Punjab-Haryana High Court
Mehnga Singh And Ors. vs Gurdial Singh And Ors. on 13 August, 2003
Equivalent citations: AIR2004P&H93, AIR 2004 PUNJAB AND HARYANA 93, (2004) 1 CIVILCOURTC 525, (2004) 3 LANDLR 344, (2004) 1 RECCIVR 338
JUDGMENT M.M. Kumar, J.
1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-respondents being mortgagor of the suit land were entitled to possession of the same by redeeming it from the defendant-appellants, who were the mortgagees. The suit filed by the plaintiff-respondents has been held to be within the period of limitation because the same was filed within a period of seven years next after the commencement of the Limitation Act, 1963 (for brevity the 1963 Act). The suit could have been filed under Section 30 of the Act before 5-10-1970 because the Act has come into force on 5-10-1963 whereas the suit in fact was filed on 12-1-1967.
2. The plaintiff-respondents filed a suit for possession by way of redemption on payment of Rs. 7000/- in respect of the suit land. They alleged that one Jalmal Singh s/o Chhatar Singh, the predecessor in interest of the plaintiff-respondents had mortgaged his land measuring 159 Kanals 5 Marias being 5/12 share of the land out of the land measuring 382 Kanals 5 Marias situated in village Dhulchur, Tehsil Depalpur, Distt, Montgomery (Pakistan) in favour of Uttam Singh, Harcharan Singh, Bahadur Singh sons of Jawala Singh to the extent of 1/3rd share. The rest 2/3rd share was mortgaged to Lachman Singh and Sher Singh sons of Sada Singh vide registered sale deed dated 6-7-1928. The fact of mortgage was entered in mutation No. 32 on 3-8-1928 and the mutation was sanctioned on 19-9-1928 (to be referred as 1st mortgage). Jaimal Singh also mortgaged land measuring 158 Kanals 16 Marias being 5/12th share of the land in favour of one Guranditta s/o Chamba Ram for Rs. 3500/- vide Report No. 14 bn Roznamcha dated 14-9-1930. In respect of this mortgage mutation No. 49 was entered (to be referred as IInd mortgage). It has further been averred that before the partition and formation of Pakistan, mortgagor Jaimal Singh died. Plaintiff-respondents 1 to 31 are the legal representatives of Jaimal Singh as per the pedigree table given in the plaint.
3. According to the averments made by the mortgagor plaintiff-respondents, the original mortgagees in respect of the 1st mortgage were Uttam Singh, Bahadur Singh, Lachman Singh and Sher Singh. One or the other defendant-appellants are their legal heirs and as such they are standing in the shoes of the mortgagees. The IInd mortgage was executed in favour of one Guranditta on 14-9-1930. One or other defendant-appellants are his legal heirs and are representing his interest.
4. Further averments made by the plaintiff-respondents show that after partition they were allotted land in lieu of the land they left in Pakistan on the partition of the country vide allotment No. F4/292, 11/1 dated 7-10-1949 in respect of 1st mortgage. It is alleged that from the date of allotment defendant-appellants have been given the possession of the land as mortgagee. The suit land was allotted during the consolidation of holdings in the village Jiwan Arian. It is further averred that the heirs of the mortgagor Jaimal Singh partitioned their whole land which included the land mortgaged by them in Pakistan i.e. 1st mortgage. In accordance with the judgment of this Court given in Civil Writ Petition No. 509 of 1960, the shares of the plaintiff-respondents have been defined, which itself elaborate the share of the land allotted to them. Claiming that they are entitled to redeem the suit land covered by 1st mortgage on payment of Rs.7000/- being the mortgage money or any such other amount as the Court may fix. The plaintiff-respondents had requested the mortgagees defendant-appellants to deliver the possession after accepting the mortgaged amount. They having refused to do so which has resulted into filing of the suit.
5. The claim of the plaintiff-respondents was contested by the defendant-appellants by alleging that the land in dispute was mortgaged more than 60 years back in Pakistan and by efflux of time, the defendant-appellants have become owners of the suit land. According to the stand taken by them, it is claimed that Jaimal Singh or his heirs had no right or interest in the land covered by 1st mortgage situated in Pakistan. The plea of limitation has also been raised. The plea of estoppel in respect of Smt. Rajjo Bai plaintiff-respondent has also been raised on the ground that once she has failed to redeem the land under Section 4 of the Redemption of Mortgagees (Punjab) Act, 1913 (for short the 1913 Act), because her application was rejected on 9-11-1962 then no suit was competent by her.
6. On the basis of the pleadings of the parties, the following issues were framed by the trial Court, which read as under :--
" 1. Whether the suit is bad for misjoinder of parties and causes of action? OPD
2. Whether defendants No. 1 to 22 have become the owners of the land in dispute by lapse of time as pleaded in preliminary objection No. 2 of their written statement ? OPD.
3. Whether Jaimal Singh had mortgaged with possession 159 kanals 5 marlas of the land with Uttam Singh and others through a registered mortgagee deed dated 6-7-1928 as pleaded in paral of the plaint and if not what was the actual date of the mortgage and what is its effect ? OPP
4. Whether Jaimal Singh had mortgaged with possession land measuring 158 kanals 16 marlas in favour of Guranditta through report No. 14 dated 14-9-1930 as pleaded in para No. 1 of the plaint and if not what was the actual date of mortgage and what is its effect ? OPP.
5. Whether the plaintiffs and defendants No. 23 to 26 are the heirs and legal representatives of Jaimal Singh (deceased) mortgagor? OPP.
6. Whether the defendants No. 28 Smt. Rajjo Bai had moved an application under Section 4 of the redemption of mortgagees (Punjab) Act for the redemption of the land measuring 44 kanals 9 marlas as detailed in clause 9 of the heading of the plaint and that the same was rejected by the Revenue Assistant, Ferozepur on 9-11-1962. If so to what effect? OPD.
