Andhra HC (Pre-Telangana)
Bethi Ramswamy And Another vs Madala Seetharamaiah on 8 September, 1998
Equivalent citations: 1998(6)ALD520, 1998(6)ALT235
JUDGMENT
1. This appeal has been preferred under Section 100 of the Civil Procedure Code against the Judgment and decree dated 28-11-1988 passed in AS No.5 of 1987 on the file of the Subordinate Judge, Kothagudem, reversing the Judgment and decree dated 31-3-1987 passed in OS No.10 of 1982 on the file of the District Munsif, Yellandu in Khammam District.
2. The appellants herein arc the defendants and the respondent herein is the first plaintiff in the said suit OS No. 10 of 1982. For the sake of convenience, the parties as arrayed in the suit are referred to in this appeal. The respondent-first plaintiff and his mother as second plaintiff (now deceased) filed the said suit for redemption of usufructuary mortgage and possession of the suit property consisting of Ac. 1.33 guntas of wet land in S.No.19 of Garla village. The case of the plaintiffs is that they created an usufructuary mortgage in favour of the first defendant who is the husband of the second defendant with respect to the suit property belonging to them and delivered possession of the same after obtaining a sum of Rs. 1.500A and they also executed a simple unregistered usufructuary mortgage deed dated 8-2-1960 and as per the terms of the said mortgage, the first defendant has to vacate the suit property and deliver possession of the same to the plaintiffs after receiving the mortgage amount of Rs.1,500/-. In the year 1963 the proceedings under Section 145 Cr.P.C. in MC No. 17 of 1964 were initiated by the Sub-divisional Magistrate, Kothagudem, against the plaintiffs and the defendants with respect to the suit land and in the said proceedings the sub-divisional Magistrate passed orders directing the first defendant to continue in possession of the suit property till the parties settle the mortgage issue in between them through Court-Thereafter, the plaintiffs got issued a notice to the defendants on 9-10-1981 through their Counsel calling upon the defendants to receive the amount and deliver vacant possession of the suit property. The defendants refused to receive the said notice and also failed to deliver the suit property after receiving the mortgage amount. The plaintiffs deposited the mortgage amount of Rs. 1,500/- into Court and filed the suit seeking the reliefs stated supra.
3. Resisting the claim of the plaintiffs, the defendants filed their written statement.
The defendants admitted about the usufructuary mortgage created by the plaintiffs with respect to the suit property and also the execution of the unregistered usufructuary mortgage deed dated 8-2-1960. They also admit that they have been put in possession of the suit property as mortgagees. The defendants case is that the plaintiffs obtained paddy of seven khandis and six bags on 'nagu' agreeing to repay at the rate of three bags per khandi per year within a period of three years and in default to repay die mortgage amount of Rs. 1,500/- and paddy as per nagu, the second plaintiff had agreed to sell away the suit land and executed an agreement to that effect on 3-10-1962. The defendants also pleaded at the time of creation of usufructuary mortgage the plaintiffs kept nine guntas of land out of die suit land with diem and they have been cultivating die said land and the second plaintiff also executed an agreement on 29-9-1960 agreeing to give half of the yield from die said nine guntas of land after deducting the expenses. The plaintiffs failed to repay the mortgage amount and also failed to pay the paddy as per nagu and therefore the plaintiffs and the defendants settled their accounts in the presence of the village elders and agreed to the settlement and the terms of the said settlement are that plaintiffs should relinquish their right over the suit land in favour of the first defendant and the first defendant should forego the mortgage money of Rs. 1,500/- and paddy recoverable towards nagu and an agreement dated 20-3-1980 (Ex. Bl) was executed by the second plaintiff in the presence of the elders-Venkato Ramulu, Mohan Reddy and Satyam. Since then, the defendants have been enjoying the suit property in the capacity of true owners and the plaintiffs never interfered with peaceful possession of the defendants. The plaintiffs filed the suit with a mala fide intention to harass the defendants and the suit is liable to be dismissed.
4. The trial Court settled the following issues:
(i) Whether plaintiff is entitled to get back the suit land on deposit of Rs. 1,500/-
mortgaged by the mother of plaintiff money payable to D1?
