that the suit was maintainable and the finding of the trial Court that it was barred under Order 22, Rule 9 of the Code is not correct. The lower appellate Court decided this point against the plaintiffs and dismissed the appeal. Hence the present second appeal.
6. Mr. Kailash Rai, learned counsel appearing on behalf of the appellants strenuously contended that the judgments of the Courts below are illegal and liable to be set aside as the defendants entered into possession under a void mortgage and after lapse of 12 years they prescribed the right of a mortgagee and therefore the plaintiffs were fully justified in filing the present suit for redemption. He further contended that the mortgage dated the 28th June, 1946 being void under Section 64 of the Code, the defendants prescribed the limited right of mortgagee as claimed by them under the aforesaid mortgage deed and thus the Courts below acted illegally in holding that the present suit was not maintainable in view of the provisions of Order 22, Rule 9 of the Code. Mr. Arun Chandra Mitra, learned counsel appearing on behalf of the respondent on the other hand vehemently contested the appeal by saying that this argument of Mr. Rai put forward before this Court is not covered by the pleading of the parties and it is completely a new argument put forward before this Court for the first time.
In order to appreciate the arguments raised by Mr. Kailash Rai it is necessary to read the plaint itself. The original plaint has been officially translated and a copy was made available to the learned counsel for each party. They have accepted the translation to be correct except that Mr. Rai has pointed out that in paragraph 5 for the words "null and void" the real words would be "invalid and illegal" which are correct translation of "Nezaiz wo Gair Kanuni". I accept this mistake pointed by Mr. Rai. I have already stated above the plaintiffs' case at the beginning of this judgment. The plaintiffs have stated in the plaint that they instituted money suit No. 1 of 1945 against Ramkhelawan Chamar and his sons and subsequently obtained a decree which was executed and the property mentioned in Schedule 1 of the plaint was purchased by them in auction sale on 6-1-1947 and thereafter they obtained delivery of possession. It is necessary to quote paragraphs 5, 7 and 10 of the plaint to appreciate the argument put forward by learned counsel for the appellants. They run as follows :
"Paragraph 5. At the time of delivery of possession the plaintiff came to know that Khelawan Chamar aforesaid executed a Zarpeshgi deed dated 28-6-1946 for Rs. 481/- in respect of the land mentioned in Schedule I the disputed land after attachment and before judgment in money suit No. 1 of 1945 and that in the said Zarpeshgi deed they left in deposit Rs. 300/- in respect of two other zerpeshgi deeds which were also executed after attachment and before judgment in money suit No. 1. By all means the zarpeshgi deed dated 28-6-1946 or the deeds left in deposit in the zarpeshgi deed sued upon are in fact null and ab initio void, which could not be binding on the plaintiffs in face of delivery of possession to the plaintiffs by virtue of auction sale. But T. S. No. 1 of 1957 was filed on behalf of the plaintiffs for setting illegality of the Zarpeshgi deed sued upon decided in the Court of the Munsif at Gopalganj and on account of death of Kamala Kant Mishra one of the plaintiffs the said suit was abated. Now by all means it is necessary for the plaintiffs to pay zarpeshgi amount to the defendants. The plaintiffs often tendered the amount to the defendants but the defendants refused to accept the zar-peshgi amount and they are not ready to redeem the deed."
"Paragraph 7. The details of the zar-peshgi deed sued upon are as follows :
(a) Name of the mortgagor; Khelawan Chamar.
(b) Name of the mortgagee, Pir Mohamed Mian "ancestor of defendants 1 to 8."
(c) Nature of document; Zarpeshgi deed.
(d) Amount of consideration Rupees 481/-."
"Paragraph 10. That the cause of action for this suit arose within the jurisdiction at mouza Bairagi Tola Tola Sona-garhwa, pergana Kauri, Thana Mirganj P. O. Radhaganj district Saran, on 28-6-1946, when the deed sued upon was executed and also on 30th Jeth, 1359, F. S. when the due date of payment expired and also on the 15th Jeth, 1372 F. S. i.e. on 30-5-1965 when money was tendered for the last time, and was refused (to except) the money was made bv the defendants (sic). Court-fee over Rs. (torn) being the amount of consideration of the zarpeshgi deeds and this is the value of the suit. The defendants are liable to pay mesne profits from the date of last tender, till the date of recovery of possession and which (mesne profit) shall be ascertained later on."
In the plaint it has further been stated that the due date for payment expired and the money was tendered to the defendants but they were not ready to accept the money. From the aforesaid contents of the plaint it is difficult to hold that the present plaint is a suit for redemption of the mortgage which has been prescribed by the defendants. There is no whisper within the four corners of the plaint that the defendants had prescribed the right of a mortgagee under a void mortgage by holding the property in question for more than 12 years and that after such prescriptive right was acquired that there was a tender of the mortgage money to the defendants. Mr. Kailash Rai has contended that it is actually the substance of the plaint which has to be looked into to find out the real nature of the suit and not the form of the plaint He has cited several decisions in respect of the aforesaid proposition of law.
