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Judgment
Surinder Gupta, J.—1. Plaintiff-Khilanda Ram (appellant) filed suit claiming the reliefs as follows:-
(i) Declaration that entries in the revenue record showing the defendants or their predecessor as mortgagee of suit land are illegal and required to be deleted;
(ii) the defendants have no right, title or interest in the suit land of which plaintiff is owner in possession;
(iii) a decree of permanent injunction restraining the defendants from interfering in possession of plaintiff over suit land; and
(iv) in the event of plaintiff being dispossessed by the defendants during pendency of suit a decree for possession be passed in favour of plaintiff and against the defendants.
BRIEF FACTS:-
The land in dispute comprised of 1/6th share bearing khasra No. 2202 (0-19), 2204 (0-3), 2207 (0-16), 2208 (0-8), 2209/2 (0-8) measuring in all 2 bighas 14 biswas and khasra no. 2125 (3-1), 2139 (0-5), 2163 (0-16), 2165 (1-5), 2009 (1-16), 3308 (0-12), 2210 (2-1), 2129 (1-9), 2199 (1-6), 2130 (0-12), 2131 (1-3), 2134 (0-15), 2136 (0-18), 2137 (2-4), 2138 (0-18), 2141 (1-6), 2142 (1-11), 2145 (0-12), measuring in all 23 bighas 7 biswas is situated within the revenue estate of village Mauja Taoru, tehsil Nuh, District Gurgaon.
The above property was evacuee property sold by Assistant Custodian, Gurgaon in public auction and plaintiff being highest bidder was issued the necessary sale certificate and mutation Nos. 2198 and 2199 respectively were duly entered and sanctioned in the revenue record in favour of plaintiff on 05.05.1962.
The above land was mortgaged by predecessor-in-interest of Assistant Custodian with defendants. The original mortgagor migrated to Pakistan and the land became evacuee property and came under the charge and control of Assistant Custodian free from all encumbrances, as under Section 9 (2) of the Evacuee Interest (Separation) Act, 1951 (later referred to as ''the Act of 1951''), mortgage stood extinguished on expiry of 20 years. As per provisions of ''the Act of 1951'', defendants were left with no interest in suit land and custodian became owner of this land free from all encumbrances.
In consolidation, suit land was given khewat no. 1095, khatauni no. 1249, Rect. No. 39, Killa No. 16 (3-9), 25 (2- 12), Rect. No. 50, Killa No. 5/1 (4-11), khewat No. 1096, khatauni No. 1250, Rect. No. 37, Killa No. 8 (6-16), 12/2 (7-0), 13/1 (3-8), 19/1 (4-10), measuring in all 35 kanals 2 marlas situated within the revenue estate of Village Mauja Taoru, tehsil Nuh, District Gurgaon.
Plaintiff purchased the aforesaid land free from all encumbrances and the mortgagee right of defendants got extinguished as per Section 9(2) of ''the Act of 1951''. The entry in the revenue record showing the defendants as mortgagee of suit land is illegal, void and without jurisdiction. Plaintiff being full owner of the land has legal right to get the revenue record corrected. Plaintiff claimed to be in physical possession of suit land since the date of its purchase i.e. 06.09.1960.
In the written statement, defendants contested and controverted the claim of plaintiff inter alia pleading that plaintiff is not in possession of suit land or any portion of it. The defendants have become owner of suit land by adverse possession as their possession is continuous, open, peaceful and hostile to the knowledge of plaintiff for a period of more than 12 years. They have been exercising the right of ownership over suit land and right of plaintiff and his title in suit land has got extinguished with the lapse of time. It was, however, admitted that suit land was evacuee property and Assistant Custodian, Gurgaon had sold the same to plaintiff in public auction. It was also admitted that original mortgagor of suit land migrated to Pakistan and suit property became evacuee property. The mortgage stood extinguished under the ''Act of 1951'' and the defendants no longer remained mortgagees of the land auctioned to plaintiff. It was also admitted that suit land measuring 35 kanals 2 marlas as mentioned above was allotted in lieu of earlier land in consolidation proceedings in village Taoru. Defendants also admitted that entries showing them as mortgagees of suit land are incorrect. The defendants are rather in possession of suit land as full owner of the same. Plaintiff, who is resident of village ''Taoru'', has been seeing the defendants and their predecessor-in-interest in possession of suit land as of right with a hostile intention right from the date of auction in his favour by custodian. The physical possession of suit land was not delivered to him at the time of auction, which is still with the defendants.