7. Relief."
7. On issue No. 1, the trial Court returned a finding against the defendant-appellants and held that one suit could be filed in respect of two transactions of the mortgagees. In respect of issues Nos. 2, 3 and 4, the findings of facts by the trial Court have also gone in favour of the plaintiff-respondents. In respect of the 1st mortgage no serious dispute was raised because the plaintiff-respondents have produced on record Ex.P-21, which is certified copy of mutation No. 49. The English version of the same has been taken on record as EX.P.21/T which clearly shows that vide registered mortgage dated 6-7-1928 Jaimal Singh had mortgaged his 5/12 share of land to the mortgagees defendant-appellants for a sum of Rs. 3500/-. This position in respect of the land covered by 1st mortgage was fairly conceded by the counsel for the defendant-appellants before the trial Court. In respect of the land mortgaged by IInd mortgage by virtue of report roznamcha No. 14 dated 14-9-1930, it has been found by the trial Court that there was no specific denial by the defendant-appellants to the report roznamcha No. 14 dated 14-9-1930 and proceeded to hold that the same stood admitted. Reliance was also placed on proviso to Rule 5 of Order 8 of the Code. The findings of the trial Court in this respect read as under :
"If his denial of a fact is not specific hut evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary, It is further held that under the proviso to Rule 5 of Order 8, CPC. the Court may, in its decretion. require any fact so admitted to be proved otherwise than by such admission. It is the categorical statement made by P.W. 1 Atma Singh. who had been examined when the ease was disposed of earlier by the Court of then learned Senior Sub Judge, that no other land had been mortgaged by Jaimal Singh with the defendants. The statement made by the witness relates to the land mortgaged in respect of which the entry in the roznamacha of the Patwari had been got effected. The statement made by the witness has not been challenged in the cross-examination. It is the categorical statement made by the plaintiff Jagtar Singh (P.W. 4) that his grand father Jaimal Singh mortgaged 158 kanals 16 marlas in favour of Guranditta son of Chamba Ram for Rs. 3500/- which was recorded in the rapat No. 14 of the Roznamcha Wakiati. The witness has also deposed about his brother Surain Singh having written letter to the Ministry of External Affairs Government of India for granting certified copy of rapat No. 14 of Roznacha Wakiat dated 14-9-1930 by the Patwari Circle Kila Diwan Singh, Tehsil Depalpur and his brother having received a letter from the Ministry of External Affairs, New Delhi dated 11-5-1984 mark 'A'. Needless to discuss the other part of the statement made by the witness with regard to the deposit of money for getting the copy of the document, it is suffice to note that time and again witness made mention about the rapt No. 14 of the Roznamcha Wakiati dated 14-9-1930 with reference to the land mortgaged by Jaimal Singh in favour of Guranditta but the witness has not been put any suggestion that Jaimal Singh had not mortgaged the land in favour of Gurandttta vide rapat No. 14 of Roznacha Wakiati dated 14-9-1930 and the land had been mortgaged much earlier there to on a particular date. month and year, in the absence of which, I find that the defendants cannot take any benefit of the evasive plea taken up by them that the land had been mortgaged more than 60 years back. Besides the statement made by P.W. 4 Jagtar Singh that the land had been mortgaged by Jaimal Singh vide rapat No. 14 of the Roznamcha Wakiati dated 14-9-1930, the plaintiffs have also examined Lal Chand P.W. 3 and it is the statement made by the witness that Jaimal Singh was known to him, his sister was married to Uttam Singh, Bahadur Singh and Harcharan Singh are said to be the brothers of Uttam Singh. About 17 years prior to the partition of the country, it is stated that Jaimal Singh had mortgaged land with Uttam Singh, Sher Singh, Lachman Singh and Guranditta for Rs. 3500/-. No cross-examination was addressed upon the witnesses and, therefore, taking the year of the mortgage 17 years back to the partition of the country it would relate to the year 1930. None of the defendants dared to step into the witness box to rebut the evidence led by the plaintiffs that a part of the suit land measuring 158 kanals 16 marlas being 5/12 share of the land measuring 382 kanals 5 marlas had been mortgaged by Jaimal Singh in favour of Guranditta son of Chamba Ram vide rapat No. 14 of Roznamcha Wakiati dated 14-9-1930 an to state that the same had been mortgaged earlier there to on a particular date, month and year in the absence of which I find that from the pleadings of the parties and by the evidence led by the plains tiffs it stands established that the suit land had been mortgaged by Jaimal Singh as alleged in the plaint."
8. As to whether the defendant-appellants have become owner by efflux of time or the suit was time barred, the trial Court reached the conclusion that initially a period of 60 years was provided for redeeming the suit land before the Limitation Act, 1963 (for brevity 'the 1963 Act') came into force. However, the period was reduced to 30 years by the 1963 Act. Under Section 30 of the Act, it is provided that in case the limitation period is less than the period of limitation prescribed by the old Act, the suit was required to be instituted within a period of five years nay seven years next after the commencement of the 1913 Act or within the period prescribed for such a suit under the old Act, whichever period expires earlier. The plaintiff-respondents were required to file the suit before 5-10-1968 nay 5-10-1970 because the Act came into force with effect from 5-10-1963. Therefore, the suit of the plaintiff-respondents was considered to be within time and the defendant-appellants were held not to have become owners of the suit land by efflux of time. On the issue of estoppel i.e. issue No. 5, it has been held that dismissal of such an application under Section 4 of the 1913 Act would not operate as res judicata. Reliance in this regard has been placed on a judgment of this Court in the case of Guraditta Singh v. Harbhajan Singh, 1974 Pun LJ 325.
9. The learned Additional District Judge affirmed all findings of facts recorded by the Civil Judge on all the issues. The views of the learned Additional District Judge with regard to admission of mortgage by the defendant appellants in their written statement, also the legal position under Section 58 of the Indian Evidence Act, 1872 (for brevity 1872 Act) and Order VIII. Rule 5 read as under:
"It is admitted that suit land in fact was allotted in lieu of the land left in Pakistan. Even counsel for defendant-appellants namely Sh. Hardial through recorded statement dated 27-1-1968 reported that appellants admitted the suit land was allotted in lieu of the land mortgaged after consolidation. Therefore, original issue No. 3 framed on 21-6-1967 as per that recorded statement of learned counsel for appellants was prayed to be decided in favour of respondents Nos. 1 to 20 and 13-A. In view of that admission suffered by learned counsel for appellants at Bar on 27-1-1968, certainly there remains no dispute that in fact suit land was allotted in consolidation in lieu of the land under mortgage with present appellants.
