Punjab-Haryana High Court
Sham Lal & Ors vs Union Of India & Ors on 3 July, 2012
Author: Jaswant Singh
Bench: Jaswant Singh
RSA No.1646 of 2012(O&M) #1#
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Date of Decision:-3rd July 2012
RSA No.1646 of 2012(O&M)
Sham Lal & Ors.
......Appellants.
Versus
Union of India & Ors.
......Respondents.
2
RSA No.2303 of 2012(O&M)
Hasmat.
......Appellant.
Versus
Tilak Raj & Ors.
......Respondents.
3
RSA No.2304 of 2012(O&M)
Sham Lal.
......Appellant.
Versus
Tilak Raj & Ors.
......Respondents.
4
RSA No.2305 of 2012(O&M)
Saraj & Ors.
......Appellants.
Versus
Tilak Raj & Ors.
......Respondents.
CORAM:- HON'BLE MR. JUSTICE JASWANT SINGH
Present:- Mr. Sandeep Khunger, Advocate for the appellants.
Mr. A.K. Chopra, Senior Advocate with
Mr. Harminder Singh, Advocate for respondents/Caveators.
***
RSA No.1646 of 2012(O&M) #2#
JASWANT SINGH, J.
C.M. No.4467-C of 2012 has been filed in RSA No.1646 of 2012 seeking condonation of 07 days delay in filing the present appeal.
For the reasons stated in the application the same is allowed and delay of 07 days in filing the present appeal is condoned.
C.M. No.6480-C of 2012 has been filed in RSA No.2303 of 2012 seeking condonation of 25 days delay in refiling the present appeal.
For the reasons stated in the application the same is allowed and delay of 25 days in refiling the present appeal is condoned.
C.M. No.6481-C of 2012 has been filed in RSA No.2303 of 2012 seeking condonation of 07 days delay in filing the present appeal.
For the reasons stated in the application the same is allowed and delay of 07 days in filing the present appeal is condoned.
C.M. No.6484-C of 2012 has been filed in RSA No.2304 of 2012 seeking condonation of 25 days delay in refiling the present appeal.
For the reasons stated in the application the same is allowed and delay of 25 days in refiling the present appeal is condoned.
C.M. No.6485-C of 2012 has been filed in RSA No.2304 of 2012 seeking condonation of 07 days delay in filing the present appeal.
For the reasons stated in the application the same is allowed and delay of 07 days in filing the present appeal is condoned.
C.M. No.6488-C of 2012 has been filed in RSA No.2305 of 2012 seeking condonation of 25 days delay in refiling the present appeal.
For the reasons stated in the application the same is allowed and delay of 25 days in refiling the present appeal is condoned.
RSA No.1646 of 2012(O&M) #3# C.M. No.6489-C of 2012 has been filed in RSA No.2305 of 2012 seeking condonation of 07 days delay in filing the present appeal.
For the reasons stated in the application the same is allowed and delay of 07 days in filing the present appeal is condoned. RSA No.1646 of 2012
This common judgment shall dispose of the aforementioned four appeals as the same involve common question of law and facts.
Succinctly put, the appellants Sham Lal etc had filed a civil suit for declaration bearing no.688 of 2006 to the effect that order dated 2.6.1999 passed by Sub Divisional Collector, Jalalabad regarding redemption of land in their possession is illegal and is against the provisions of Redemption of Mortgagees Act, as the time for redemption had already expired and Union of India had become the owners of the said land and the sale deeds dated 23.2.1999 and 8.4.1999 as well as mutations sanctioned in favour of private defendant nos.4 to 6 (Tilak Raj, Vikas Kr sons of Resham Lal & Mehar Chand)are illegal and liable to be set aside.
Three other civil suits were filed by the aforesaid private respondent nos.4 to 6 against the above mentioned appellants for possession regarding the suit property. Since respondent nos.4 to 6 are same in all the four appeals, therefore, they would be addressed as private respondents and the Union of India and the other official respondents shall be addressed as official respondents.
The learned trial Court after appreciating the evidence on record, dismissed the Civil Suit No.688 of 2006 and allowed the other three civil suits vide common judgment dated 09.11.2010. Against the said RSA No.1646 of 2012(O&M) #4# judgment and decree the appellants herein preferred four appeals and the same have also been dismissed vide common judgment 07.12.2011. Hence the present four regular second appeals.