I may refer to one of them, namely, in Kedar Lal Seal v. Hari Lal Seal, (AIR 1952 SC 47). The decision fully supports the law put forward by Mr. Rai. The said decision has held that it is actually the substance of the pleading that has to be seen and merely on technicality the plaint should not be thrown out however in-artistically the drafting might have been. This proposition of law has not been disputed by other side but the question is can a Court go beyond the case put forward in the plaint. The relevant paragraphs have been quoted above which show that the substance of the plaint was that it was not a suit for redemption of a mortgage prescribed by the defendants by holding for 12 years and asserting the right covered in the mortgage deed dated the 28th June, 1946. I have already stated that there is no whisper about such prescriptive right in the plaint.
The plaint in paragraph 7 specifically states the particulars of the mortgage bond wherein all particulars of the mortgage bond dated the 28th June, 1946 have been given. There is no whisper about the prescriptive mortgage. In paragraph 10 of the plaint where cause of action has been given there also nowhere it has been stated about the cause of action of a prescriptive mortgage. Thus in my opinion on reading the whole plaint and taking the substance of the plaint, I cannot but hold that the present suit is a simple suit for redemption of the mortgage bond dated the 28th June, 1946, full particulars of which have been given in paragraph 7 of the plaint. By no stretch of imagination it can be construed as a suit for redemption of a prescriptive mortgage as contended by Mr. Rai.
He further contended that a mortgagee under an invalid mortgage acquires a right by prescription by holding the said character for more than 12 years. This again nobody can possibly dispute and for this proposition no authority is needed. He has referred to the case of Sukra Oraon v. Jagat Mohan Singh, (AIR 1957 Pat 245) and Rupa Nonia v. Rambrich Pathak, (AIR 1959 Pat 164). This argument has been put forward on the supposition that the allegations made in the plaint disclose or make out in substance a case of redemption of a prescriptive mortgage right acquired by the defendants. I have already indicated above that the said argument on the construction of the plaint and taking the substance of it is not available to the appellants. Hence the proposition that the mortgagee under a void mortgage acquires a limited right of a mortgagee by prescription is of no avail to the appellants.
I may refer here to another decision cited by Mr. Rai in the case of Palania Pillai v. Amjath Ibrahim Rowther, (AIR 1942 Mad 622) (FB). It was a suit filed by a co-sharer of a Mohammadan family to recover possession of his share in the properties mortgaged by some of the co-sharers other than the plaintiffs. It was held in that case that the suit was barred under Article 144 of the Limitation Act at the end of 12 years from the date of the mortgage and possession of the mortgagee became adverse against the plaintiffs from the moment the mortgagee entered in possession and from the date of ouster to the knowledge of the plaintiff. How this case, I fail to understand, helps the appellants. This proposition does not arise on the facts and in the circumstances of the case and Mr. Mitra appearing for the respondents has not disputed this proposition of law.
7. During the course of argument Mr. Rai put forward another contention, namely, that the first suit which had abated could not be a bar to the maintainability of the present suit and Order 22, Rule 9 of the Code has no application. He contended that the first suit having abated the appellants were prevented for all times to come in future from saying that the mortgage dated the 28th June. 1946 was an invalid mortgage and therefore the present suit was maintainable.
His argument is based on the assumption that once the previous suit for declaration that zarpeshgi was illegal, having abated and thus dismissed, it should be taken that a judgment on merit has been delivered against the appellants in the said suit which has abated. But in my opinion merely because the suit abated it cannot be inferred from that fact alone that it should be taken to have been decided that the zarpeshgi was subsisting. Such an inference of decision on merits cannot be made and such a farfetched contention as put forward by Mr. Rai cannot be accepted. The effect of dismissal on the ground of abatement of the suit is that it precludes the plaintiffs or the appellants from instituting a fresh suit on the same cause of action. Mr. Rai cited the case of Thota China Subba Rao v. Mattapalli Raju, (AIR 1950 FC 1) wherein it has been decided :
"Unless the equity of redemption is so extinguished, a second suit for redemption by the mortgagor, if filed within the period of limitation, is not therefore, barred."
This case again has decided :
".....Provisions like Order 9, Rule 9 or Order 23, Rule 1, will not debar the mortgagor from filing a second suit because, as in a partition suit, the cause of action in a redemption suit is a recurring one. The cause of action in each successive action, until the right of redemption is extinguished or a suit for redemption is time barred, is a different one."