12. Undoubtedly perusal of para No. 1 of the original plaint reveals that as per original pleadings 317 kanals 12 marlas of land was mortgaged by Jaimal Singh and Guranditta to extent of 1/2 share but with Uttam Singh, Harcharan Singh, Bahadur Singh sons of Jawala Singh to extent of 1/6th share and with Lachman Singh, Sher Singh etc. to extent of 1/3rd share. However, after amendment of the plaint plea taken in para No. 1 of the plaint of the suit is that an area of 159 kanals 5 marlas was mortgaged on 6-7-1928 with Uttam Singh, Harcharan Singh, Bahadur Singh to extent of 1/3 share of 159 kanals 5 marlas and to extent of 2/3 share of this land in favour of Lachman Singh and Sher Singh. Flea of mortgage of 158 kanals 16 marlas of land with Guranditta son of Chamba Ram through entry of Report No. 14 in Roznamcha Wakiati dated 14-9-1930 is also taken. Thus as per pleadings for the second time the mortgage of 158 kanals 16 marlas of land took place. Even defendants Nos. 1 to 22 and present appellants have admitted In their written statement that transaction of mortgage of land took place twice in favour of named mortgagees. Simply in written statement it is claimed that dates or mortgages mentioned in the para are wrong and as such they are not admitted. When factum of taking place of mortgage of land by Jaimal Singh with above named mortgagees including Guranditta has been admitted, then certainly in view of this admitted fact no further evidence required in proof of fact that Jaimal Singh mortgaged the land. Besides as already referred above, there is no dispute regarding fact as per admission of learned counsel for appellants namely Sh. Hardial that the suit land in fact was allotted in lieu of the land put under mortgage by Jaimal Singh and as such it is obvious that in fact admissions made by present appellants proves the case of plaintiffs/respondents Nos. 1 to 20 and 13-A that in fact Jaimal Singh put the land under mortgage twice.
14. Perusal of Section 58 of the Indian Evidence Act reveals that admitted facts need not be proved. It is in the discretion of the Court to require a person to prove the admitted facts otherwise than by admission. Such proof of admitted facts is required only in case plea of fraud or coercion or of undue influence taken or there exits any other sufficient cause to call upon plaintiff to prove the admitted facts even. Those sufficient causes are not existing in the case before me particularly when no plea of fraud or of undue influence taken. Therefore, in view of Section 58 of Indian Evidence Act, admission of appellants in written statement itself is enough to prove that Jaimal Singh put his land under mortgage with mortgagees through two different transactions.
15. Even perusal of Order 8, Rule 5 CPC reveals that in case allegations levelled in the plaint not specifically denied or denial is not by necessary implications, then the Court can take the fact to be admitted. In the case before me also as plea taken in plaint regarding putting of land under mortgage twice has been specifically admitted in corresponding para of written statement and as such it is not essential to call upon plaintiffs/respondents Nos. 1 to 20 and 13-A to prove those facts. Appellants have not stated specifically in the written statement as to on which dates mortgages of these lands by Jaimal Singh took place. Mere denial of dates of mortgages without mentioning the particular dates of mortgages is an evasive denial. Rather this denial has been made just for sake of denial, otherwise appellants would have come up with the specific case as to on which particular dates the two transactions of mortgages took place. Evasive denial is prohibited under Order 8, Rule 4, CPC and as such denial of dates of mortgages is not enough to call upon plaintiffs to prove the dates of mortgages. When plaintiffs have specified the particular dates of mortgages, then defendants must have set up a specific case in rebuttal to that but that case is not put specifically."
1O. In respect of the land covered by 1st mortgage, the learned Additional District Judge also accepted the copy of mutation Ex.P-21 which is a certified copy of mutation issued by the Embassy of India at Islamabad as a proof of the fact that the land was mortgaged on 6-7-1928 vide registered mortgage deed and entry to that effect has been made in the register of mutation relating to village Dhul-Chur, Hadbast No. 34. Tehsil Dapalpur, Distt. Montgomery and same was included in Jamabandi for the year 1930-31. The Court also found that the aforementioned fact has been supported by other evidence and rejected the argument of the defendant-appellants disputing the date of the mortgage in the following words :--
"16. Sh. V.P. Arora, Advocate contends that as appellants have not admitted the dates of mortgages and as such that itself amounts to denial of the factum of mortgage of land, but that submission has no force particularly; when deed of mortgages to remain with appellants being mortgagees. Besides copy of mutation No. 32 sanctioned on 19-9-1928 produced on record as Ex.P-21 establishes that land measuring 159 kanals 5 marlas was mortgaged by Jaimal Singh with Uttam Singh, Lachman, Singh, Harcharan Singh etc. This copy of mutation Ex.P-21 is certified by the Embassy of India in Islamabad and as such this copy in view of Section 78(6) of Indian Evidence Act is admissible in evidence being a public document. This copy after being obtained from the legal keeper has been certified by the Indian Consulate or Diplomatic Agent and as such it being a public document of the Foreign country is admissible in evidence per se. On Ex.P-21, signatures of Consular agent Sh. K. Raghuraja, an employee in Embassy of India in Islamabad there and besides seal of the embassy is there and it is also attested and as such contents of Ex.P21 are enough to prove the mortgage of 159 kanals 5 marlas of land. Mark-A is the letter issued by Under Secretary in Ministry of External Affairs, New Delhi. This letter shows that embassy of India in Islamabad after obtaining copy of mutation No. 32 of Village Dhul Chuhar from Pakistan Government sent the same to Surain Singh who is grandson of original mortgagor Jaimal Singh. For receiving this copy of mutation No. 32 draft through Ex.P17 application, was sent by Surain Singh to First Secretary (Cons) Embassy in India in Islamabad. Contents of Mark-A in my view are admissible in evidence per se because provisions of Section 57(7) of Indian Evidence Act provides that Court can take judicial notice of the signatures of the person filling for the time being a public office in any State. Under Secretary in Ministry of External Affairs is also appointed after notification in the official Gazette and as such mark-A in view of the taking of the judicial notice can be read in evidence as an exhibit. So contents of Mark-A, which be read as exhibit in this appeal along with Ex.P17 and Ex.P21 establishes that in fact 159 kanals 5 marlas of land was mortgaged by Jaimal Singh in Pakistan. Besides oral testimony of P.W. 1 Atma Singh along with that of testimony of P.W. 4 and P.W. 3 also establishes the mortgage of this land. Defendants-appellants have not led any rebuttal evidence at all to these oral testimonies of PWs and as such these have to be taken as correct. Defendants/appellants have not examined even a single witness to rebut the oral and documentary evidence adduced by respondents/plaintiffs. As testimony of P.W. 4 and P.W. 3 regarding mortgage of this land is corroborated by contents of Ex.P21 and as factum of mortgaging of the land is admitted in written statement of appellants and as such all these circumstances enough to establish that in fact issue No. 3 has been rightly decided by the trial Court."
