Himachal Pradesh High Court
Prem Singh vs Prakash Chand And Others ... on 21 September, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
RSA No.15 of 2004.
Judgment reserved on: 07.09.2016.
Date of decision: September, 21s t ,2016.
Prem Singh .....Defendant-Appellant.
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Versus
Prakash Chand and others .....Plaintiff-Respondents.
Coram
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The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No For the Appellant : Mr. Bhupender Gupta, Senior Advocate with Mr.Janesh Gupta, Advocate.
For the Respondents: Mr.Ajay Sharma, Advocate.
Tarlok Singh Chauhan, Judge.
This regular second appeal is directed against the judgment and decree dated 07.10.2003 passed by the learned Additional District Judge (I), Kangra at Dharamshala, in Civil Appeal No.3-D/2001, whereby he affirmed the judgment and decree dated 20.10.2000 passed by the learned Sub Judge-I, Dharamshala, in Civil Suit No.10/97, whereby the suit filed by the plaintiff came to be decreed.
2. The brief facts of the case as set up by the plaintiff/respondent (hereinafter referred to as the respondent) are that the respondent filed a suit for possession by way of redemption of mortgage of two houses single storeyed standing on the land comprised in Khata No.255 min, Khatauni No.340 min, Khasra Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 2 Nos.1009 and 1011, measuring 0-00-36 hects. and 0-00-35 hects. total area 0-00-71 hects. alongwith permanent prohibitory injunction .
restraining the defendants/appellant (hereinafter referred to as the appellant) from interfering in the land comprised in Khasra Nos.1010, 1012. It was averred that respondent was owner in possession of the land comprised in Khasra Nos.1010 and 1012 and on 19.03.1982 of through a writing, he mortgaged with possession the two houses standing in Khasra Nos.1009 and 1011 in favour of appellant for rt `2500/-. It was further averred that on 09.04.1983 the appellant further mortgaged with possession the aforesaid houses to proforma respondent No.2 and the same are now in possession of proforma respondent No.2, who himself resides therein alongwith his family. It was further pleaded that the respondent, who wanted to redeem the mortgage and get back possession of his houses offered the mortgage amount of `2500/- to proforma respondent No.2 in December, 1996 and asked him to hand over the vacant possession of the houses to the respondent, but he flatly refused to do so. The appellant and proforma respondent No.2 never had anything to do with the land of Khasra Nos.
1010 and 1012, but after the respondent intended to redeem the mortgage, then they started interfering in the possession qua the aforesaid khasra numbers and threatened him with dire consequences, hence the suit was filed.
3. The suit was contested by appellant by filing written statement wherein preliminary objections qua maintainability, estoppel, limitation, partial redemption, valuation and non-joinder of necessary parties were taken. On merits, it was pleaded that the respondent is neither owner nor in possession of the suit property. The respondent's ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 3 right stood forfeited in favour of the State of H.P. as the respondent violated the terms and conditions of conferment of ownership rights in .
favour of the respondent as he had no authority to sell and mortgage the suit property. Appellant and respondent entered into an agreement regarding the suit property on 19.03.1982 whereby the respondent agreed to sell the suit property in favour of the appellant for of a total consideration of `2500/- and put the appellant in possession of the suit property. In fact in performance of the agreement, appellant rt had taken the possession of the suit property and in furtherance of agreement appellant paid the amount to the respondent and he agreed to execute the sale deed of the suit property in favour of appellant during the period of 10 years, as per the terms and conditions laid by the State of H.P. on the conferment of proprietary rights. After completion of 10 years, the respondent did not execute the sale deed despite repeated requests by the appellant to do so and the appellant was and is still ready to get the sale deed executed of the suit land from the respondent, but the respondent failed to perform his part. It was further pleaded that the possession of appellant is protected under Section 53-A of the Transfer of Property Act (for short 'Act') and the suit filed by the respondent is not maintainable. It was also pleaded that after execution of the said agreement, appellant inducted proforma respondent No.2 as a tenant of the suit land comprised in Khasra Nos.
1010 and 1012 in May, 1982 and since then proforma respondent No.2 has been cultivating the said land as a tenant and is in possession of the same. The appellant wanted to go to foreign country and was in need of money and, therefore, he obtained loan from proforma respondent No.2 to the tune of `7500/- with the stipulation of returning ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 4 the same alongwith interest. The appellant on 09.11.1983 also put proforma respondent No.2 in possession of the suit houses by getting .
