Himachal Pradesh High Court
Dalip Kumar And Others vs Des Raj And Others on 12 September, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA .
RSA No. 142 of 2006
Reserved on: 9.9.2019
Decided on : 12.9.2019
Dalip Kumar and others ...Appellants.
Versus
Des Raj and Others ....Respondents.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
r Yes.
Whether approved for reporting?1
For the Appellants: Mr. G.C Gupta, Sr. Advocate with Ms.
Meera Devi, Advocate.
For the Respondents: Mr. G.D Verma, Sr. Advocate with
Mr. B.C Verma, Advocate.
Sureshwar Thakur, Judge
The mortgagees/plaintiffs' suit, bearing No. 3211 of 99, for, rendition of a decree, for, foreclosure, visavis, the suit land, and, against the defendants, hence stood dismissed, by the learned Civil Judge (Junior Division), Court No. (V), Shimla, H.P. In an appeal bearing No. 114S/13 of 2005, as, carried therefrom by the aggrieved plaintiffs, hence, before the learned District Judge, Shimla, the latter Court hence 1 Whether reporters of the local papers may be allowed to see the judgment?
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dismissed, the, afore appeal, and, affirmed, the, verdict .
recorded, by, the learned trial Court.
2. The aggrieved therefrom, the, plaintiffs/appellants herein (for short "the plaintiffs/mortgagees"), through, the instant RSA preferred before this Court, hence strive, to, beget reversal, of, concurrently recorded verdicts, as, pronounced, by both, the learned Courts below.
3. The brief facts of the case are that Shri Matru was owner in possession of land of Khata Khatauni No. 2/2 and 3 situated in Mauja Bhariyal, Tehsil Kandaghat, District Koshitan (for short "the suit land"). He had mortgaged his share measuring 46 bighas with possession in favour of Sh.
Kanku and the same was redeemed by him vide mutation No. 141 dated 28.9.2006 BK. He also took possession of the mortgaged land. On same day, vide mutation No. 142 an area of 29 bighas was again mortgaged with possession in favour of Sh. Kanku by said owner Shri Mathru for a sum of Rs. 100/ the mortgagee Shri Kanku was put in possession. Shri Kanku ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...3...
on death was succeeded by his son Sh. Parsu who possessed .
the mortgaged land and he on death was succeeded by Ganga Ram alongwith Shri Ananat Ram and Shri Janki. As such, the plaintiffs are mortgagees in possession of the suit land since the date of mortgage 28.9.2006. The plaintiffs and their predecessorininterest, are, possessing the suit land. It has not been redeemed by the defendants, or, their predecessorin interest/mortgagor. Limitation to redeem has expired and defendants have lost right, title and interest in the suit land by way of efflux of time. Hence, the plaintiffs have become absolute owners in possession of the mortgaged suit land.
4. In their writtenstatements, the defendants/respondents herein (for short "defendants") raised objections qua estoppel, limitation, nonjoinder of necessary parties, act and conduct. The defendants/mortgagors, in, their pleadings averred that Shri Mathru had mortgaged 1/9th share with Sh. Kanku for Rs. 100/, however, possession of the mortgaged land was never delivered to Shri Kanku. Mortgage ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...4...
was without possession. Entire area of the land of Khasra No. .
243 remained in ownership and possession of the Shri Mathru.
Therefore, the plaintiffs never acquired right, title or interest over any portion of the suit land. They have not become owners by way of foreclosure. Shri Mathru during his lifetime has redeemed 1/9th share of the suit land by paying Rs. 100/ to Shri Parsu son of Shri Kanku.
5. In the replication, the plaintiffs have reiterated and reasserted the contents the facts enumerated in the plaint and have controverted that of the writtenstatement.
6. From the pleadings of the parties, the following issues were framed by the learned trial Court:
1. Whether the plaintiffs are entitled for the decree of foreclosure, as alleged? OPP
2. Whether the plaintiff is entitled for the relief of declaration, as prayed? OPP
3. Whether the suit is not maintainable? OPD
4. Whether the plaintiffs have no existing right title and interest over the suit land? OPD
5. Whether the plaintiffs are estopped by their acts, deeds and conduct? OPD ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...5...
6. Whether the suit is barred by limitation? OPD .
7. Whether the suit is bad for nonjoinder of necessary parties? OPD
8. Relief.
7. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court, dismissed the suit of the plaintiffs. In an appeal, preferred therefrom, by the aggrieved plaintiffs, before the learned First Appellate Court, the latter Court, hence, affirmed the findings recorded, by, the learned trial Court.
