Patna High Court
Smt. Sona Devi vs Nagina Singh And Ors. on 20 March, 1996
Equivalent citations: AIR1997PAT67, AIR 1997 PATNA 67, (1996) 1 BLJ 799
JUDGMENT B.L. Yadav, J.
1. Whether the suit of the plaintiff-respondent was within time and whether Sections 91 and 92 of the Transfer of Property Act, 1882 (compendiously the Act) have been correctly interpreted and whether the judgment of the lower appellate court was consistent with the statutory requirements of Order 41 Rule 31 of the Code of Civil Procedure (for short the Code), if not, its effect, are the substantial questions of law involved in the present Second Appeal preferred by the Defendant-Appellant, under Section 100 of the Code of Civil Procedure, 1908 (compendiously the Code) in a suit for declaration of title and confirmation of possession.
2. The averments in the plaint were that the plaintiff-respondent was the owner of plot No. 4312 are 2 decimals, with house thereon pertaining to khata No. 1339 in Village Digha Bujurg, P. S. Digha, Patna. The property was usufructuarily mortgaged to Hussaini (P.W. 3) who came in possession but created a Sub-mortgage in favour of Sheo Pujan Rai (D.W. 1), who assigned his interest to Harbansh Rai by a registered deed dated 10-4-1974. Nagina Singh (Plaintiff No. 1) had been in need of money. He negotiated to sell the house to defendant No. 1 Smt. Sona Devi and executed an agreement for sale on 23-8-1973 for a sum of Rs. 9500/-, out of which an amount of Rs. 500/- was paid, whereas the balance was to be paid at the time of execution of the sale deed. But the plaintiff did not execute the sale deed even after notice being served. Ultimately a suit for specific performance of contract was filed and the same was decreed. She was directed to make payment of Rs. 7.000/ - within three months from the date of decree but she failed to carry out the direction of the court even after extended time and ultimately her prayer for extension of time to permit her to make the deposit of the sale consideration was rejected and even the Civil Revision by her in the High Court also met the same fate. But she continued in possession and the plaintiff-respondent has to file the present suit with the averments that Smt. Sona Devi, defendant had not been the purchaser. Her status was not more than a mortgagee. She did not accept the mortgage money nor vacated the possession. Consequently the plaintiff has no option but to file the present suit for declaration of title and confirmation of possession. But as the plaintiff was not in possession he must have brought the suit for possession.
3. Defendant No. 1 Smt. Sona Devi filed written statement with the averment that there was an agreement for sale of the suit property with Nagina Singh, the plaintiff and defendant paid a sum of Rs.500/- to the plaintiff, Nagina Singh. A sum of Rs. 2000/-was paid to Sheo Pujan Rai who was mortgagee at that time. Though she filed suit for specific performance of contract, but the sale deed could not be executed even after decretal of the suit as she failed to deposit the amount of sale consideration and the legal effect was that her suit for specific performance of contract stood rejected. But she continued in possession, otherwise than in accordance with law and till the suit was filed she remained in continuous adverse possession beyond the period of 12 years. Consequently the suit of the plaintiff was time barred. In pursuance of the agreement for sale her name was entered in the revenue papers including the State Sarista and she has been paying rent and was granted rent receipts. In this way she matured her right by adverse possession. The suit was liable to be dismissed.
4. The trial court by the decree dated 4-3-1992 dismissed the suit with cost. Against that the First Appeal was preferred by the plaintiff which was allowed.
5. During the pendency of the suit, however, the plaintiff has sold his interest to the vendees, who were ordered to be impleaded as parties but actually could not be impleaded for the fault either of the plaintiff-respondent or the vendees themselves.
6. An appeal, however, before the lower appellate court was filed by the plaintiff-respondent himself who has no interest in the properties after the execution of the sale deed and after the application for impleadment of the vendees has been allowed. But nevertheless even though this point was pressed before the lower court but the appeal by the plaintiff has been allowed by the decree dated 31-5-1994 passed by Shri B.N.P. Sinha, Additional District Judge-II, Patna (in T. A. No. 32/92).
7. Shri Krishna Prakash Sinha, learned Senior Counsel for the appellants, stranuously contended that even after decretal of the suit for specific performance of contract, the defendants-appellants could not deposit the amount as directed by the Court, even though time was extended but she continued in possession otherwise than in accordance with law, at least from the date of dismissal of the suit. The suit having been filed after 12 years from the date of her adverse possession, it is time barred. The provisions of Sections 91 and 92 of the Act were incorrectly interpreted and it was contended that the suit cannot be decreed on correct interpretation of Sections 91 and 92 of the Act. Smt. Sona Devi could not be subrogated. It was further contended that normally the interest created during the pendency of the suit remains effective subject to the decision of the suit. But as the vendees were ordered to be impleaded as parties in the trial court, in that event the vendor, the present plaintiff-respondent, Nagina Singh has no right left to file the appeal himself before the lower appellate court and the appeal was thus not maintainable and has illegally been allowed. Reliance was placed on Smt. Sarjug Devi v. Dulhin Kishori Kuer, AIR 1960 Patna 474.