Facts of all the cases are that Sham Lal(appellant no.1) is in possession of 10 Kanal 12 marla of land, Hashmat son of Ala Ditta (appellant no.2) is in possession of 15 Kanal 7 Marla of land and Saraj son of Bhuta along with Jina wife of Saraj(appellant nos.3 &4) are in possession of 2 kanal 8 marla of land(for the sake of deciding these RSAs they would be referred as the appellants hereinafter). These appellants were in possession of the above mentioned land which was originally owned by one Smt. Naraini, who in the year 1935-36 had mortgaged the said land with Nawab Shehbaz and Noor Mohd sons of Mohd. Baksh for a sum of Rs.600/, consequently whereby mutation no.64 dated 23.5.1937 was sanctioned. After partition of the country, mortgagees migrated to Pakistan and, therefore, Central Govt. acquired the mortgagee rights. In consolidation proceedings, new numbers were given and land in dispute became 37 kanal 7 marla. On 14.9.1959, Naraini gifted the suit land through registered gift deed in favour of Mohan Lal and Sohan Lal sons of Nagar Mal and mutation no.254 came to be sanctioned. Sohan Lal donee died and his inheritance devolved upon his widow Ram Piari, his daughters Janak Rani, Asha Rani, Surinder Kumari and sons Hira Lal, Ravinder Kumar and Som Parkash. The same was thereafter recorded in the jamabandi for the year 1971-72 and thus the LRs of Sohan Lal were officially entered in the revenue records to be owners. Mohan Lal, the other donee also died on 8.4.1975 and mutation no.404 of his inheritance was sanctioned on RSA No.1646 of 2012(O&M) #5# 28.11.1978 in favour of Smt. Bhoola @ Leelawanti. On 23.02.1999 and 8.4.1999 the above mentioned Ram Piari etc and Bhoola @ Leelawanti executed two sale deeds in favour of private respondents. On 2.6.1999 these private respondents got the land redeemed from the collector, Jalalabad vide order of redemption dated 2.6.1999 and consequently mutation no.670 was sanctioned in their favour and it is on basis of this mutation and the order of collector that the private respondents are claiming themselves to be owners of the property in dispute. Now the appellants/plaintiffs have challenged this order of redemption through civil suit no.688 of 2006 by stating that the same is illegal, null and void and not binding upon them, for the reason that the Central Govt. is to be declared the owner of the property after the country was partitioned and the gift deeds as alleged are of no consequence in the eyes of law. Thus, it was stated that the land could not be validly redeemed by the private respondents and the order dated 2.6.1999 be declared null and void. On the other hand three civil suits for possession have been filed on the basis of this order of redemption by private respondents and it has been prayed that since the appellants are trespassers, therefore, the suit for possession be decreed.
All the four civil suits were consolidated together by the learned trial Court and the evidence was led in the civil suit no.688 RBT of 2006 titled Sham Lal etc. Vs. Union of India etc. The learned trial Court after appreciating the evidence on record dismissed the suit of the appellants. The other three civil suits for possession filed by the private respondents against the appellants according to their share were decreed to RSA No.1646 of 2012(O&M) #6# the extent to which the appellants held possession. In the first appeal, the findings of the learned trial Court in all the four civil suits was affirmed. Hence the present RSA has arisen. The RSA No.1646 of 2012 arises from the civil suit filed by the appellants and the remaining three RSAs have arisen out of the civil suits filed by the private respondents which have been decreed by both the courts below.
I have heard learned Counsel for both the parties and have perused the record carefully with their able assistance.