This proposition of law put forward in this case, in my opinion, is not available to the appellants because this question does not arise on the facts of this case. The other case cited is the case of Vallabh Das v. Dr. Madan Lal. (AIR 1970 SC 987), In this case the plaintiff sought to recover possession from a trespasser on the basis of his title but in the previous suit instituted by him he sought to enforce his right of partition and separate possession. The previous suit was withdrawn and a liberty was given by the Court to the plaintiff to file a fresh suit on the same cause of action on condition that he pays the defendant costs of the suit before instituting a fresh suit. Later the suit was filed without payment of any cost It was contended that the suit was not maintainable as the condition precedent imposed by the Court in the earlier suit was not complied with. In this circumstance it has been held inter alia :
".....We accept as correct the observation of Wallis. C. J., in Singareddi v. Subba Reddi, (ILR 39 Mad 987 = AIR 1917 Mad 512 (2)) (FB) that where the cause of action and the relief claimed in the second suit are not the same as the cause of action and relief claimed in tfie first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as the first suit"
The Supreme Court in this case thus upheld the decree passed in the suit by the Courts below. This case again has no application to the present case. It is well known that if the cause of action of the two suits is the same then certainly the second suit is not maintainable. But in the present case the argument that has been put forward by Mr. Rai before this Court is that the suit for redemption of prescriptive mortgage is based on the pleadings. This argument has no substance. If the said contention would have been accepted by me then no other question could have possibly arisen for the decision in the present appeal.
8. Mr. Arun Kumar Mitra, learned counsel appearing on behalf of the respendent has on the other hand contended that the argument put forward by Mr. Rai is not founded on the pleadings of the parties and that there was neither privity of contract nor privity of estate. His argument is that there was privity of contract because the mortgage was void and no contract came into existence between the parties. There was also no privity of estate because the property was purchased by the plaintiffs in auction sale free from incumbrance. He further contended that the parties deliberately fought out the case on the basis that the plaint had put forward a case of redemption of a mortgage bond dated the 28th June, 1946. The claim of redemption of prescriptive mortgage was never put forward. He has contended that the only remedy which was available to the plaintiffs was to bring a suit for declaration of title and recovery of possession within 12 years from the date when the sale became absolute under Article 138 of the Limitation Act, 1908 and in fact they availed of that remedy by filing title suit No. 1 of 1957. He contended that the said suit having abated the plaintiffs cannot turn round to blow hot and cold at the same time by alleging that the mortgage is a valid mortgage and therefore they are entitled to redeem the same.
In support of his contention he has relied upon a Bench decision of Madras High Court in Srinivasa Aiyangar v. Vellayan Ambalam, (AIR 1926 Mad 966). The facts in short of this case were that the property belong to one Venkata-ranganadha Naicker. It was sold : in Court auction in execution of a decree against him and was purchased by the predecessor in title of the appellant The sale was confirmed on the 14th of September 1891. The property was under attachment before the aforesaid sale and during the pendency of the said attachment it was mortgaged on the 15th of June 1891, by the aforesaid original owner of the property in favour of predecessor-in-interest of the defendant. The plaintiff appellant brought the suit of redemption of the said mortgage. It has been held in this case that the proper Article that was applicable was Article 138 of the Limitation Act and the suit having been filed beyond 12 years from the 15th of June, 1891, was barred by limitation. It further held :
"It has been seriously argued that inasmuch as the defendant claimed only a mortgagees's right, the appellant is entitled to redeem the property. This contention overlooks the fact that the defendant never claimed to be a mortgagee under the appellant. He no doubt claimed to be a mortgagee from the judgment-debtor. There is no privity of contract between the appellant and the defendant, and even though the defendant claims only a mortgagee's right that would not give the appellant a right to redeem the property. If the auction purchaser does not bring a suit for possession within 12 years, under Article 138, his suit for possession of the property purchased by him would be barred. The fact that the judgment-debtor has created a mortgage or leasehold right pending the attachment would not enure for the benefit of the auction purchaser who is entitled to get possession within 12 years of the sale under Article 138."
This decision quoted with approval Subba Reddi v Jayaramayya, (AIR 1923 Mad 659). In Subba Raddi v. Jayaramayya, Odgers, J. held :
".....a person who has purchased the property during attachment cannot apply to set aside the Court auction sale as the conveyance to him is void against the claims enforceable under the attachment. The principle of these decisions is that any private transfer of any title created by the judgment-debtor pending the attachment cannot in any way affect the right of the attaching creditor to have property sold and delivered free of the title created bv the judgment-debtor. The provisions of Section 64, Civil P. C. are clear in its terms and no one who gets a title from a judgment-debtor pending attachment can set up that title against the attaching creditor or the auction purchaser."
9. Thus in my opinion it has been rightly contended by learned counsel for the respondents that the aforesaid Madras decision in Srinivasa Aiyangar, AIR 1926 Mad 966 has full application to the present case and it has to be held that the present suit filed by the plaintiffs was not maintainable in law which was rightly decided by the Courts below. No other point was raised before me.
10. In the result, the appeal fails and is dismissed with costs.