8. Shri S. Asghar Hussain, learned senior counsel for the respondents refuted the submissions of the learned counsel for the appellant and urged that the suit was not time barred and on the correct interpretation of Sections 91 and 92 of the Act Smt. Sona Devi, Defendant-Appellant was subrogated and possession could not be adverse. Section 52 of the Act operates in a wide field and even after execution of the sale deed the plaintiff-respondent has rights and his appeal was maintainable before the lower appellate court and the same has been correctly allowed. Mr. Hussain leaned heavily on Ramkrishna Naidu v. Venkatasami Naidu, AIR 1945 Madras 175; Gudarmal v. Bansilal, AIR 1971 Rajasthan 175; Binanand Sawase v. Thuroo Mahto, AIR 1923 Patna 592.
9. Having evaluated the submissions of the parties points for determination are as to whether the suit was within time, and whether Sections 91 and 92 of the Act have been correctly interpreted and whether the plaintiff-respondent has got subsisting right to file an appeal before the lower appellate court.
10. As regards the first point as to whether the suit of the plaintiff-respondent was within time. On 23rd August, 1973 an agreement for sale was executed by Nagina Singh, plaintiff-respondent in favour of Smt. Sona Devi, defendant-appellant and Rs. 500/- was paid at the time of execution of Baibeyana and the remaining Rs. 9,000/ - was to be paid at the time of execution of the sale deed. 22-2-1974 was the date for execution of the sale deed by Nagina Singh in favour of the plaintiff but he did not appear even though stamp was purchased on 26-10-73 and sale deed was scribed on 25-1-74. Legal notice through registered post was sent by defendant-appellant through an advocate and served on the plaintiff. In the notice it was mentioned that she was ready and willing to perform her part of contract and that plaintiff-respondent must accept the amount and execute the sale deed. But the plaintiff did not do so and ultimately on 22-5-74 Title Suit No. 25/74 for specific performance of contract was filed by Smt. Sona Devi. That suit was decreed on 30-4-74. Three months' time was allowed for deposit of balance consideration amount The present defendant-appellant, who was plaintiff there, made an application on 3-9-75 for extension of time to deposit the balance of sale consideration. On 8-9-75 the application was allowed and time was extended up to 12-10-75. But again Sona Devi did not pay the amount and made another application on 11-11-75 for extension of time which was allowed on 22-11-75 to make payment up to 7-12-75 as the last chance nevertheless Smt. Sona Devi failed to make payment of balance amount and made another application on 8-12-75 for extension of time to make the deposit which was dismissed on 9-12-75. Thereafter a" Civil Revision No. 906 of 1976 was filed by her in the High Court but the same met the same fate on 18-11-76. Even though Smt. Sona Devi was delivered possession of the property prior to the execution of agreement for sale. But in any case, the suit filed by her for specific performance oi contract was dismissed as a consequence of her failure to make payment. Her possession at least from the date of the agreement for sale (23-8-73) was otherwise than in accordance with law. In the alternative even if it is assumed to be so from 9-12-75 last date when the application for extension of time was dismissed and her suit for specific performance of contract stood dismissed in consequence. She continued in adverse possession for more than 12 years. Title Suit No. 38/88 was filed on 3-5-1988.
11. I am of the view that nature of the possession of Smt. Sona Devi was certainly adverse. It is beyond doubt that adverse possession is essentially a hostile possession against the title of the true owner. It includes possession by a defendant in practical contravention of the plaintiffs right. Normally the defendant's adverse possession is referred when he is in exclusive possession with the intention to hold himself as the owner. To put it differently it is possession with animus to hold the property in the possessor's own right and against the right of the true owner. (See Sajjad Ali v. Shahid Ali, AIR 1950 All 316). It is possession hostile and exclusive (see H. M. Jain v. Md. Nazir, AIR 1973 Patna 92; Kunjamma Cicily v. Kasim Beevi, AIR 1969 Kerala 293 (FB)).
12. It would not be inapt to refer the classical requirement of adverse possession that it should be "NEC VI, NEC CLAM and NEC PRECARIO" which connotes that adverse possession should be peaceful, open and continuous. Such possession must be adequate in continuity, in publicity and with a view to show that his/her possession is adverse to the true owner, (see Secretary of State v. Debendra Lal Khan, (1933) LR 61 Ind App 78 : AIR 1934 PC 23); P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314).
13. In Phul Kumari Devi v. Shambhu Prasad Singh, AIR 1965 Patna 87, it was held by the Division Bench of this Court that in order to determine as to whether the possession of the defendant was adverse or not, the test to be applied is with reference to the animus of the parties. The intention of the parties is to be determined with reference to their acts or omission and conduct in relation to the property.