(ii) Whether plaintiff was paid with 7 khandis and six bags of paddy by D1 as pleaded in written statement with a condition to repay the same within three years in default to sell the suit land to Dl?
(iii) Whether plaintiff No.2 late Madala Venkamma had executed such document to the above effect? If so, what is its effect on the suit?
iv) Whether plaintiff No.2 and Dl had settled the accounts before the elders of the village and whether the plaintiff No.2 had agreed to give away the suit land to D-l and D-l had agreed to write off Rs. 1,500/- cash and Nagu and paddy of 7 khandis and six bags of paddy as per written statement, if so whether it is binding on plaintiff No. 1 is valid in law and what is its effect on the suit?
(v) To what relief?
During the course of trial, PWs. 1 and 2 were examined and Exs. Al to A19 were marked on behalf of the plaintiffs. DWs.1 and 2 were examined and Exs.Bl to B4 were marked on behalf of the defendants. On a consideration of the oral and documentary evidence on record, the learned District Munsif held that in the light of the provisions contained in the Andhra Pradesh Scheduled Areas Land Transfer Regulation, 1959 (hereinafter called as 'APSALT Regulation') as amended by Regulations 1963 and 1970. The plaintiffs suit is not maintainable as the mortgage dated 8-2-1960 is null and void, therefore, decided the first issue against the plaintiffs. Issue No.2 was held in favour of the defendants. Issue No.3 was held in favour the plaintiffs and on Issue No.4 the trial Court held that there was settlement of accounts between the plaintiffs and the defendants and Ex.Bl was executed by the second plaintiff relinquishing her rights over the suit property in favour of D1. It is further held that the said document Ex.B1 is not valid in view of Section 3 of APSALT Regulation of 1970. Consequently, on Issue No.5 the trial Court dismissed the suit and directed the parties to bear their own costs.
5. In the appeal preferred by the first plaintiff in AS No.5 of 1987 the lower appellate Court settled the following points for consideration:
(i) Whether the appellant-first plaintiff is entitled to redeem the plaint schedule property?
(ii) Whether the APSALT Regulation, 1959 as amended by Regulations of 1963 and 1970 extending to Talangana Area is a bar to maintain the suit by the plaintiffs? On reappraisal of the evidence on record and the case law, the lower appellate Court held that the provisions under APS ALT Regulation 1959 as amended by the Regulations of 1963 and 1970 are not applicable to the suit transaction as such Regulation is not applicable retrospectively in view of the Full Bench Division of this Court reported in 1981 (2) ALT 238, and as such the suit for redemption is maintainable and that the alleged agreement of sale Ex.Bl relied on by the defendants is a concocted document and it is not admissible in evidence and that the plaintiffs suit is not barred by time. Consequently, the lower appellate Court allowed the appeal and set aside the judgment and decree of the trial Court and preliminary decree for redemption was passed. As against that judgment and decree in AS No.5 of 1987, the defendants have come up with this second appeal.
6. There is no dispute that the plaintiffs created an usufructuary mortgage deed with respect to the suit property after obtaining a sum of Rs. 1,500/- and also executed an unregistered usufructuary mortgage deed in favour of the first defendant on 8-2-1960.
The possession of the suit land was also delivered to the defendants in pursuance of the said mortgage. The defendants also admit the said usufructuary mortgage transaction between the patties. But they contend that there was settlement of accounts between the plaintiffs and the defendants with respect to the mortgage and also the paddy due by the plaintiffs to the defendants and a document dated 20-03-1980 was executed by the second plaintiff in favour of the first defendant relinquishing her right over the suit property and the first defendant had agreed to forego the amount due to him by the plaintiffs. Therefore, they contend that since 20-3-1980 the defendants continued to be in possession of the suit property as true owners and not as mortgagees.
7. Heard the learned counsel on cither side. Shri G. Krishna Murthy, learned Counsel for the appellants took me through the impugned Judgment of the lower appellate Court and the Judgment of the trial Court. Having considered the contentions raised by the Counsel on either side the following substantial questions of law arise for consideration:
(i) Whether the suit transaction which took place on 8-2-1960 is affected by the provisions of the APSALT Regulation I of 1959 as amended by the Regulations of 1963 and 1970?
