Hem Raj and others vs Jaan Mohd. and others

Deepak Gupta, J.—Briefly stated the facts of the case are that the predecessor-in-interest of the present petitioners had mortgaged the land in question with the predecessor-in-interest of the respondents. Shri Durgu filed an application u/s 4 of the Redemption of Mortgages (Himachal Pradesh) Act, 1971 against the respondents for redemption of the suit property measuring 6-8-9 bighas comprised in Khasra Nos. 459, 532 and 534, situated in Mohal Dugrain, Tehsil Sundernagar, District Mandi, H.P.

The respondents in fact did not deny the fact that the land was mortgaged with them but claimed that in between the parties had entered into an agreement whereby the mortgagors had agreed to sell the mortgaged land in favour of the mortgagees and in terms of said agreement of sale dated 10th May, 1983 the entire sale consideration has already been paid to the mortgagors and as such, the application for redemption of mortgaged land was not maintainable.

Earlier respondents No. 1 to 3 had approached this Court by filing a CMPMO No. 291 of 2007 and this Court had issued a direction to the Sub Divisional Collector, Sundernagar, exercising the powers of Collector under the Redemption of Mortgages (Himachal Pradesh) Act, 1971 to proceed with the matter and he was also directed that while recording evidence he would give an opportunity to the present respondents to prove the agreement to sell. Thereafter, the parties appeared before the Collector, who has now passed an order, relevant portion of which reads as follows:

I have gone through the entire record placed on the case file and given thoughtful consideration to the arguments heard. It is clear from the Jamabandi filed with the petition that the land in question was mortgaged by predecessor-in-interest of the present petitioners for an amount of Rs. 200/-. Further as per agreement to sell Ext.R-5/A/I the land in question has already alleged to be sold to the present respondent by the petitioners. To prove the alleged agreement to sell, the respondents were given sufficient opportunity of being heard as the whole documents were sent to the State Forensic Laboratory Junga for verification/authentication of the signature of the present petitioner on the agreement to sell, Vakalatnama, GPA and receipts, but the report was received from the State Forensic Laboratory that these documents are not sufficient to verify the signature of the petitioner on agreement to sell and the receipts. Therefore, alleged agreement to sell executed between the petitioners and respondents, therefore, I find that objections raised by the mortgagee i.e. present respondent regarding contention of the land in question not to be redeemed on the basis of this agreement to sell is accepted. The present respondents are directed to get the agreement to sell decided from the competent court of law. Therefore, on the basis of these reasons, the present petition is dismissed however, the petitioners have the right to file a fresh petition in future, after the alleged agreement to sell is decided by competent court of law.

The apprehension of the present petitioners-mortgagors is that in view of the order now passed, the respondents may or may not approach the Civil Court to get the validity of the agreement to sell adjudicated upon by the Court of law and this would mean that the application for redemption would lie in a state of limbo for infinity.

On the last date it was pointed out by Mr. Shrawan Dogra, learned counsel for the respondents, that in fact the mortgagors have already filed a suit in question and today he has made a statement at the Bar that Civil Proceedings No. 50 of 2010 titled Jaan Mohd. & others vs. Hem Raj & others are pending in the Court of Civil Judge (Junior Division), Court No. 2, Sundernagar and the said case is now fixed on 21.11.2011 for service of defendant No. 8 therein. Therefore, it is apparent that the suit stands filed.

The present petition is, therefore, disposed of with a direction that the learned trial Court dealing with Civil Proceedings No. 50 of 2010 titled Jaan Mohd. & others vs. Hem Raj & others shall make an endeavour to dispose of the suit at the earliest and in any event not later than 31st December, 2011. In case the civil proceedings end in favour of the present petitioners then their application for redemption shall stands automatically revived and they will not have to file a fresh application for redemption and they can approach the Collector that their application for redemption be taken up from the stage when the order dated 3rd August, 2010 was passed.

The order of the learned Collector is modified accordingly and the application for redemption shall not be deemed to have been dismissed but shall be deemed to have been adjourned sine die and shall abide by the result of the civil proceedings. The petition is disposed of in the aforesaid terms. It is made clear that this Court has not expressed any opinion on the validity or enforceability of the agreement to sell. No costs.