`2500/- from proforma respondent No.2 with the condition that the said houses and land would be sold to proforma respondent No.2 and proforma respondent No.2 in part performance of the agreement took possession of the property in suit and in furtherance of the agreement of paid a sum of `2500/- to the appellant. It was lastly pleaded that the possession of proforma respondent No.2 is protected under Section rt 53-A of the Act. Proforma respondent No.2 is in lawful possession of the suit property. Rests of the contents were denied with the prayer that the suit be dismissed with costs.
4. Proforma respondent No.2 though filed separate written statement, but he has taken the same stand as that of the appellant.
5. The respondent filed replication wherein he denied the allegations of the appellant and proforma respondent No.2 made in the written statements and reiterated and reaffirmed the averments contained in the plaint.
6. On 11.08.1997, the learned trial Court framed the following issues:
"1. Whether the plaintiff is owner of land comprised in Khata No.226 min, Khatauni No.340 min, Khasra Nos. 1009, 1011, alongwith two houses standing thereon as alleged?OPP.
2. Whether the plaintiff is owner in possession of land comprised in Khata No.226 min, Khatauni No.340min, Khasra Nos. 1010 and 1012, as alleged? OPP.
3. Whether the plaintiff mortgaged the possession of two houses standing on Khasra Nos.1009 and 1011 to defendant No.1 for consideration of Rs.2500/-on 19-3-1982, as alleged? OPD.::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 5
4. Whether the plaintiff further mortgaged two houses situated at Khasra Nos. 1009, 1011 to defendant No.2, as alleged?
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OPP.
5. Whether the suit is not maintainable? OPD.
6. Whether the plaintiff is estopped by his own act and conduct to file the suit? OPD.
7. Whether the suit is time barred? OPD.
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8. Whether the suit is bad for partial redemption is not maintainable? OPD.
9. Whether the suit is not properly valued for the purposes of
10. rt court fee and jurisdiction? OPD.
Whether the suit is bad for non-joinder of necessary parties? OPD.
11. Whether the plaintiff rights of ownership stood forfeited to State of HP, as alleged? OPD.
12. Whether the plaintiff is agreed to sell the entire suit property vide agreement dated 19-3-1982 in favour of defendant No.1 for consideration of Rs.2500/- and put him in possession of the entire property, as alleged? OPD.
13. Whether the plaintiff has agreed to execute the sale of entire suit property in favour of the defendant No.1 at any time after the completion of 10 years as alleged? OPD.
14. If issue No.13 is proved in affirmative, whether the possession of the plaintiff is protected under Section 53-A of the Transfer of Property Act as alleged? OPD.
15. Whether the defendant No.1 inducted the defendant No.2 as tenant of the suit land comprised in Khasra No.1010 and 1012 in May, 1982 as alleged? OPD.
16. Whether the plaintiff has no locus standi to file the suit?
OPD-2.
17. Whether the defendants are in collusion with each other with the malafide intention of depriving the plaintiff of his right of ownership and possession over the suit property, as alleged? OPP.
18. Relief."::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 6
7. After recording the evidence and evaluating the same, the learned trial Court decreed the suit and the appeal filed against the .
same was also dismissed. It is against these concurrent findings recorded by both the learned Courts below that the instant appeal has been filed.
8. On 08.01.2004, the appeal was admitted on the following of substantial questions of law: -
"1. Whether both the Courts below have mis-interpreted the rt provisions of H.P. Tenancy and Land Reforms Act, Contract Act in holding exhibit PW1/A, the Agreement of sale to be illegal, null and void and not enforceable?
2. Whether both the Courts below have failed to properly appreciate the provisions of Section 53-A of the Transfer of Property Act, when it was duly established that the defendant/appellant entered into the possession of the suit property in part performance of agreement of sale?
3. Whether both the Courts below have acted beyond their jurisdiction in granting the decree of possession in favour of the plaintiff/respondent who claimed the property in suit to have been mortgaged with the defendant/appellant but failed to prove the same? Have not both the Courts below acted with material illegality and irregularity in granting the decree of possession for which there were neither proper pleadings nor proper evidence.
4. Whether both the Courts below have wrongly granted the decree of injunction in favour of the plaintiff by relying upon the revenue entries, which lost the presumption of truth on account of the document especially exhibit PW1/A, D2 and D3?
5. Whether both the Courts below have acted in a highly erroneous and perverse manner in not dismissing the suit of the plaintiff/respondent having been filed beyond the period of limitation? Are not the findings of both the Courts ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 7 below holding the suit to be within limitation illegal and erroneous."
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I have heard the learned counsel for the parties and gone through the records of the case.