14. Coming to the next question as to whether Sections 91 and 92 of the Act have been correctly interpreted. Suffice it to say that Section 91 provides that apart from mortgagor other three types of persons namely, any person who has any interest, or charge upon, the property mortgaged etc. may also redeem the property. In my opinion, the interest which entitles a person to redeem {other than mortgagor) must be derived directly or indirectly from the mortgagor himself. In other words, a person may redeem the property only if he is affected by the mortgagee, and in case he/she is not affected then there is no occasion for redemption. There is no denying of the fact that Smt. Sona Devi has no interest in the equity of redemption. This Court in Smt. Sarjug Devi v. Dulhin Kishori Kuer, AIR 1960 Patna 474 (supra) held that where a person has no interest in the equity of redemption or the property mortgaged and pays the mortgage money, in that event he/she is a mere volunteer with no equity and cannot be subrogated to the rights of the mortgages. Much emphasis on behalf of the respondents was laid that Smt. Sona Devi, the appellant would be subrogated in view of Section 92 of the Act. But Smt. Sarjug Devi's case (supra) is complete answer to the respondent's submission. Apart from Section 92, there is no equitable right of subrogation. The next limb of the question was as to whether Smt. Sona Devi can be subrogated in place of the mortgagee. In common parlance the expression 'subrgation' means to substitute or to put in place of the mortgagee. In my opinion this Court has correctly held in Phul Kumari Devi v. Shambhu Prasad Singh (AIR 1965 Patna 87) (supra) that where a person has no interest under the equity of redemption but actually pays the mortgage money, in that event he/she cannot be subrogated.
15. The doctrine of subrogation is in fact equitable doctrine which existed even prior to 1st April, 1930 amendment. The right of one creditor to stand in the place of another comes under the technical head of subrogation which means nothing more than the substitution. It is a doctrine coming down from the Roman Law and also from Indian Jurisprudence. The essence of subrogation is that the party having interest in equity of redemption and pays off a mortgage, would become clothed with all the rights of the mortgagee.
16. Substantially subrogation is of two kinds; legal and conventional. Legal subrogation takes place when the mortgage debt is paid off by some person who has some interest to protect, whereas conventional subrogation takes place where a person pays of the debt has no interest to protect but he advances money under an agreement.
17. Section 92 is substantially a proviso to Section 91 of the Act. The lower appellate Court forgot to keep in mind the provision and failed to place a correct interpretation of Sections 91 and 92 of the Act.
18. As regards cases cited on behalf of the respondents, Ramkrishna Naidu v. Venkatasami Naidu, AIR 1945 Madras 175 (supra) is a case on different fact-situation. Discharge of mortage and execution of sale parts of same transaction were the material aspect in that case. The purchaser has legal interest. In the present case the appellant has no such legal interest rather she was just a volunteer.
19. In Gudarmal v. Banshilal, AIR 1971 Rajasthan 175 (supra) it was held that even the smallest interest in mortgaged property is sufficient to entitle a person to redeem mortgage. In the instant case the appellant was just a volunteer hence that case is besides the point.
20. In Binanand Sawase v. Thuroo Mahto, AIR 1923 Patna 592 (supra) it was held that where mortgages was in possession, trespass against mortgagor's interest must be known to mortgaor. In the instant case the facts were different. The appellant was not the mortgagee rather a volunteer and has filed the suit for specific performance of contract which was decreed but she could not pay the balance of the amount even after extended time and the suit was dismissed ultimately and she remained in possession over 12 years otherwise than in accordance with law and matured right by adverse possession. The present suit was time barred.
21. Reverting to the next point whether the lower appellate Court has rendered the judgment consistent with the provisions of Order 41, Rule 31 of the Code. In a judgment of reversal the finding recoded and the inference drawn and the reasons assigned by the trial Court must have been reversed by the lower appellate Court but the same was not: done. In view of the mandatory provision of Order 41, Rule 31 of the Code whenever the judgment of the lower appellate Court was a judgment of reversal it was the primary duty of the appellate Court while reversing the findings of the trial Court to consider the reasons given by the trial Court and those reasons must also be reversed. But the same was not done. The finding of the lower appellate Court is not binding on the Second Appellate Court. This itself is a substantial question of law to set aside the decree of the lower appellate Court (See S. V. R. Mudaliar v. Mrs. Rajabu F. Buhari, AIR 1995 SC 1607).
22. C.P.C. amendment of 1978 amended Section 100 of the Code. An appeal cannot be allowed unless the substantial questions of law are involved and they have been incorrectly decided. In the instant Second appeal all the questions of law are substantial questions of law and are involved.
23. In view of the premises aforesaid and applying the Aristotelian and Baconian methods of reasoning the present Second Appeal succeeds and the same is allowed. The decree of the lower appellate Court is set aside and that of the trial Court is restored. The suit of the plaintiff-respondent is dismissed with costs throughout.