11. The learned Additional District Judge also relied upon the admission made by the defendant-appellants in their written statement in respect of the land covered by IInd mortgage in favour of Guranditta. The views of the Additional District Judge in this regard read as under :
"Learned counsel for the appellants by placing reliance on ratio of case "Sukhwant Rai v. Kalu Ram Khiali Ram, 1991 Pun LJ 591 : (AIR 1992 Pun] and Har 80) argues that in case there is absolute bar under Section 91 of Indian Evidence Act in production of oral evidence to prove that terms of a contract which has been reduced into writing and if the written contract is inadmissible in evidence, then suit to enforce the written contract must fail. The ratio of the cited authority in my view applicable only to the extent of Mark E being not proved cannot be read in evidence. In the reported case it was found that Hundis in question not proved and that is why decree on basis of Hundis was refused to be passed due to Hundis being inadmissible in evidence. In the case before me plaintiffs/respondents has succeeded In proving the contract of mortgage of land by Jaimal Singh in favour of Guranditta through the admission suffered by appellants in their written statement and as such that is enough to prove that in fact land was put under mortgage by Jaimal Singh with Guranditta. As there is specific admission in the written statement of appellants to the averments of plaint regarding mortgaging of 158 kanals 16 marlas of land, by Jaimal Singh in favour of Guranditta and as such in view of that admission is there on part of appellants in their written statement that Jaimal Singh mortgaged with possession 158 kanals 16 marlas of land. As admitted facts in view of Section 58 of Indian Evidence Act need not be proved and as such there is no necessity for the plaintiffs/respondents to adduce proof of documentary evidence qua this mortgage. Provisions of Section 58 of Indian Evidence Act are enacted with the object of doing away with the necessity of proving documents or facts admitted qua/which admission obtained and as such it was not essential for plaintiffs/respondents to prove the admitted facts again by getting produced the documentary evidence of mortgage deed or of authenticated copy of report Roznamcha. As defendants/appellants in their written statement itself admitted about the two transactions of mortgage and as such appellants in view of the rule of estoppel are debarred from claiming that in fact Jaimal Singh did not mortgage 158 kanals 16 marlas of land in favour of Guranditta."
12. The learned Additional District Judge also examined in detail the oral evidence by referring to the statements of P.W. 1, P.W. 3 and P.W. 4. Detailed reference has been made to the copies of Khatauni Istemal Ex.P-4 to Ex.P-12. The views of the Additional District Judge with regard to the Khatoni Istemal Ex.P-4 to Ex.P-12 read as under :--
"Besides perusal of Mark-D reveals that letter was written under signatures of Sh. V.K. Mankotia, Under Secretary (AP-C) in Ministry of External Affairs, Government of India to Surain Singh to the effect that copy of report No. 14 of Roznamcha Wakiati dated 14-9-1930 duly attested by Embassy of India at Islamabad is sent. If that be the position, then it is obvious that in fact entry of report No. 14 of Roznamcha Wakiati dated 14-9-1930 exists in Patwar Circle Killa Diwan Singh, Tehsil Dipalpur, Distt. Mont Gomery regarding the mortgaging of land by Jaimal Singh in favour of Guranditta. It is on account of this that in fact reference to the mortgages exists In copies of Khatoni Istemal produced on record as Ex.P4 to Ex.P-12. Besides existence of mortgage is a fact stated in copy of Sanad Allotment placed on record as Ex.P1. Even Hon'ble High Court of Punjab and Haryana while passing judgment on 21-3-1961 in C.W. No. 509 of 1960 directed Re-habilitation authorities to allot lands to heirs of Jaimal Singh in such a way that burden of mortgage of the land by Jaimal Singh is put in equal shares on all the seven sons of Jaimal Singh. Thus it is obvious that besides admission of appellants in their written statement, the above referred oral and documentary evidence also establishes factum of taking place of mortgage of land by Jaimal Singh in favour of Guranditta to extent of 158 kanals 16 marlas of land. Even if contents of Mar-E not taken into consideration. As it has not been disputed during course of arguments that in fact the suit land as carved out in lieu of the land put under mortgage by Jaimal Singh and as this land is more than the land measuring 159 Kanals 5 marlas and as such in view of the admission suffered by appellants in para Nos. 8 and 1 of their written statement, there is no escape from the conclusion that in fact land referred in issue No. 4 was put under mortgage by Jaimal Singh with Guranditta. It is on account of this that in para No. 1 of the written statement it has been specifically admitted that the area of the land referred in para no. 1 of the plaint in fact was put under mortgage through two transactions of mortgage. In response to para No. 8 of the plaint contents of this para of the plaint are admitted as correct in written statement dated 29-11-1996 of appellants and as such it is obvious that dispute is not raised at all that in fact the land mentioned in item (i) to (x) of the heading of the plaint was carved out after consolidation of holdings in village Jeewan Arain in lieu of the land which came in share of plaintiffs as per terms of the judgment delivered in C.W. No. 509 of 1960 of Hon'ble High Court. As defendants/appellants have not at all led any evidence to prove that mortgage of land referred in issue No. 4 did not take place in 1930 and as such reliance on testimonies of P.W. 1 and P.W. 4 in that respect has to be placed particularly when P.W. 1 claims that no other land was mortgaged by Jaimal Singh except the one which is the suit land. P.W. 1 claims to be present at the time of this mortgage and his assertion cannot be disbelieved particularly when age of P.W. 1 in 1930 was about 25 years. Records in India namely Khatoni Pamaish/Istemal or Jamabandi were prepared after consulting the corresponding records available in Pakistan before partition and as such in view of contents of Ex.P4 to Ex.P-12, there is no escape from the conclusion that in fact land for which the suit land is now carved out was mortgaged by Jaimal Singh with Guranditta as part of one of the transactions. As only entry in report Roznamcha made which as per P.W. 1 was not witnessed or attested by anybody and as such the mortgage was oral."