(ii) Whether the plaintiffs suit for redemption of the usufructuary mortgage and for possession of the suit property is maintainable as the mortgage deed dated 8-2-1960 is an unregistered one and the said document is not produced into Court?
(iii) Whether the second plaintiff relinquished her right of redemption as per the document dated 20-3-1980 (Ex.B1)?
(iv) Whether the said document is valid in the light of the provisions of APSALT Regulation I of 1959 as amended by the Regulations of 1963 and 1970?
(v) Whether the suit is maintainable in a Civil Court in view of the provisions of the Andhra Pradesh Agency Rules?
(vi) Whether the suit is barred by limitation ?
(vii) Whether the defendants have perfected their title by adverse possession?
It may also be stated here that besides the substantial questions of law raised in the Memorandum of Appeal the learned Counsel for the appellants-defendants has been permitted to raise additional grounds as per the order of this Court in CMP No.10316 of 1997 dated 1-9-1998.
8. As regards the first question i.e., maintainability of the suit transaction in view of Section 3(1)(a) of A.P. Salt Regulation I of 1959 as amended by the Regulations 1963 and 1970, (hereinafter called as 'Regulations') the learned first appellate Court rightly held that the said provisions are not applicable to the suit transaction as the said regulation is not retrospective in operation and it does not affect the transactions made prior to coming into force of the said Regulation. For the sake of convenience, 1 will quote Section 3(1)(a) which deals with transfer for immovable property and it reads as under:
"3(1)(a) Notwithstanding anything contained in any enactment, rule or law in force in the Agency tracts, any transfer of immovable property situated in the Agency tracts by a person whether or not such person is a member of Scheduled Tribe, shall be absolutely null and void, unless such transfer is made in favour of a person, who is a member of a Scheduled Tribe or a Society registered or deemed to be registered under the A.P. Co-operative Societies Act, 1964 (Act 7 of 1964) which is composed solely of members of Scheduled Tribes."
9. It is not in dispute that originally APSALT Regulation I of 1959 was made applicable only to Andhra Area but the provisions of the said Regulation I of 1959 was made applicable to Telangana Area on 1-12-1963 under Regulation 2 of 1963. Admittedly, the suit land is situated in Khammam which is in Talangana Area. It is also not in dispute that the suit land is situated in Agency Area and the suit transaction of usufructuary mortgage is between non-tribals. Section 3(1)(a) quoted supra, prohibits transfer of immovable property situated in the Agency tracts by a person whether or not such a person is a member of a Scheduled Tribe except persons or societies mentioned therein. Section 3(2)(a) confers power on the Agent or Agency Divisional Officer to pass a decree of ejectment against any person in possession in contravention of Section 3(1) and for restoration of possession to the transferor or his heirs. When the regulation was made applicable to Talangana Area with effect from 1-12-1963, whether the said Regulation is applicable to the transactions which took place prior to 1-12-1963 came up for consideration before the Full Bench of this Court in Gaddam Narasa Reddy and others v. Collector, Adilabad District and others, 1981 (2) ALT 238. It has been held by the Full Bench that "Section 3(1) of Regulation I of 1959 and its amendments by Regulation II of 1963 and I of 1970 have no retrospective operation and do not affect transfers made prior to the said regulation or its amendments coming into force and the authorities under Section 3(2) of the Regulation have no jurisdiction to pass orders in relation to the immovable property covered by such transaction''. In Deputy Collector and another v. S. Venkataramanaiah and another, , three Judges Bench of the Supreme Court categorically held thus :
"The provisions of Section 3 (1) of the Regulation are purely prospective in nature and do not affect past transactions of transfers effected between tribals and non-tribals or between non-tribals and non-tribals themselves in the Agency tracs at a time when neither Regulation I of 1959 nor Regulation II of 1963 nor Regulation I of 1970 was in force. Such past transactions remained untouched by the sweep of the aforesaid subsequently enacted regulations."
In view of these authorative pronouncements of the Full Bench of this Court and the Supreme Court that the Regulations have no retrospective operation, it has to be held on the first question that the suit transaction which took place on 8-2-1960 is not affected by the provisions of the said Regulation I of 1959 as amended by the Regulations of 1963 and 1970.