8. Now the plaintiffs have instituted the instant Regular Second Appeal before this Court, wherein, they assail the findings recorded, in the impugned verdicts, hence by both the learned Courts below. When the appeal came up for admission, on 30.3.2007, this Court, admitted the appeal, on, the hereinafter extracted substantial question, of law: "When the mortgage comes to an end by lapse of time can't the mortgagee seek a decree of foreclosure against the mortgagor who happens to be a debtor within the meaning of H.P Debt Reduction Act?"
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Substantial question of law:
.
9. Though the pleadings, cast in the plaint, are, candidly significatory, visavis, the factum, qua, an usufructuary mortgage being created, hence, by the predecessorininterest of the defendants, and, visavis, a portion of suit land, initially, visavis, one Kanku, (i) and upon the latter's demise, his, hence becoming succeeded by his successorsininterest, who are arrayed, as, plaintiffs. The afore admission in pleadings, do rear, an inference, qua, an usufructuary mortgage being created, visavis, the suit land,
(ii) and, though the afore factum, is denied, by the defendants, nonetheless, for, the afore denial being meted credence, enjoined reflections in support thereto, being also borne, in, the apposite revenue records. However, the revenue records, as, respectively borne in Ex.P1, to, Ex.P6, all carry candid reflections, visavis, both the mortgagees, and, the mortgagors, hence, holding joint possession, of, the mortgaged land.
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10. Since the afore reflections, as, cast in the afore .
exhibits, are, not strived to be rebutted, through cogent documentary evidence, (a) rather when the afore entries, as, respectively embodied, in, the afore exhibits, are made in concurrence, with, apposite therewith recorded mutations, and, with all respectively conveying qua the mortgagors concerned, creating a mortgage, visavis, his share in the joint land, and, when the entries with respect, to, hence both continuing, in, joint possession, of, the mortgaged land, as borne in the apposite jamabandies, respectively borne in Ex.
P5, and, in Ex. P6, exhibits whereof comprise(s), the, Jamabandi(s) appertaining, to, the year 198788, and, to the year 195253, (b) and, when since then, up to, the filing, of, the present suit, the afore reflections are not strived, to be scuttled, of their vigour, through, an appropriate motion being cast before the Civil Court concerned, (c) rather when the defendants mortgagors, in, their writtenstatement, contend that in the year 1970, the principal mortgage debt, being ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...8...
redeemed, and, hence thereat the mortgaged land, becoming .
free, from, all encumbrances, (d) hence thereupon, it is to be concluded qua the defendants acquiescing to the all reflections, borne in the jamabandi(s) appertaining to the year 195253, and, to the year 198788, wherein the mortgagors, and, the mortgagee, are, reflected to be jointly holding hence possession, of, the mortgaged land.
11. Since, in, the afore alluded documentary evidence, reflections are grossly amiss, visavis, the mortgaged land, being redeemed, in, the year 1970, thereupon the afore propagation, as, reared by the defendants rather wanes, (i) and, with rather even subsequent to the year 1970, hence, reflections being cast in the revenue records, especially, in Ex.
P5, exhibit whereof, is, the jamabandi appertaining to suit land, and, for the year 19871988, (ii), and, rather palpably connotative, visavis, the suit land being jointly possessed by the mortgagors, and, the mortgagees, and, when no cogent rebuttal evidence, hence, for displacing their vigour hence ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...9...
stands adduced, (iii) thereupon the afore reflections acquire .
vigour, and, it is to be concluded qua the mortgaged land, up to, the institution of the suit, rather remaining unredeemed by the defendants, upon, the latter liquidating the mortgage debt, visavis, the plaintiffs.
12. Even though, the defendants contest the validity, of, an entry occurring in the column of the possession, visa vis, the suit land, and ,borne in Ex. P7, exhibit whereof, is, the jamabandi appertaining to the year 199899, (i) wherein contrary, to, the prior thereto reflections, hence conveying, qua, the mortgagees, and, the mortgagors holding joint possession, of, the mortgaged land, rather, the mortgagees are shown to be holding exclusive possession of the mortgaged land. However, the afore challenge cannot galvanize, any, immense vigor, as, the afore remains unaided, by, the adduction, of, apposite khasra girdawari(s). The afore lack of vigor, being unmeteable, to, the reflections cast in Ex. P7, would also spark an inference, qua, vigour being also ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...10...
unmeteable, to, the reflections, as, cast therein, hence .
connotative, visavis, the exclusivity of possession, visavis, the mortgaged land, hence, of, the mortgagees. Conspicuously, when the requisite khasra girdwari(s) remained unadduced into evidence, thereupon it is to be concluded qua the defendants, rather withholding the afore apposite khasra girdawari(s), for, suppressing the material facts, as may be, borne therein, and, may be hence adversarial to the defendants/mortgagors, and, hence the afore entries, are, concluded, to be made, in consequence, to, the apposite therewith khasra girdawari(s), as, drawn, by the Halqua Patwari/kanungo concerned.
