Shri Om Parkash And Others vs Singh Ram And Others on 3 January, 2012

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Punjab-Haryana High Court

Shri Om Parkash And Others vs Singh Ram And Others on 3 January, 2012

1. Both the appeals are connected. RSA No.624 of 1980 is at the instance of the defendants against whom a suit for declaration has been decreed in reversal of the judgment of the trial Court dismissing the plaintiff's action. RSA No.1285 of 1980 is at instance of the plaintiff whose suit for declaration was dismissed by the trial Court and in an appeal, the trial Court's judgment was again confirmed. The plaintiff, whose suit was dismissed, is the appellant before this Court. The plaintiff in Civil Suit No.188 of 1973 is Munshi Ram, who claimed that the property of an extent of 224 kanals and 14 marlas comprised in Khewat and khatauni Nos.2/2 and 2/2/1 situate in Village Galoli, tehsil Jagadhri with specific Rectangle numbers, namely, 23, 24, 25, 33 and 34 belonged originally to the plaintiff's predecessor and had been the subject of two mortgages, namely, a mortgage in respect of khatta No.2 of an extent of 163 bighas and 13 biswas in favour of one Murali and the same being the subject of a sub mortgage in favour of Bhagirthi, the remaining half share already being in the ownership of the mortgagee herself. The appellant in RSA No.1285 of 1980 is the plaintiff, Ram Krishan who has sought for declaration that he is the RSA No.624 of 1980 (O&M) -3- owner in possession of the land, claiming the property on the same averments as the plaintiff in the other case as a representative in interest. The only difference is that the suit and appeal were both dismissed and the appeal has been filed by the plaintiff. The narration shall be from the facts which are the subject of adjudication in RSA 624 of 1980.

2. The plaintiff would seek for a declaration on the basis that the mortgages had been redeemed in the year 1930 and held in the possession of the plaintiff and the plaintiff would also contend that he had prescribed title to the property by adverse possession. There are defendants 1 to 28 (defendants 1 to 40 in the other suit) and there is no specific detail as to the respective claims of the defendants and how they have been joined together in the suit. The defendants denied the plaintiff's title to the property and further denied that there was any order by the Collector granting redemption in favour of the plaintiffs. The defendants, on the other hand, contended that the plaintiff had filed an application in the year 1954 before the Collector for redemption but it was dismissed on 31.12.1954. The dismissal had been on the basis that the case involved issues of title and, therefore, only the remedy must be before the Civil Court. The contention of the defendants was that the very fact that the defendants had filed an application for redemption before the Collector in the year 1954 would show that the alleged redemption in the year 1930 could not be correct. According to the RSA No.624 of 1980 (O&M) -4- defendants, there would have been no such necessity to apply for redemption afresh in the year 1954 if there had been a redemption ordered in the year 1930.

3. Before the trial Court, two documents had been put in evidence on the side of the plaintiff, namely, Ex.P-1 purported to the order of the Collector dated 11.03.1930 granting a right of possession to the plaintiff, and Ex.P-2 a copy of roznamcha dated 19.04.1930. The trial Court had observed that Ex.P-1 purported to be an extract of a register containing the details of the order which made reference to the fact that the original file had been destroyed on 31.05.1945. The order purported to make a reference to the entitlement of the mortgagor to take actual possession of the property after harvesting the rabi crop of 1930. The admissibility of the two documents had put to test before the trial Court and also made an issue of law in the appeals.

4. A copy filed of the copy of the extract cannot be taken as evidence. The trial Court found that the documents were not admissible. The appellate Court proceeded to take the documents as admissible and reversed the decision of the trial Court. This aspect need not detain us for long, for, it merely requires a reference to Section 63 of the Indian Evidence Act which defines secondary evidence. As per the said Section while a copy made from the original and compared with the original could be the secondary evidence, a copy from a copy does not fall within the definition. A RSA No.624 of 1980 (O&M) -5- copy made from the original by a mechanical process which in themselves ensured the accuracy of the copy and copies compared with such copies could also be the secondary evidence under Section 63(2). The comparison with the copy must be by a document shown to be a copy taken from the original. There is no such attempt at the trial and it shall not, therefore, be possible to contend that the property was redeemed in favour of the plaintiff in the year 1930 and held by the plaintiff to secure a suit for a declaration.