9. Since all the aforesaid substantial questions of law are intrinsically interlinked and interconnected, therefore, they are taken up of together for consideration.
10. Section 113 of the H.P. Tenancy and Land Reforms Act rt reads thus:-
"113. Bar of transfer of ownership rights. -No land in respect of which proprietary rights have been acquired under this Chapter shall be transferred by sale, mortgage, gift or otherwise during a period of ten years by a person from the date he acquires proprietary rights:
[Provided that nothing contained in sub-section (1) shall apply to the transfer of land made for a productive purpose with the prior permission of the State Government in a prescribed manner.] Provided further that nothing in this sub-section shall apply to the land mortgaged with the Co-operative Societies established under the Himachal Pradesh Co-operative Societies Act, 1968, (3 of 1969), or with a [Bank].
(2) Any transfer of land made in contravention of sub-section (1) shall be void and no registering authority shall register any document evidencing such transfer under the Indian Registration Act, 1908."
11. It is evident from the aforesaid provisions that a person who has acquired proprietary rights in the land under the Act is barred from transferring the land within a period of 10 years. In case suc h land is transferred, then the transfer shall be void, unless such transfer falls under either of the proviso to sub-section (1) of Section 113 of the Act.
::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 812. It would be noticed that the appellant and respondent No.2 have been insisting that the document Ex.PW1/A dated 19.02.1982 .
executed by respondent No.1 is an agreement for the sale of houses situate over Khasra Nos.1009 and 1011 as also vacant land comprised in Khasra Nos.1010 and 1012. It is also their contention that respondent No.1 had been allotted the said property with the condition that of respondent No.1 shall not be entitled to transfer this property within a period of 10 years from the date of taking over the possession after its rt allotment and in the event of breach of any such condition, the land allotted is liable to be resumed by the State Government. It is further their contention that since respondent No.1 executed agreement within a period of 10 years, therefore, he had forfeited his ownership rights to the State and as a consequences thereof had no locus-standi to institute the instant suit as he had no subsisting title over the same.
13. On the other hand, it was the consistent case of respondent No.1 that he was a non-occupancy tenant and was occupying the suit property on the appointed day and has rightly acquired proprietary rights over the same.
14. It has come on record that respondent No.1 had constructed houses over Khasra Nos.1009 and 1011 while the remaining two khasra numbers were vacant. Respondent No.1 had mortgaged 'Malwa' of the houses situate over Khasra Nos.1009 and 1011 and had not mortgaged any portion of the land comprised in Khasra Nos.1010 and 1012 and, therefore, had instituted the suit for redemption.
15. It was vehemently argued by learned counsel for the appellant that Ex.PW1/A was an agreement to sell and respondent ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 9 No.1 was bound by it as they had been put in possession of the land and houses in Khasra Nos.1009 and 1011 in part performance of the .
agreement to sell Ex.PW1/A and the possession was also protected under Section 53-A of the Act.
16. In addition to the aforesaid, it is also argued that respondent No.1 was not competent to execute the document, of irrespective whether it is treated an agreement to sell or a mortgage or a mortgage deed.rt
17. In such circumstances, when the appellant himself claims the document to be null and void under Section 113 of the Act, obviously, then the same does not create any interest in favour of respondent No.1 so as to enable him to create third party rights. The necessary corollary and consequence is that no interest can be said to have been created either in favour of the appellant or respondent No.2.
After-all, a person can only transfer what he has acquired.
18. In taking this view, I am fortified by a decision rendered by this Court in Rattan Lal Mahajan versus Tulsi Ram and Ors., Latest HLJ 2001 (HP) 864 wherein it was held as under:-
"20. In view of the provisions of Section 113 ibid, a person who has acquired proprietary rights in the land under the H.P. Tenancy and Land Reforms Act is debarred from transferring the land for a period of ten years. In case such land is transferred, the transfer shall be void, unless such transfer falls under either of the provisos to, subject (1) of Section 113. It is not the case of the defendants that the agreement Ex.D-1 contemplates a transfer which is covered under either of the said two provisions. Therefore, the agreement to sell 1 biswa of suit land by the deceased to defendant No.1 being violative of the provisions of Section 113 is null and void.
21. The deceased being a tenant of the other half i.e. 1 biswa of the land agreed to be sold was legally not competent to sell or ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 10 to agree to sell it. The agreement Ex.D-1 thus is void in so far it provides for sale of the suit land by the deceased to defendant .