13. Be that as it may, the imminent fact(s), as, emerge from the afore discussion, is, qua, with the mortgaged land being classified as "Ghasni" in the revenue records, and the the mortgagor inducting therein, the, mortgagees concerned,
(a) and hence within the apposite entire share therein, of, the mortgagor therein, rather coming under a validly assigned ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...11...
possession, of, the predecessorininterest, of, the mortgagees.
.
Consequently, with the revenue records also withstanding, (a) the, pleadings, as, constituted in the plaint, qua, a mortgage with possession being created, visavis, the predecessorin interest of the plaintiffs, and, qua the mortgaged land, (b) and, also when the afore discussion, does forestall, the propagation, of, the defendants qua rather a mortgage without possession, being created, over the mortgaged land, (c) and, also qua, mortgage being created, not within, the, entire share of the mortgagor, in, the suit land, (d) rather it being created only within a part of his share, in, the suit land, thereupon the afore, leads to a concomitant deduction qua an usufructuary mortgage, visavis, the mortgaged land rather coming into existence.
14. However, the afore grant of, a, usufructuary mortgage, visavis, the mortgaged land, hence carrying the description, of, a "ghasni", though within, the ambit of Section 6 of the H.P Debt Reduction Act, provisions whereof, stand ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...12...
extracted hereinafter, purveys an untenable latitude, in time, .
to, the mortgagors hence, to, redeem, the, mortgaged land, (i) however, the afore unrestricted, and, untrammeled latitude, in time, is to be read, alongwith the right, of, a mortgagee, to, within the relevant provisions, of, the Transfer of Property Act, 1882, and, upon, failure of the mortgagor, to redeem, the mortgage debt, hence, institute a suit for foreclosure, (ii) however even though, an, indefeasible right, is, vested in the mortgagee, to, within, the apposite mandate, of, Section 61 of the Limitation Act, and, upon, nonpayment or nonliquidation of mortgage debt, visavis, him by the mortgagee, hence institute a suit, for, foreclosure of mortgage.
"Section 6 of H.P Debt Reduction Act, 1976 Notwithstanding the terms of any contract regarding the date or dates on which a debt shall become due, a suit to which this Act applies for the redemption of a mortgage or for accounts may be instituted by a debtor at any time after the commencement of this Act."
15. However, the afore right to sue, for, claiming hence rendition, of, a decree for foreclosure, visavis, the mortgaged, ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...13...
is, squarely, and, pointedly trammeled, and, restricted, upon, .
evident creation, of, a usufructuary mortgage, interse both,
(a) and, in the latter event, in, the face, of, trite expostulations, of, law, as, cast in a judgment reported in 2016 (1) Shim. LC 466, titled as Singh Ram (D) through LRs versus Sheo Ram and others, the relevant paragraphs, whereof 14 and 15, stand extracted hereinafter (b) expostulations whereof appertain, to, a special right, of, a usufructuary mortgagor, as reflected, in Section 62 of the Transfer of Property Act, and, also bestow, upon, an usufructuary mortgagor a right, to, recover possession of the mortgaged land, upon, his liquidating the mortgage money hence out of rent and profits, and, by payment(s) thereof, to the mortgagee, (c) , and, also appertain visavis, the apt prescribed period of limitation, existing in Article 61, of, the Schedule to the Limitation Act, hence, empowering the mortgagee to institute, a, suit for foreclosure, against, the mortgagor, rather within 30 years, period whereof, commencing from the creation, of, a mortgage, other ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...14...
than, except qua an usufructuary mortgage, (d) rather not ipso .
facto merely, on expiry of 30 years, from the date, of, creation, of, an usufructuary mortgage, enabling the mortgagee to make, a, espousal, for, rendition of a decree, for, foreclosure, visavis, the mortgaged suit land (e) rather the apt reckonable from r theto commencement, of, the afore period of limitation, becoming date, when, the appropriate appropriation(s), are made, by the usufructuary mortgagee hence towards settlement, of, the apt component of interest, and, visavis the principal mortgage debt, hence, from the profits, and, gains, as, derived therefrom.
"14. We need not multiply reference to other judgments. Reference to above judgments clearly spell out the reasons for conflicting views. In cases where distinction in usufructuary mortgagor's right under Section 62 of the T.P Act has been noted, right to redeem has been held t continue till the mortgage money is paid for which there is no time limit while in other cases right to redeem has been held t accrue don the date of mortgage resulting in extinguishment of right of redemption after 30 years.