13. It is further appropriate to mention that there was no challenge to the findings recorded by the Civil Judge on issue No. 2 namely whether the defendant-appellants have become the owner of the land in dispute by lapse of time as pleaded in preliminary objection No. 2 of the written statement. The suit, therefore, was considered to have been filed with in the time prescribed by Section 30 of the Limitation Act, 1963.
14. The learned Additional District Judge also rejected the contention that no suit for partial redemption was maintainable holding that plaintiff-respondents were not seeking partial redemption but were claiming the redemption of the whole land. Therefore, it has held that the ratio of the judgments in the case of Smt. Surjit Kaur v. Kewal Singh, 1990 Pun LJ 597 : (AIR 1991 Punj and Har 205) and Chhagan Lal Keshav Lal Mehta v. Patel Narandas Haribhai, AIR 1982 SC 121 were not applicable.
15. The contention that dismissal of the application filed under Section 12 of the Redemption of Mortgagees (Punjab) Act, 1913 would not constitute the basis for applying the principles of res judicata has also been rejected by Additional District Judge because the bar created by Section 12 does not oust the jurisdiction of the Civil Court to entertain a civil suit for getting declared the rights of redemption. Even otherwise the procedure under Section 12 of the Act is summary. Reliance in this regard has been placed on the judgments of this Court in the cases of Kaka Singh v. Hazura Singh, 1982 Pun LJ 134 : (AIR 1983 Punj & Har 68), Tundal (deceased) now Rep. by his legal heirs v. Munshi, (1995) 3 Rec Rev R 408, Nikka Singh v. Darshan Singh, 1984 Punj LJ 33 : (AIR 1984 NOC (Punj & Har) 173) and Santokh Singh v. Banta Singh, 1996 Pun LJ 422.
16. Mr. Kavinder Chopra, learned senior counsel for the defendant-appellants has vehemently argued that the mortgage deed showing the date of mortgage to be 6-7-1928 has not been produced on record. The learned counsel has pointed out that Exhibit P-21 does not establish the date of mortgage to be 6-7-1928 and it cannot prove the aforementioned fact. According to the learned counsel Sub-section (6) of Section 78 of the 1872 Act or Sub-section (7) of Section 57 would not be attracted to prove the date of the execution of the mortgage deed. It has been urged that the admission of mortgage has been wrongly construed by the Courts below as an admission of the date of mortgage. He has also referred to the documents mark 'A' and mark 'E' to submit that no reliance could be placed on the marked documents unless those are proved in accordance with the mode of proof. The learned counsel has further urged that those documents do not satisfy the requirement of Subsection (6) of Section 78 of the 1872 Act. In support of his submission, the learned counsel has placed reliance on two judgments of this Court. Union of India v. Bakhshi Amrik Singh, AIR 1963 Punj & Har 104 and Chief Settlement Commissioner v. Lakha Singh, 1967 Cur LJ 836. Inviting the attention of the Court to the observations of the Lower Appellate Court in para 16 of its judgment, the learned counsel has argued that Sub-section (7) of Section 57 and under Sub-section (6) of Section 78 of the 1872 Act, the aforementioned documents have been wrongly read by the Courts below in evidence. The aforementioned submission has been made by the learned counsel with the object that the suit filed by the plaintiff according to him if the date of the mortgage is not proved then it is not possible to establish the date of commencement of the period of limitation. The learned counsel has further submitted that the trial Court has returned findings on issue No. 1 by holding that the suit was not bad for misjoinder of parties and clubbing of cause of actions, According to the learned counsel under Order 2, Rule 3, no joint cause of action has arisen out of the 1 st mortgage and IInd mortgage.
17. Another submission made by the learned counsel is that once the plaintiff-respondents have failed to establish the date of mortgage in respect of the land covered by -1st mortgage then it cannot be presumed that period of 60 years have expired and by efflux of time the defend ant-appellants have become the owner and, therefore, no decree for possession by way of redemption of mortgage could be passed by the Courts below, It has then been submitted that Section 59 of the Transfer of Property Act, 1882 (for brevity the 1882 Act) has been made applicable to the State of Punjab only on 1-11-1956 and has placed reliance on a Full Bench judgment of this Court in the case of Siri Chand v. Nathi, AIR 1983 Punj and Har 171 and a judgment of the Supreme Court in Sampuran Singh v. Niranjan Kaur, AIR 1999 SC 1047. The learned counsel on the basis of aforementioned provision as well as the judgments has argued that the period of limitation starts from the very first date of a valid mortgage unless it is shown that any other period is provided by the mortgage deed. It is still further submitted that the provision of 1882 Act would not apply to the mortgage deeds executed before 1-11-1956 because of 1882 Act has been extended to Punjab with effect from that date. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Sampuran Singh v. Niranjan Kaur, (1999) 13 Punj LJ 249.