10. As regards the second question, admittedly the plaintiffs created an usufructuary mortgage in favour of the first defendant after obtaining a sum of Rs. 1,500/-and the second plaintiff executed usufructuary mortgage deed dated 8-2-1960. It is also admitted that it is an unregistered one and the said document is also not produced into Court. The learned Counsel for the appellant Sri G. Krishna Murthy vehemently contends that as the mortgage amount is more than Rs. 100/- it should be registered under the provisions of Section 59 of the Transfer of Property Act and that the said document is inadmissible in evidence under the provisions of Sections 17 and 49 of the Indian Evidence Act (sic Registration Act) and that the plaintiffs failed to produce the said document into the Court-The plaintiffs could not be found fault for non-production of the said mortgage deed for the reason that they are the mortgagors and the mortgage deed will be with the first defendant who is the mortgagee under the said document- Moreover, as seen from Ex.A1 the certified copy of order in MC No. 17 of 1964 dated 13-6-1965 passed by the Sub-Divisional Magistrate, Kothagudem, relating to the proceedings initiated under Section 145 CrP.C. between the plaintiffs and the defendants herein, there is a mention that the said mortgage deed was produced by the defendants herein before the Sub-Divisional Magistrate. The defendants both in their written statement as well as in the evidence of the DW1 (Dl) have categorically admitted the creation of the usufructuary mortgage in favour of Dl and DW1 also admits that he came into possession of the suit property as a mortgagee. Therefore, the question is whether in the absence of mortgage deed and in view of the fact that such a mortgage deed is an unregistered one whether the plaintiffs suit for redemption of mortgage is maintainable as the mortgage transaction has been admitted by the defendants.
As seen from the impugned Judgment the lower appellate Court relied on the decision of the Lahore High Court in Munish Ram v. B. Balaakhi Ram and others, 1947 Lahore 335, and the decision of the Madras High Court in Govinda Nair and another v. Kaiputal Ahmed and others, AIR 1927 Mad. 92, for the proposition that where the pleadings show that the defendants admit his possession as mortgagee on the terms of mortgage it does not matter whether the document itself is admissible or not, and the relation between the parties is that of mortgagor and mortgagee and a suit for redemption will lie and the question of inadmissibility of mortgage deed due to its non-registration does not arise. I am in full agreement with the said proposition of law. Further even if it is construed that the mortgage in the instant case is invalid in view of the provisions of the Transfer of Property Act and Registration Act, still the present suit can be treated as a suit for recovery of possession based on the title on repayment of the amount due to the defendant under the said mortgage deed which is not disputed by the defendants. Further as seen from the averments in the plaint the plaintiffs are seeking the relief of possession of the suit property and they have deposited the mortgage amount of Rs. 1,500/- into Court at the time of the presentation of the plaint. Hence, the present suit for recovery of possession of the suit property and for redemption on payment of the amount due to the defendants is maintainable even though the mortgage deed dated 8-2-1960 is an unregistered one.
11. As regards the third and fourth questions, it is contended by the Counsel for the appellants-defendants the plaintiffs suit is not maintainable as the second plaintiff relinquished her right of redemption and executed the agreement of sale (Ex.Bl) in favour of the first defendant on 20-3-1980. The learned Counsel for the appellant further submits that under Ex.Bl first defendant retained his possession as purchaser and he can invoke the aid of Section 5 3-A of the Transfer of Property Act. The learned Counsel for the respondent-plaintiff on the other hand, submits that the right of redemption of the suit property which is an immovable property can only be extinguished in the instant case, by a registered document inasmuch as the extinguishment of right of redemption by the mortgagor creates a corresponding right in the immovable property on the mortgagee and that Ex.Bl in the instant case is inadmissible in evidence for want of registration. He further contends that the plea of Section 53-A of the Transfer of Property Act is not available to the mortgagee. The learned Counsel for the respondent-plaintiff submits that Ex.Bl was not at all executed by the second plaintiff and even if its execution is proved, it is invalid in the light of the provisions of the APSALT Regulation I of 1959 as amended by the Regulations of 1963 and 1970. As earlier stated, that Section 3(l)(a) of the said Regulation postulates that after coming into force of the said provisions any transfer of immovable property which is in the sweep of Section 3(1)(a) would be absolutely null and void unless the transfer falls within the excluded category as mentioned in the said provisions. Section 2 of the said Regulation defines transfer as under:
"'Transfer' means mortgage with or without possession, lease, sale, gift, exchange or any other dealing with immovable property not being the testmentary disposition and includes a charge of such property in respect of mortgage lease, sale, gift, exchange or any other dealing."