15. We, thus hold that special right of usufructuary mortgagor under Section 62 of the T.P Act to recover possession commences in the manner ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...15...
specified therein, i.e. when mortgage money is paid out .
of rents and profits or partly out of rents and profits and partly by payment of deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly."
16. Be that as it may, the learned counsel, for the aggrieved plaintiffs, has yet proceeded, to, make, a, vehement contention, before this Court, by his making an allusion, to, the statutory postulations, as, engrafted in Section 58(d), of, the Transfer of the Property Act, mandate whereof stands extracted hereinafter, (i) and, contends that, since, the imperative statutory condition, as, borne therein, qua, there being a statutory necessity, of, an explicit or implied right, being bestowed, upon, the mortgagee, to, receive gains, and, profits, as, accruing, from, mortgaged land (ii), and, to, also appropriate the afore derived gains and profits, visavis, payment, of, the component of interest accrued, upon the mortgage money, and, visavis, the principal debt, rather not ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...16...
begetting their apt satiation hereat, (iii) and, the afore .
submission is anchored, upon, the mortgaged land, being classified as "ghasni", (iv) hence it being unamenable, for, the mortgagee to derive gains and profits, hence therefrom nor any opportunity being afforded, to, the mortgagees, to in the manner, postulated in the verdict recorded in Singh Ram's case (supra), hence, make apposite settlements rather towards liquidation, of, the mortgage debt, (v) and, thereafter, he makes, a, submission, that, hence the afore judgment supra, as, rendered by the Hon'ble Apex Court, remaining unattracted hereat, and, the institution of suit, for, foreclosure hence by the mortgagee, within 30 years, from, the creation, of, mortgage, being well constituted, and, it meriting, its, being decreed.
"Section 58(d) of the Transfer of property Act Usufructuary mortgage Where the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee and authorizes him to retain such possession until ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...17...
payment of the mortgagemoney, and to receive .
the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgagemoney, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee."
17. The afore submission, has, primafacie, some vigour, however, all its vigour is ripped apart, by the, imminent, and, evident fact (a) qua the description, of, the mortgaged land, as "Ghasni", though not bestowing, the afore settled leverage(s), visavis, the mortgagees, yet, the afore description of the land, in the revenue records, would scuttle, the plaintiffs espousal, only upon, evidence being adduced qua, since, the mortgagees, holding possession of the mortgaged land, hence, carrying the description of "Ghasni" rather the mortgagees hence since then up to now, not harvesting grass, as, grown thereon. However, the afore evidence is amiss, and, hence the afore grass grown, upon, the "ghasni", is, to be concluded to be harvested by the mortgagees. Nonetheless, though, the afore grass is usable as fodder, for, their cattle(s), ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...18...
and, when hence they may be baulked, to, from, its sale derive, .
any, profits, yet, evidence qua therewith, is amiss, (a) whereupon the mortgagees, are, concluded, to be deriving gains, and, profits, from the sale, of, grass growing, upon, the ghasni, (b) and, though, the apposite profits derived therefrom, by them, are enjoined, to to be, appropriated, settlement, of the apt component of interest, and, visavis, r visavis, payment of principal mortgage debt, (c) however, visavis the afore rather trite therewith evidence is amiss, (d) also, as, a corollary, when only upon, since maintenance, of, the afore accounts, and, upon 30 years hence elapsing therefrom rather becomes the apt commencing period of the prescribed period, of, limitation of 30 years, for, a claim, for, rendition, of, a decree for foreclosure, visavis, the mortgaged land, being espoused. In aftermath, the effect, of, nonmaintenance, of the requisite accounts, rather by the mortgagees, and, yet despite the mortgagees, deriving, profits from the apposite usufructuary mortgage created qua them, and visavis the ::: Downloaded on - 29/09/2019 04:17:54 :::HCHP ...19...
mortgaged land, renders the mere elapse of 30 years, since, .
the creation of an usufructuary mortgage, to, not constitute a valid ground visavis the mortgagees to hence claim rendition, of, a decree, for, foreclosure qua the mortgaged land, rather only from the period whereat they maintained the afore spoken accounts, hence empowers them, to, within 30 years elapsing therefrom, stake a claim of rendition, of, a decree for foreclosure qua the usufructuary mortgaged land.
18. In view of the above, there is no merit in the appeal, the same is accordingly dismissed. Impugned verdicts are maintained and affirmed. Substantial questions of law are answered accordingly. All pending applications stand disposed of accordingly. Records be sent back.
12th September, 2019 ( Sureshwar Thakur ),
(priti) Judge.
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