18. Mr. Ashwani Chopra, learned senior counsel appearing for the plaintiff-respondents has vehemently argued that 1st mortgage has been proved by Exhibit P-21, which is an extract from the register of mutations relating to the village where the mortgage property was situated in Pakistan. He has placed on record English version of the aforementioned document which is marked as Ex. P-21/T and has drawn my attention to column No. 13, which incorporates an entry in respect of the land covered by 1 st mortgage. There is a registered mortgage deed dated 6-7-1928, which is executed for a consideration of Rs. 3500/-. He has also made a reference to the entries in column No. 15, wherein it is mentioned that Jaimal Singh. Predecessor-in-interest of one or the other plaintiff-respondents mortgaged 5/12 share of his land to Uttam Singh, Harcharan Singh, Bahadur Singh sons of Jawala Singh in equal shares i.e. to the extent of 1/3rd, Lachhman Singh, Sher Singh sons of Sada Singh in equal shares to the extent of 2/3rd. It has also been recorded that the possession of the land has been delivered to the mortgagees. The entry has been made by Lachhman Dass, Patwari on 31-8-1928. Thereafter, mutation has been sanctioned on 19-9-1928. The learned counsel has drawn my attention to the observation of the Lower Appellate Court in para 22 indicating that the finding on issue No. 2 has not even been challenged by the defendant-appellants and similarly findings on issue No. 5 were also not challenged. Under issue No. 2 onus was put on the defendant-appellants to prove as to whether they have become the owner of the land in dispute by lapse of time and the learned trial Court has returned the findings against them. The learned counsel has further pointed out that Exhibit P-1 dated 7-10-1949 is sanad of allotment in respect of the land covered by 1st mortgage and the IInd mortgage, which explains as to why joint suit has been filed by plaintiff-appellants in respect of both mortgagees. The shares of all the plaintiff-respondents are identified by this Court in CWP No. 509 of 1960 decided on 21-3-1961 as the consolidation has taken place.
19. Controverting the statements made by the defendant-appellants, the learned counsel has argued that in para No. 1 specific averments with regard to registration of mortgage deed were made in the plaint and the date of the mortgage given is 6-7-1928 and that of entry of mutation and sanction are 31-8-1928 and 19-9-1928 respectively. The learned counsel has also referred to paras Nos. 6, 7 and 8 of the plaint and also the reply submitted by the defendant-appellants in the corresponding paras. Supporting the findings that the reply was evasive and would be deemed to be admission in pursuance to Rule 5 of Order 8 of the Code, the learned counsel has drawn my attention to the averments made in para 1 of the written statement, wherein the averments made in para 1 of the plaint have not been controverted at all. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of Badat and Company, Bombay v. East India Trading Company, AIR 1964 SC 538 to argue that evasive replies are no replies in the eyes of law and would amount to admission. The learned counsel has then argued that under Section 30 of the Limitation Act, 1963 (for brevity the 1963 Act), the suit filed by the plaintiff-respondents on 12-1-1967 is within limitation of five years of coming into force of the Act, which was enacted on 5-10-1963. According to the learned counsel, the appeal is a frivolous piece of litigation and it deserves to be dismissed with heavy costs. It has then been submitted that the concurrent findings of facts recorded by the Courts below are not to be interfered with even if they are erroneous. In support of his submission, the learned counsel has placed reliance on the judgments of the Supreme Court in the case of Pakeerappa Raj and Seethamma Hengsu 'D' by L.Rs., (2001) 5 JT (SC) 537 and S.V.R. Mudaliar, (dead) by L.Rs. v. Mrs. Rajabu F. Buhari (dead) by L.Rs., (1995) 2 Rec Rev 401 : (AIR 1995 SC 1607). The learned coun-sel has also argued that even if the application for redemption of mortgage filed under Sections 11 and 12 of the 1913 Act was dismissed, the same would not bar the jurisdiction of the Civil Court. In this regard, he has placed reliance on a judgment of the Supreme Court in the cases of Harbans Singh v. Guranditta Singh, 199 I Pun LJ 31, Chamkaur Singh v. State of Punjab, 1991 Punj LJ 249 : (AIR 1991 Punj & Har 26); Youdhister v. Siri Ram, 1996 Pun LJ 411 and Nikka Singh v. Darshan Singh, 1984 Punj LJ 33 : (AIR 1984 NOC (Punj & Har) 173). He has further submitted that in respect of usufructuary mortgage, there is no time fixed for redemption and has relied on a judgment of the Supreme Court (Punjab and Haryana High Court) in the case of Tundal (deceased) now Rep. by his legal heirs v. Munshi, (1995) 3 Rec Rev R 408.
20. The learned counsel has lastly submitted that this Court in C.R. No. 865 of 1972 decided on 27-1-1976 has issued directions that the suit in respect of both the causes of action and the land covered by 1st mortgage, and IInd mortgage could be Jointly tried and the revision petition filed by the plaintiff-respondents was allowed on the ground that the material facts In support of redeeming the suit land are the same and the parties were also the same. It was further held that the allotment of the land was made by one sanad of allotment.
21. I have thoughtfully considered the rival contentions made by the counsel for the parties and am of the considered view that this appeal is devoid of any merit. A perusal of Exhibit P-21 makes it obvious that the land covered by 1st mortgage was subject-matter of registered mortgage deed dated 6-7-1928 for a consideration of a sum of Rs. 3500/-. The names of the mortgagees i.e. one or the other defendant--appellants/ their legal heirs have been mentioned. On 31-8-1928 mutation has been entered as is clear from column No. 15 of Exhibit P-21 and the same was sanctioned on 19-8-1928. According to the views of both the Courts below, there is presumption of truth in favour of an official document under Sub-section (6) of Section 78 because it is a public document coming from a foreign country i.e. Pakistan. A certified copy has been produced on record, which is signed by the Indian Consulate at Islamabad. The provisions of Sub-section (6) of Section 78 of the 1872 Act read as under :--
"78. Proof of other official documents.--
The following public documents may be proved as follows:--
(6) Public documents of any other class in a foreign country -- by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country."