No.1. The doctrine of part performance cannot be availed of in respect of a transaction which is specifically barred by law and is null and void. To hold the contrary will mean to protect illegal possession on the basis of a void transaction and to nullify the provisions of Section 113 ibid."
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19. Evidently, there is no dispute that the suit property was owned by respondent No.1 as he earlier was a non-occupancy tenant rt and on coming into operation of the H.P. Tenancy and Land Reforms Act, 1972, had been conferred proprietary rights. It is also not in dispute that document Ex.PW1/A had been executed by respondent No.1 when the period of 10 years had not been completed and, therefore, he was debarred from executing the said document and the same was null and void. That being the admitted position, the possession of the appellant and respondent No.2 over any part of the suit land cannot be protected even by invoking the principles of part performance envisaged under Section 53-A of the Act as it is settled proposition of law that part performance cannot be availed of in respect of transaction which is specifically barred by law and is null and void. To hold the contrary would mean to protect the illegal possession on the basis of a void transaction and to nullify the provisions of Section 113 of the Act.
20. Once, this is the position, then no exception can be taken to the findings recorded by the learned Courts below as regards interpretation of the H.P. Tenancy and Land Reforms Act or the provisions of Indian Contract Act.
21. The document Ex.PW1/A is only a mortgage deed as is evident from the contents thereof and, therefore, no fault on this score ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 11 can be found with the judgments and decrees passed by the learned Courts below.
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22. As regards the ground of injunction, once the document in question i.e. Ex.PW1/A is held to be a deed of mortgage, then no exception can be taken to the judgments and decrees passed by the learned Courts below whereby they granted a decree of injunction in of favour of the respondent. As already observed above, the possession of the appellant was not protected under the provisions of Section rt 53-A of the Act as he had failed to prove the document Ex.PW1/A to be an agreement to sell and he being put in possession of the suit property in part performance thereof. As regards, the question that suit had been filed beyond the period of limitation, the said contention is equally without any force as not only the cause of action in favour of the respondent is continuing one, but that apart, once it is proved that the document Ex.PW1/A is not an agreement to sell, but is a mortgage deed, then obviously, the suit is within the prescribed period of limitation. Therefore, even on this score, the judgments and decrees passed by the learned Courts below are not open to question on the ground that the same are highly erroneous and the findings recorded concurrently are in any manner perverse.
23. However, there appears to be a major flaw in the judgments and decrees passed by the learned Courts below inasmuch as after declaring the deed to be a mortgage deed, a decree for redemption specifying the amount therein and other terms and conditions was required to be passed. However, both the decrees are silent on this aspect. In these circumstances, further question that falls ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 12 for consideration is as to whether a final decree for mortgage, especially, when the mortgage amount is admitted can be passed.
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24. The provisions contained in Order 34 Rules 7 and 8 of CPC contemplate a passing of preliminary decree first and final decree at a later stage and the purpose of this is to afford an opportunity to the mortgagor to deposit the mortgage amount due to the mortgagee. But, of in case where there is no dispute regarding the amount due to the mortgagee and the mortgagor infact is ready and willing to deposit the rt mortgage amount within the stipulated time, I see no reason why the Court cannot straightaway pass a final decree for redemption.
25. Identical issue came up for consideration before the Hon'ble Allahabad High Court in Ghulam Ashraf versus Abdul Khalik & Anr., AIR 2006 Allahabad 149 and it was held as under:-
"7. The question which requires consideration is what is nature of the decree passed by the trial court. The contention of the learned counsel of the judgment-debtor is that the aforesaid decree is in the nature of preliminary decree and as such is not executable. He has placed reliance upon certain decisions which will be considered at the appropriate place. Learned Counsel has assumed while making aforesaid submission that in every case of redemption of mortgage preliminary decree has necessarily to be passed. On this basis he has proceeded with the argument and has placed reliance upon Order 34, Rule 8, C.P.C. At this stage it is apt to consider the cases relied upon by the judgment-debtor. Reliance has been placed upon K.L. Selected Coal Concern v. S.K. Khan Sons and Company AIR 1971 SC 437. In this case the Supreme Court has held that the pleas regarding validity of the decree neither taken in the executing court nor before this Court, cannot be permitted to be raised before Supreme Court. It has no relavancy even remotely with the question raised in the present writ petition. The next case relied upon is Bashir Uddin v. B.R. Murlidhar, AIR 1987 Bombay 235 in this case the decree for partition was passed. It ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 13 was held that the decree involved therein was in the nature of preliminary decree and final decree as contemplated in Section .