Learned Counsel for the appellants has argued that the present suit filed by the appellant deserves to be decreed because the land of Smt. Naraini was never redeemed either by her or by any person/representative of Smt. Naraini within period of 30 years from the date of mortgage and as such, the Central Government has become the owner of the land and the mortgagee rights were taken over automatically by the Central Government after migration of Muslims during partition. In support of his contention, learned Counsel for the appellant has relied upon Article 61 of the Limitation Act which states that the limitation to redeem the land that has been mortgaged is 30 years. He has further argued that both the courts below have wrongly relied upon the judgment titled as Ram Kishan & Ors Vs. Sheo Ram & Ors. 2008(1) RCR (Civil) 334 by contending that the said case was applicable to a usufructuary mortgage. However, the present case does not fall under the said category. Learned Counsel for the appellant has further contended that both the courts below have wrongly held that the gift deed and the sale deeds have been proved on record, without appreciating the fact that the same were only tendered into evidence RSA No.1646 of 2012(O&M) #7# and not proved as per the provisions of Section 68 of the Indian Evidence Act. To support his contention learned Counsel for the appellant has relied upon Narinder Nath Kapoor Vs. Prem Nath Khanna and Ors. 2009(4) RCR (Civil) 515. Learned Counsel for the appellant has finally argued that no reliance can be placed upon the findings given by the civil courts in a suit for permanent injunction in which the appellants were declared to be trespassers. The findings in a suit for permanent injunction are obiter dicta, therefore, the same cannot be taken against the appellants.
On the other hand, learned Counsel for the private respondents has vehemently argued that both the courts below have rightly dismissed the suit of the appellant and decreed the suit of the private respondents as the suit land was rightly redeemed by them from the Central Government, as it is the Central Government who had become a mortgagee after the partition. Since the property was validly purchased through two sale deeds from the rightful owners of the property, therefore, the present appeal is nothing but an abuse of process of law. It was further contended that prior to filing of this suit, Sham Lal etc(appellants) had filed three suits for declaration by alleging that they were owners in possession of their respective land and the mutations on the basis of sale deed in favour of private respondents and mutation regarding redemption were illegal, void, ineffective against their rights and for permanent injunction for interfering in their possession. All the three civil suits were dismissed by the trial court vide judgment and decree dated 22.2.2002 and the said judgment and decrees have already been exhibited as Ex.P-11 to Ex.P-16. It was further contended that against the said judgment and decrees Ex.P-11 to Ex.P-16, the appellants had filed RSA No.1646 of 2012(O&M) #8# three appeals which were partly allowed by the first appellate court vide judgment and decree dated 28.02.2003 whereby the relief of injunction was granted against the private respondents from interfering in their possession. The said judgments and decrees are also on record as Ex.P-17, Ex.P-18, Ex.P-20, Ex.P-21, Ex.P-23 and Ex.P-24. The learned Counsel for the private respondents has argued that against the three above mentioned appeals, the appellants herein had preferred regular second appeals as well before this Court and the same were also disposed of vide order dated 18.04.2006 by holding that it is the private respondents who are owners of the property and the appellants herein are mere trespassers. It was thus contended that in view of the facts and circumstances as enumerated above especially when the appellants have already lost one legal battle against the private respondents qua the same order which has been challenged herein, the appellants do not deserve any kind of indulgence from this court as the same is completely devoid of merit. Hence he has prayed for dismissal of all the appeals.
After hearing learned Counsel for the parties and perusing the paper book, this court is of the considered view that the present appeals are devoid of any merit and the same deserves to be dismissed. The argument raised by the learned Counsel for the appellant qua the period of limitation and the wrong reliance upon the judgments of this Court is concerned, I am of the view that the same is misconceived for the reason that the appellant did not lead any iota of evidence to the effect as to what was the period of mortgage and for how long the mortgage was to continue. In the absence of any evidence to this effect, it cannot be said that the mortgage was either for RSA No.1646 of 2012(O&M) #9# 5 years, 10 years, 50 years or even more. It is settled position of law that the period of limitation shall run against the mortgagee only after the expiry of original period of mortgage. When no period of mortgage had either been pleaded or proved, it cannot be said that there was expiry of the period of 30 years from the date of commencement of mortgage, Central Government had become the owner of the suit land by lapse of time. The Hon'ble Full bench of this Court has already held in Ram Kishan's case (supra) that no time period is fixed to seek redemption, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor post or tenders to the mortgage or deposits in court the mortgage money or the balance thereof. It was further held in this judgment that once a mortgagee would always remain a mortgagee and the same is redeemable at any point of time. The Hon'ble Supreme Court in Panchanan Sharma Vs. Basudeo Prasad Jagnani & Ors. 1995(2)AILLR 189 (Supreme Court) has also held that the limitation for redemption would run from the date fixed in the mortgage deed and if no date has been specifically mentioned, then there is no limitation on redemption of usufructuary mortgage. In the present case there is no dispute to the fact that when the mortgage was done by Smt. Naraini, the possession was handed over by her to Nawab Shehbaz and Noor Mohd both sons of Mohd. Baksh. In this eventuality the mortgage is a usufructuary mortgage and shall remain the same until and unless it is redeemed by the owner.