5. The suit for declaration itself has contested on the ground that a mere suit for a declaration is impermissible under Section 34 of the Specific Relief Act. If the contention of the plaintiff was that the plaintiffs had actually prescribed title to the property by adverse possession and he was being disturbed in the possession by any or all the defendants, there ought to have been an ancillary relief for injunction. If, on the other hand, it was admitted that the properties had been in possession of the defendants, the claim to adverse possession itself was not possible. I have already observed that it is not even clear from the pleadings or evidence as to how all the defendants were interested in the properties or the respective claims that they were making to secure an effective decree that is meaningful to the principal relief of declaration. Section 34 enacts that where the plaintiff is capable of asking an ancillary relief is bound to do so. The proviso to Section 34 that deals with discretion of Court as to the declaration of states that, "no RSA No.624 of 1980 (O&M) -6- Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so." If the plaintiff himself was prevaricating on the issue of whether the property had been redeemed and held in possession of the plaintiff and had not asked for either the relief of possession or the relief of injunction, then I am afraid, it shall not be possible to grant the relief of declaration as sought in the plaint. The plaintiff's suit of declaration ought to fail for this reason. The respective plaintiffs have sought for amendment of the plaint for redemption and recovery of possession in the appeals and the said applications have been directed to be taken up along with the appeals. Before taking up the tenability of the reliefs through the amendment, it becomes necessary to examine whether there is a sure proof that the mortgages were in respect of the property which are the subject matter of suits.

6. The trial Court also had to deal with the issue of whether there was any cogent proof of the identity of the property alleged to have been mortgaged and the property that had been described in suit. DW1 Naresh Kumar did not deny the suggestion at the time of trial that the property which had been allotted to the petitioner in the consolidation was in lieu of the land originally mortgaged with their predecessors. DW3-Shashi Kumar was reported to have positively stated that the land in suit had been mortgaged with Bhagirthi and the suit properties had been allotted to the plaintiff in lieu of the land RSA No.624 of 1980 (O&M) -7- which had been originally mortgaged. The trial Court had referred to documents Ex.P-4 and P-5 to affirm that the assertion made by the plaintiff that the properties had been originally mortgaged by the plaintiff's predecessor to the defendants' predecessors had been established. Having found that the property had been mortgaged, the Court found that the defendants had been shown to have been in possession of all the properties except for two fields, namely, in Khasra No.25, the claim to adverse possession by the plaintiff in the absence of such possession was, therefore, found to be untenable. While dealing with the issue of nature of right that the plaintiff held in respect of the property, the Court found Munshi Ram, who was 80 years old at the time when he was examined in Court on 19.07.1974 as PW-3 , had admitted that he was not aware when the mortgage amount was paid to Bhagirthi. PW1-Karta Ram, who was 84 years old on 21.04.1972, had also stated that the mortgage had been executed even before he had age of discretion. The trial Court reasoned that the mortgage must have been therefore executed more than 60 years before the institution of the suit itself and if the period of limitation of 30 years as prescribed under the Indian Limitation Act of 1963 was to be applied, the plaintiff had only 7 years' time for applying for redemption from the passing of the Act, as per section 30 of the Amending Act. The Court, therefore, found that the plaintiff cannot obtain even relief of redemption. RSA No.624 of 1980 (O&M) -8-