46 was not passed. In this situation the High Court proceeded to decide the controversy. The main question involved therein was with regard to the question of limitation. This ruling also does not advance the contention of judgment debtor. Strong reliance has been placed upon the judgment of this Court in Awdhesh Singh v. II Additional District Judge, Deoria, 1996 A.C.W. 1444.
of In that case suit was for foreclosure of the mortgage. This case is also distinguishable on facts. In the case in hand the suit is for redemption of usufructuary mortgage at the instance of rt mortgagor. The decision in the case of Awdhesh Singh proceeded on the basis of provision contained in Order 34 Rule 2 C.P.C which deals with passing of the preliminary decree in suit for foreclosure.
8. Order 34 Rule 7(1)(c)(ii) is the relevant provision.
9. Coming to the facts of the present case on a bare perusal of the decree passed by the trial court it would be clear that only obligation of the plaintiff under decree was to deposit Rs.250/-
within the period of four months which the plaintiff (decree holder) did. It is not in dispute that the decree holder has not deposited the aforesaid amount within the aforesaid period. The court below has noticed the fact that the amount has been deposited by the plaintiff decree holder. The only objection at the instance of judgment debtor is that money has been deposited in the Court instead of paying it to the defendants. The Court below has rightly observed that it is open to the judgment debtor to withdraw the aforesaid amount. The decree also provides that no other sum is payable by either of the parties and interest amount on the mortgaged money stood satisfied by usufruct of the house. On the plain reading of the decree it cannot possibly be said that except deposit of Rs.250/- within period of four months anything more was required to be done either by the plaintiff decree holder or by the Court. On the deposit of the amount the defendant judgment- debtors were required to deliver back the house along with the documents relating to mortgage to the decree holder. However in case of failure of the plaintiff right was given to the defendant ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 14 judgment-debtor to apply for preparation of the final decree. Therefore it is clear that the decree passed by the trial court is in .
the nature of final decree so far as it concerns with the plaintiff decree holder.
10. Manika Chatti v. Kuppuswamy Asari AIR 1926 Madras 644, is the authority for provision that if the decree is really preliminary decree it would no doubt be necessary to have a of final decree before the application for execution of decree could be entertained. But it is not absolutely necessary that in every mortgage suit there should be a preliminary decree, before final rt decree is passed. It has placed reliance upon the earlier judgment of its own court reported in AIR 1924 Madras 645 (Siva) Subramania Pillai v. Rakhumuthu Mooppan.
11. The same High Court in Mari Mathu v. Aiyar Thurai AIR 1978 Madras 246, has held that the provision contained in Order 34, Rules 7, 8 and 9 contemplating passing of the preliminary decree first and final decree at a later stage are for the purposes of giving opportunity to mortgagor to deposit mortgaged amount due to the mortgagee. But in a case where there was no dispute regarding amount due to the mortgagee and the mortgagor had deposited the amount even at the time of filing suit, Court can straightaway pass decree for redemption.
12. In Mansa Rajayyan v. Jaib Haris AIR 1981 Kerala 135, it has been held that final decree may be passed straightaway without passing a preliminary decree. The passing of final decree without passing a preliminary decree will not make the decree null and void or inexecutable.
13. The up-shot of the above discussion is that whether the decree is preliminary or final in a suit for redemption of mortgage will depend upon the terms and conditions mentioned therein. In case where all the dispute between the parties with regard to payment of mortgaged money and interest accrued thereon is finally settled and no further accounting etc. is required to be done, such a decree would be final decree as it finally determines the right of the parties. Keeping this in mind if we examine the decree in question it is clear that the Court had ::: Downloaded on - 15/04/2017 21:16:28 :::HCHP 15 clarified the position that mortgagor (plaintiff) was required to deposit Rs.250/- within a period of four months. After fulfillment .
of the said condition the plaintiff (mortgagor) decree holder was entitled to recover possession of the mortgaged property, i.e., house in question. The judgment debtor, mortgagee is under obligation of the decree, is required to deliver the possession to the decree holder along with all the documents pertaining to the mortgage."
of The substantial questions of law, as aforesaid, are accordingly answered.
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26. In view of the aforesaid discussion, there is no merit in this appeal and the same is dismissed with the modification that respondent No.1 is held entitled to a decree for redemption provided he redeems the property and pays an amount of `2500/- on or before 31.12.2016 or else suit filed by him would be deemed to be dismissed as a result whereof the judgments and decrees passed by the learned Courts below would also be deemed to be set aside.
27. The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
September, 21s t , 2016. (Tarlok Singh Chauhan), (krt) Judge.
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