Thus in view of the above mentioned position of law and the facts enumerated, this Court is of the opinion that the argument raised by the learned Counsel for the appellant regarding the applicability of the Article RSA No.1646 of 2012(O&M) #10# 61 of the Limitation Act is completely misconceived and further argument of the learned counsel for the appellant that the judgment in Ram Kishan's case (supra) is not applicable is also devoid of any merit.
The other argument raised by the learned Counsel for the appellant that the findings returned in the previous civil suits are not binding upon the appellant is also misconceived for the reason that a perusal of the certified copies of the judgments and decrees passed in the previous civil suits which were decided on 22.02.2002(Ex.P-11 to Ex.P-16) reveals that in the said civil suits the appellants herein had taken a specific plea that the land in dispute had already been ordered to be redeemed by the Collector, Jalalabad vide order dated 2.6.1999 and mutation no.670 had been sanctioned in their favour, meaning thereby, it can be said that the appellants Sham Lal etc were in the knowledge of the redemption order dated 2.6.1999 passed by the Collector, Jalalabad, during the pendency of the said suits, which has been challenged in the present civil suits filed by them titled as Sham Lal & Ors. Vs. Union of India & Ors. Thus, if it is seen from another angle, this order of redemption was firstly in the knowledge of the appellants herein and secondly even though it was in the knowledge, they have challenged it beyond the period of three years of limitation. Thus the said order cannot be challenged in the present civil suit. Hence I have no hesitation in holding that the present suit filed by the appellants is barred by limitation.
Another aspect which also disentitles the appellants from challenging the order of redemption is that the order was passed among the private respondents and the official respondents and the appellants had no RSA No.1646 of 2012(O&M) #11# cause of action whatsoever in the same. In that given scenario I failed to understand how the appellants could challenge the order dated 2.6.1999, especially when they were not the party and hence they do not have any locus standi to challenge the same. It was only the Central Government who had the locus to impugne the order dated 2.6.1999 and challenge it on valid grounds. Since the appellants were in knowledge of the impugned order dated 2.6.1999 at the time of filing of the previous civil suits, therefore, I also hold that the present suit is barred under Order 2 Rule 2 CPC as the relief that could have been claimed in the previous suit was not claimed by them therein and now in a subsequent suit they cannot be permitted to put forward the claim. It is settled position that as per Order 2 Rule 2 CPC if a plaintiff omits to suit in respect of, or intentionally relinquishes any portion of his claim, he was not afterwards sue in respect of the portion so omitted or relinquished. Hence the suit suit filed by the appellants is barred under order 2 Rule 2 CPC.
The appellants, it seems are chronic litigants and they are trying in one way or the other to defeat the rightful claim of the private respondents, who have done every effort possible and conceivable under law to get their right in the property. Although, the learned Counsel for the appellant has argued that the private respondents have not been able to prove either the gift deed or the sale deed on record as per the provisions of Section 68 of the Indian Evidence Act, I am of the opinion that this argument is not at all conceivable and the same is to be rejected simply for the reason that it is an admitted fact that in the previous civil suits filed by the appellants, the courts had held the private respondents to be owners of RSA No.1646 of 2012(O&M) #12# the land and appellants were held to be trespassers. This fact was confirmed upto to this Court as is evident from judgments dated 18.4.2006 which were proved on record as Ex.P-27, Ex.P-29 & Ex.P-30. It is also an admitted fact that the said judgments of this Court were not challenged by the appellants before the Hon'ble Supreme Court. Hence these judgments had attained finality and since the same question regarding ownership has already been decided by way of previous civil suits by court of competent jurisdiction, therefore, the objections raised by the learned Counsel for the appellant by disputing the ownership of the private respondents has to be rejected. Thus I am of the opinion that the present suit is also barred by Section 11 of CPC as the same is hit by the principles of res judicata because the question regarding ownership etc already stands determined upto this Court in the previous civil suits.
In view of the above findings, no question of law much less substantial question of law arises in these appeals for determination and the same are hereby dismissed.
( JASWNT SINGH ) JUDGE July 03, 2012 Vinay