7. The defendants themselves were not prepared to go as far as to say that there had been no mortgage at all in respect of the property. Their contention was that the mortgage could not be said to have been redeemed and sought to contend that the subsequent order of the Collector dated 31.12.1954 proved that the alleged order of the year 1930 granting the right to the plaintiff's predecessor from the relief of redemption could not be true. The appellate Court found that the alleged order of the Collector dated 31.12.1954 itself had not been filed in Court but both parties admitted at the bar that there had been such a direction by the Collector that the rights of the parties must be secured only through Court. The appellate Court made a reference to Annexure P-3 which was a copy of the jamabandi for the year 1928-29 to say that Bhagirthi had been recorded as owner of only half share and the remaining half share in khata No.3 comprising of 196 bighas 1 biswa had been owned by Munshi Ram and Baru Ram. Although there was no specific proof of Annexure P-2, the Court relied on document Ex.D2 which was a certified copy of an application filed for redemption on 15.06.1954. Although it was stated in the written statement that an order had been passed on 31.12.1954, the said order itself had not been exhibited, but the statement was received as an admission that there yet another application for redemption filed and there had been also an observation directing the parties to resort to its civil action, though the appellate Court could not place reliance either on P-1 or RSA No.624 of 1980 (O&M) -9- P-2. It made reference to Annexures P-3 and P-7 which were copies of jamabandis and Annexures P-4 and P-5 which were copies of khatauni, showing the plaintiff to be the owner of the property. The appellate Court also referred to the evidence of PW1- Karta Ram, PW2-Lalla Ram and PW3-Munshi Ram. Referring to the consolidation proceedings under P-4 and P-5,the Court held that Ram Kishan son of Baru had been allotted 145 kanals 7 marlas of land and Munshi Ram had been allotted 224 kanals 14 marlas of land. The appellate Court proceeded to hold that even the claim for redemption was not barred since the suit had been instituted on 01.01.1971.

8. Before this Court, as observed already, applications for amendment of the plaints have been filed seeking for redemption and for possession of property. I directed the counsel for the defendants to make the submission also on the issue of maintainability of such an application. The learned senior counsel for the defendants, Shri Sarin, would refer to the decision of the Hon'ble Supreme Court in M/s Modi Spinning & Weaving Mills Co. Ltd. and another Versus M/s. Ladha Ram & Co.-AIR 1977 Supreme Court 680, which holds that the amendment introducing entirely a new case and seeking to displace the plaintiff completely from the admissions made by defendants in written statement, was liable to be rejected. The counsel would also rely on yet another judgment in Radhika Devi Versus Bajrangi Singh and others-AIR RSA No.624 of 1980 (O&M) - 10 - 1996 Supreme Court 2358, to contend that partition suit in which the defendant in the written statement had specially pleaded about gift deed made in his favour regarding the property in dispute, cannot be amended by including a prayer to claim that the gift deed had been obtained illegally and fraudulently, beyond the period of limitation. The defendant had acquired a right by the bar of limitation and if the amendment is allowed, it would defeat the right accrued in favour of the defendants. The counsel relies on yet another judgment of the Hon'ble Supreme Court in Tarlok Singh Versus Vijay Kumar Sabharwal-JT 1996(4) SC 245, where a suit which had been instituted for perpetual injunction, it was held that it could not later be amended seeking for a relief of specific performance of an agreement dated 21.12.1984, when on the day when the application was filed on 25.08.1989, more than 3 years had elapsed from the day when the agreement could be enforced.

9. In all the above cases cited, it could be noticed that an amendment which takes away a right that had accrued to a defendant by the bar of limitation had always been denied. In Radhika Devi's case (supra), the attempt of the plaintiff was to secure a declaration that a gift deed had been obtained by fraud. It was another way of seeking for cancellation of gift deed which was required to be done within 3 years from the date when the document was executed or when the fraud was known to the plaintiff. The reference to gift deed dated 28.07.1978 had been made in the statement on 15.06.1988. RSA No.624 of 1980 (O&M) - 11 - The application for amendment was made on 11.11.1991 that was also the period of 3 years from the time when the plaintiff knew about the alleged fraudulent gift deed. In Tarlok Singh's case (supra), the agreement to sale was said to have been executed on 21.11.1984 and the suit for perpetual injunction filed on 23.12.1987, the amendment for specific performance was sought through an application filed on 17.07.1989. The Court found that a prayer for amendment for specific performance more than 3 years from the time when there was refusal to execute the sale had expired by virtue of Article 54 of the Limitation Act.