22. A perusal of the above provision shows that the public document belonging to a foreign country can be proved by a copy certified by the legal keeper thereof with a certificate either of a Notary Public or an Indian Consul or a Diplomatic Agent. A perusal of Exhibit P-21/T would make it evident that it is authenticated by the stamp of the legal keeper of the record and the same is duly signed. It is further appropriate to mention that it is certified by the Indian Consulate at Islamabad. Therefore, the document fulfils the requirements of Section 78(6) of the 1872 Act.
23. It is also worthwhile to mention that this fact was not disputed by the defendant-appellants before the trial Court. A perusal of para 15 of the judgment of the learned Civil Judge would reveal that the counsel for the defendant-appellants has fairly stated at the bar that there was no dispute about the mortgage deed dated 6-7-1928. The observations of the learned Civil Judge read as under:--
"As regards the suit land measuring 159 kanals 5 marlas having been mortgaged by Jaimal Singh, Predecessor-in-interest of plaintiffs Nos. 1 to 6 in favour of Uttam Singh and others vide registered mortgage deed dated 6-7-1928, the learned counsel for the defendants fairly stated at the bar there is no dispute about the same particularly when the plaintiffs have produced on the file Ex. P-21, the copy of the mutation No. 32 sanctioned on 19-9-1928 but he contended that the evidence led by the plaintiffs with regard to land measuring 158 kanals 6 marlas having been mortgaged by Guran Ditta vide rapat No. 14 of the Roznamcha Wakiati dated 14-9-1930 is not admissible in evidence inasmuch as copy of the rapat roznamcha mark 'E' does not bear the certificates to be given by the legal keeper of the original document and the other certificate by the Consul General of the Foreign country. Annexure mark 'E' is copy of the Roznamcha Wakiati 1930-31 given by the Patwari Halqa Kila Diwan Singh, Tehsil Dipalpur, District Mont Gomery and that it does not bear the certificates to be given thereon as required under Section 78(6) of the Evidence Act. I fully endorse the view expressed by the learned counsel for the defendants but in view of the clear admission made by the defendants in the written statement with regard to the suit land having been mortgaged by Jaimal Singh, the plaintiffs were not obliged to lead any evidence to prove that the suit land had been mortgaged by virtue of the rapat roznamcha No. 14 dated 14-9-1930. On the other hand, the defendants have taken up the plea that Jaimal Singh had mortgaged separate parcels of the land but the dates of the mortgages mentioned in the plaint are wrong. They also took up the plea that the land in suit had been mortgaged more than 60 years back. The defendants have not taken any exception to the plea of the plaintiffs i.e. whether some other land than the land involved in the suit land had been mortgaged by Jaimal Singh and that the land had been mortgaged on a particular date month and the year. Moreover, it has been held in the case of the authority AIR 1964 SC 538, Badat and Co., Bombay v. East India Trading Co., by their Lordship of the Supreme Court that the written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance, if his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission it-self being proof, no other proof is necessary, it is further held that under the proviso to Rule 5 of Order 8, C.P.C. the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. It is the categorical statement made by PW-1 Atma Singh, who had been examined when the case was disposed of earlier by the Court of then learned Senior Sub-Judge, that no other land had been mortgaged by Jaimal Singh with the defendants.
The statement made by the witness relates to the land mortgages in respect of which the entry in the Roznarncha of the Patwari had been got effected. The statement made by the witness has not been challenged in the cross-examination. It is the categorical statement made by the plaintiff Jagtar Singh (PE4) that his grandfather Jaimal Singh mortgaged 158 kanals 16 marlas in favour of Guran Ditta son of Chamba Ram for Rs. 3500/- which was recorded in the rapat No. 14 of the Roznarncha Wakiati. The witness has also deposed about his brother Surain Singh having written letter to the Ministry of External Affairs, Government of India for granting certified copy of rapat No. 14 of Roznamcha Wakiati dated 14-9-1930 by the Patwari Circle Kila Diwan Singh, Tehsil Dipalpur and his brother having received a letter from the Ministry of External Affairs, New Delhi dated 11-5-1984 mark 'A'. Needless to discuss the other part of the statement made by the witness with regard to the deposit of money for getting the copy of the document, it is suffice to note that time and again witness made mention about the rapat No. 14 of the Roznamcha Wakiati dated 14-9-1930 with reference to the land mortgaged by Jaimal Singh in favour of Guran Ditta but the witness has not been put any suggestion that Jaimal Singh had not mortgaged the land in favour of Guran Ditta vide rapat No. 14 of Roznarncha Wakiat dated 14-9-1930 and the land had been mortgaged much earlier thereto on a particular date, month and year, in the absence of which I find that the defendants cannot take any benefit of the evasive plea taken up by them that the land had been mortgaged more than 68 years back. Besides the statement made by PW-4 Jagtar Singh that the land had been mortgaged by Jaimal Singh vide rapat No. 14 of the Roznamcha Wakiati dated 14-9-1930, the plaintiffs have also examined Lal Chand PW-3 and it is the statement made by the witness that Jaimal Singh was known to him, his sister was married to Uttam Singh, Bahadur Singh and Harcharan Singh are said to be the brothers of Uttam Singh. About 17 years prior to the partition of the country, it is stated that Jaimal Singh had mortgaged land with Uttam Singh, Sher Singh, Lachhman Singh and Guran Ditta for Rs. 3500/-. No cross-examination was addressed upon the witness and, therefore, taking the year of the mortgage 17 years back to the partition of the country it would relate to the year 1930. None of the defendants dared to step into the witness box to rebut the evidence led by the plaintiffs that, a part of the suit land measuring 158 kanals 16 marlas being 5/12 share of the land measuring 382 kanals 5 marlas had been mortgaged by Jaimal Singh in favour of Guran Ditta son of Chamba Ram vide rapat No. 14 of Roznarncha Wakiati dated 14-9-1930 and to state that the same had been mortgaged earlier thereto on a particular date, month and year, in the absence of which I find that from the pleadings of the parties and by the evidence led by the plaintiffs it stands established that the suit land had been mortgaged by Jaimal Singh as alleged in the plaint."