There cannot be any doubt that the transaction under Ex.B1 fall within the definition of transfer as defined under Section 2 of the Regulation. The defendants themselves claimed it as agreement of sale with respect to the suit property which is immovable property obtained on relinquishment of the Equity right of redemption in exchange for giving up the money due to the defendant under the mortgage and this transaction under Ex.Bl had taken place on 20-3-1980. Thus this transfer has been effected after the APSALT Regulation 1 of 1959 with its amendments of Regulations of 1963 and 1970 were extended to Telangana Area on 1-12-1963. Therefore, the said transaction is void under Section 3(1)(a) of the said Regulation.
12. In Narandas Karsondas v. S.A. Kantam and another, , three Judges Bench of the Supreme Court has laid down that "the equity of redemption is not extinguished by mere contract of sale. Therefore, until the same is completed by registration, the mortgagor does not lose right of redemption". It is further held in the same decision thus:
"In view of the fact that only on execution of conveyance ownership passes from one party to another, it cannot be held that the mortgagor lost the right of redemption just because the property was put to auction. The mortgagor has a right to redeem unless the sale of the property was complete by registration in accordance with the provisions of Registration Act."
The plea of the Counsel for the appellant that die defendants can avail the aid of Section 53-A of the Transfer of Property Act as the first defendant is an holder of agreement of sale, Ex.B1, cannot be accepted for the reason that the said document, Ex.B1, is not valid under APSALT Regulation I of 1959 as stated supra.
13. The fifth question is that the plaintiffs' suit is not maintainable in a regular Civil Court in view of the provisions of A.P. Agency Rules and as the suit property is situated in scheduled area. This point is squarely covered by a decision of a Division Bench of this Court in Ashifaquaddin and others v. Mohd. Alimuddin and others, . The Division Bench held as under (in para 58):
"We hold that the jurisdiction of the ordinary Civil Courts to take cognizance of suits of civil nature in respect of disputes relating to or arising out of lands situated in scheduled area where all the parties are non-tribaJs and where the cause of action arises within the jurisdiction of the Civil Court is not barred by the provisions of Andhra Pradesh Agency Rules either expressly or by necessary implication.'' In the instant case, as earlier stated, the parties to the dispute are non-tribals. The decision of the Division Bench is binding on me. Hence, I have to hold that the plaintiffs suit is maintainable in a regular Civil Court even though the suit land is situated in Agency Area.
14. The last two questions relate to whether the defendants who have been in possession and enjoyment of the suit property since 1960 have perfected their title to the suit property by adverse possession and whether the plaintiffs suit for redemption and/or possession is barred by time. The learned Counsel for the respondent-plaintiff rightly contends that the plea of adverse possession was not taken by the defendants in their written statement and as such it is not open for the Counsel for the appellant at this stage. The learned Counsel for the respondent further submits that the plea that plaintiffs' suit is barred by limitation was also not taken by the defendants in their written statement. The defendants admit in their written statement that the first defendant was inducted into possession of the suit property as mortgagee under usufructuary mortgage deed dated 8-2-1960. Thus, according to the defendants their possession of the suit property is permissive i.e., as mortgagees. Permissive possession could not be regarded as adverse possession. Further if it is taken that the first defendant has been in possession by virtue of the document, Ex.B1 as a full owner, it is only from 20-3-1980 and the 12 years period has not expired by the date of filing of the suit. Hence, it has to be held that the defendants have not perfected their title to the suit property by adverse possession and that the plaintiffs suit is not barred by limitation.
15. In the light of my above discussion, the appeal is liable to be dismissed. Accordingly, the appeal is dismissed with costs throughout and the Judgment and decree dated 28-11-1988 passed in AS No.5 of 1987 are confirmed.