10. In all cases the test would therefore be, if the suit were to be taken as instituted on the date when the amendment is brought for the particular relief which is sought and such a claim would be barred by limitation, then the amendment cannot be permitted. In this case, the trial Court found that the suit for declaration without a prayer for ancillary relief was not possible. The trial Court again found that the plaintiff cannot be permitted to redeem, even in the absence of any specific prayer, in view of the fact that more than 30 years had elapsed since the mortgage. If the suit were to be brought on the day when the amendment was sought, namely, in the year 1993 then the only issue is whether the suit for redemption could be said to be barred. A suit for declaration filed on the assumption that the mortgage had already been redeemed if it is dismissed finding that the mortgage was not redeemed cannot, in my view, bar a fresh RSA No.624 of 1980 (O&M) - 12 - institution. I would therefore allow the applications for amendment. There can never be a clog to the right of redemption. The counsel for the defendants however argues that even the details of mortgage are not set forth in the amended pleadings and it is, therefore, not possible to grant the relief to the plaintiffs. Order 34 sets out a particular form for giving details of the mortgage. The said details have not been given in the amendment.

11. A Full Bench of this Court has held in Ram Kishan Versus Sheo Ram, ILR (2008) 1 P&H 719 that the period of limitation cannot be counted for redemption from the date of usufructuary mortgage. This Court has in terms of the FB judgment and further reasoning in Ram Kumar and others Versus Mohinder and others in RSA No.2628 of 1982, decided on 08.11.2011, has held that the language employed in Article 61 of the Limitation Act is that the period will commence from the date when the right to seek for redemption accrues. The right cannot be denied so long as there is no decree of Court foreclosing the right of redemption or by the conduct of parties, the right of redemption itself is lost. In this case, the fact that the mortgagor is treating the mortgage as fully redeemed to seek for a declaration, cannot be taken as the starting point of limitation. The defendants have at all times been contending that the mortgage had not been ordered to be redeemed in the year 1930 and in the year 1954, when the plaintiff's predecessor had filed a petition for redemption before the Collector, there had been a RSA No.624 of 1980 (O&M) - 13 - direction for adjudication before a Civil Court. If the previous suit were to fail for a technical reason that the relief of declaration alone was not possible, the amendment though ordered would not secure to the plaintiff appropriate reliefs in the absence of specific details of the mortgage. In this case, Bhagirthi had already been owner of half the extent of the property in khata No.3 of an extent of 196 bighas and 1 biswa. It is not possible for me to correlate the property which the mortgagee had already owned in respect of half share and identify the properties which had been granted in lieu of the mortgagor's interest in the consolidation proceedings. The matter would require appropriate evidence for claiming the relief of redemption. The suits have been instituted in 1971, but it is not possible to allow for consideration of preliminary decree for redemption without the details of the mortgage with reference to the khasra numbers, the amount payable, the persons who are liable to account, etc. I have no alternative than to remand both the cases. The plaints shall be amended as prayed for and at the trial court, the plaintiffs shall also be permitted to bring the details of the mortgage as required under O.34 CPC. The defendants shall be allowed the permission to file additional written statements for the amended pleadings. Having regard to the fact that the suits were instituted 40 years back, the Court may consider if any of the formulations under Section 89 CPC would work to the benefit of the parties, and without wasting any further time, endeavour to secure the curtains RSA No.624 of 1980 (O&M) - 14 - down for the litigations within a 6 month period.

12. The decisions of the courts below are set aside and both the second appeals in RSA Nos.624 and 1285 of 1980 are allowed and remanded to the trial Courts to admit the amended pleadings, allow for additional statements, frame appropriate additional issues on the basis of additional pleadings and proceed to dispose of the cases in accordance with law, minding the observations and the directions contained in this judgment. The costs will abide by the ultimate decisions in the suits.

II. RSA No.2133 of 1992

13. The instant appeal is at the instance of the legal representatives of one of the defendants in the suit which has been disposed of in RSA No.624 of 1980. I have held that the property is capable of being redeemed by the plaintiff. The mortgagee,who files a suit for injunction denying the right of the plaintiff to redeem cannot secure a relief of injunction on such basis. The law of estoppel under Section 116 of the Evidence Act would bar the mortgagee or a person claiming under him from setting up an adverse claim to the mortgagor's right to redeem. The reliefs at his instance cannot therefore be granted. The appeal in RSA No.2133 of 1992 is consequently dismissed.

(K. KANNAN) JUDGE 03.01.2012 sanjeev

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