24. It is also pertinent to mention that specific averments were made in para 1 of the plaint by the plaintiff-respondents and the fact of mortgage along with the date was admitted. In para 7 of the written statement, an evasive reply has been given, which has been treated as admission by the Courts below on account of the provision of Order 8, Rule 5 of the Code. The provision of Order 8, Rule 5 reads as under :-
ORDER VIII "5. Specific denial.-- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to.be not admitted in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability.
Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission.
(2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved."
(3) In exercising its discretion under the proviso to Sub-rule (1) or under Sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced."
25. A perusal of Rule 5 shows that in cases an allegation of fact in the plaint has not been specifically denied or it has not been denied by necessary implications then such a fact must be taken as an admission. The proviso to Rule 5 confers a discretion on a Court to require a party to prove a fact despite such an admission. These provisions have been subject-matter of interpretation by the Supreme Court in numerous judgments. Reference may be made to the judgment of the Supreme Court in the case of Badat and Company, Bombay (AIR 1964 SC 538) (supra). The observations of their Lordships read as under (Para 11);--
"Rules 3, 4 and 5 of Order 8 of C.P.C. form an integrated Code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its non-compliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary. But under the proviso to Rule 5 the Court may, in its discretion, require any fact so admitted to be proved otherwise than by such admission. In the matter of mofussil pleadings, Courts presumably relying upon the said proviso, tolerated more laxity in the pleadings in the interest of justice. But on the Original Side of the Bombay High Court the pleadings are drafted by trained lawyers bestowing serious thought and with precision. In construing such pleadings the proviso can be invoked only in exceptional circumstances to prevent obvious injustice to a party or to relieve him from the results of an accidental slip or omission, but not to help a party who designedly made vague denials and thereafter sought to rely upon them for nonsuiting the plaintiff. The discretion under the proviso must be exercised by a Court having regard to the justice of a cause with particular reference to the nature of the parties, the standard of drafting obtaining in a locality and the traditions and conventions of a Court wherein such pleadings are filed."
26. Similar observations have been made in the case of Modula India v. Kamakshya Singh Deo, AIR 1989 SC 162.
27. Apart from the abovementioned reasons, both the Courts below have also held that the plaintiffs witnesses have not been cross-examined with regard to the date of execution of the mortgage deed and it is well settled that failure to cross-examination on a vital issue would also result into adverse inference against the defendant-appellants.
28. The suit of the plaintiff-respondents has been found to be within the period of limitation as it was filed on 12-1-1967 i.e. within the period of five years next after the commencement of the 1963 Act, which in fact commenced on 5-10-1963. Section 30 of the 1963 Act, which is relevant for this purpose reads as under :--
"30, Provision for suits, etc. for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908 -- Notwithstanding anything contained in this Act--
(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of seven years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier: Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act.
(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier."
29. A perusal of the aforementioned provision shows that in a case for which the period of limitation is shorter than the one prescribed by the Limitation Act, 1908, the same may be instituted Within a period of seven years next after the commencement of the Act, which came into force on 5-10-1963. Therefore, the plaintiff-respondents could have filed the suit before 5-10-1970.
30. It is well settled that there would be no res judicata in cases where an application for redemption of mortgage has been dismissed by the Collector under Sections 11 and 12 of the 1913 Act. This principle has been repeatedly reiterated by the Supreme Court in numerous judgments. Reference in this regard may be made to the judgment of the Supreme Court in Harbans Singh's case (1991 Pun LJ 31) (supra) and also the judgment of the Supreme Court in the case of Sheo Lal v. Sultan, (1969) 2 SCC 88 : (AIR 1971 SC 93).
31. It is well settled that this Court under Section 100 of the Code would not interfere in findings of facts unless there is error apparent on the face of record or the findings are based on no evidence so on and so forth. This Court would not enter into the domain of reappreciation of evidence for reaching a conclusion other than the one recorded by the Courts below. The Supreme Court has taken the aforementioned view in cases of Tirumala Tirupati Devasthanams v. K.M. Krishnaiah, (1998) 3 SCC 331 ; (AIR 1998 SC 1132); Satya Gupta v. Brijesh Kumar, (1998) 6 SCC 423; Chandrabhagabai v. Ramakrishna, (1998) 6 SCC 207; Ram Prasad Rajak v. Nand Kumar and Bros., (1998) 6 SCC 748 : (AIR 1998 SC 2730); M. G. Hegde v. Vasudev, (2000) 2 SCC 213; State of Rajasthan v. Harphool Singh (dead) through L.Rs., (2000) 5 SCC 652; M. Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar, (2000) 10 SCC 244; Baldyanath Bhattacharya v. S. Karmakar, (2000) 9 SCC 505; Manorama Thampuratti v. C.K. Sujatha Thampuratti, (2000) 9 SCC 233 : (AIR 2000 SC 3400) ; Chandragouda v. Shekharagouda S. Pittanagoudar, (2000) 10 SCC 617; Thimmalah v. Ningamma, (2000) 7 SCC 409 : (AIR 2000 SC 3529); Mohd. Abdul Muqtedar v. Sk. Fakruddin, (2000) 9 SCC 384; G. Thankamma Amma v. N. Raghava Kurup, (2000) 9 SCC 517 : (2000 AIR SCW 3134); Ananta Kalappa Jaratakhane v. Krishtappa, (2000) 9 SCC 735 : (2000 AIR SCW 1796); Kempaiah v. Doddanaraiah, (2000) 9 SCC 60 : (2000 AIR SCW 2666); Mohd. Hadi Hussain v. Abdul Hamid Choudhary, (2000) 10 SCC 248 and Ajit Chopra v. Sadhu Ram, (2000) 1 SCC 114 : (AIR 2000 SC 212).
32. For the reasons stated above, this appeal fails and the same is dismissed.