Plaintiff reasserted his claim in replication and pleadings of parties led to framing of the issues as follows:-
(i) Whether the plaintiff obtained the possession of the disputed land from the defendants after the auction in his favour? OPP
(ii) Whether obtained sale deed dated 06.09.1980 is in pursuance of the auction proceedings? OPP
(iii) Whether the defendants have become the owner of the suit land by way of adverse possession? OPD
(iv) Whether the suit is beyond limitation? OPD
(v) Whether the suit is not maintainable in the present form? OPD
(vi) Whether the plaintiff is barred by his act, conduct from filing the suit? OPD
(vii) Relief.
Learned Sub Judge, Ist Class, Gurgaon discarded the plea of defendants-respondents that they have become owner of the land in question by way of adverse possession and decreed the suit.
Learned Ist Appellate Court, Gurgaon, however, set aside the finding of learned Sub Judge, Ist Class holding that defendants-respondents are in possession of disputed land and plaintiff was never delivered its actual possession. The plea of defendants that they have become owner of suit land by way of adverse possession was upheld. The appeal was allowed and suit of plaintiff was ordered to be dismissed. Against the judgment of Ist Appellate Court, plaintiff has filed this appeal.
I have heard learned counsel for the parties and perused the paper-book and lower Court record with their assistance.
Before proceeding further it will be appropriate to understand the facts which are not in dispute and are enumerated as follows:-
(i) Plaintiff claims that entries in the revenue record showing defendants or their predecessor as mortgagee of suit land are illegal and required to be deleted. The defendants also claim these entries as incorrect, as under the provisions of Section 9(2) of ''the Act of 1951'' mortgage stood extinguished on expiry of 20 years from date of mortgage;
(ii) As per copy of order dated 14.06.1960 (Ex. D-13), Competent Officer, Jalandhar Circle at Gurgaon (under ''the Act of 1951''), land measuring 2 bighas and 12 biswas out of suit land was mortgaged by its previous owner Shudauldin with Bhajan Lal to the extent of 2/3rd, Hari Kishan, Ram Jiwan and Sher Singh to the extent of 1/3rd share on 01.10.1944. As per order of same authority dated 15.11.1960 (Ex. D-14), another 1/6th share of Shajuddin in remaining suit land was mortgaged in favour of Goverdhan Lal and Bhajan Lal vide mortgage deed dated 06.08.1943.
(iii) Suit land was allotted in lieu of mortgaged land in consolidation of land of village Taoru;
(iv) as per provisions of Section 9(2) of ''the Act of 1951'', mortgage of land got extinguished by operation of law in the year 1963-1964. Provisions of Section 9 of ''the Act of 1951'' reads as follow:-
"9. Certain reliefs in respect of mortgaged property of evacuees -
(1) xx xx xx xx
(2) Where a mortgagee has taken possession on any terms whatsoever of any agricultural land and is entitled to receive profits accruing from the land and to appropriate the same, every such mortgage shall be deemed to have taken effect as a complete usufructuary mortgage and shall be deemed to have been extinguished on the expiry of the period mentioned in the mortgage deed or twenty years, whichever is less, from the date of the execution of the mortgage deed; and if the aforesaid period has not expired and the mortgage debt has not been extinguished, the competent officer shall determine the mortgage debt due having regard to the proportion which the unexpired portion of that period bears to the total of that period.
(v) civil suit was filed by plaintiff-appellant on 16.07.1981 i.e. within a period of 30 years of extinction of mortgage as per provisions of Section 9(2) of ''the Act of 1951'';
(vi) plaintiff-appellant purchased the suit land in public auction on 06.09.1962 from Assistant Custodian, Gurgaon.
A substantial question of law which arises for consideration in this case is firstly, whether plaintiff was owner of suit property on the date of filing of suit or had lost his title over suit land to defendants, who claim themselves to be owner of suit land by adverse possession on expiry of 12 years from the date the mortgage stood extinguished by operation of law and right to seek possession accrued to plaintiff?
The above substantial question of law arises in this case as plaintiff besides other reliefs has also sought declaration of his title over suit property.
Learned Ist Appellate Court recorded the finding that possession of defendants over suit land stood fully proved and during course of arguments, learned counsel for the appellant despite his attempt to assail this finding has ultimately addressed argument admitting these findings.
Learned counsel for the appellant has argued that right to seek possession of suit land accrued after the mortgage of suit land got extinguished in the year 1963-1964. Under Article 61 (a) of the Limitation Act, plaintiff could seek possession of suit land within 30 years when the right to recover possession accrued. The instant suit, as such, was instituted within limitation and Ist Appellate Court has committed grave error while holding that possession of defendants-respondents has ripened into title by way of adverse possession after expiry of 12 years from the date of allotment of land in public auction or extinguishment of the mortgagee right of plaintiff (in suit land).
Learned counsel for the respondents while not disputing the factual position has vehemently argued that land was allotted to plaintiff in open auction in the year 1962. The mortgage as per operation of law has extinguished in the year 1963-1964. Defendants continued to be in possession of suit land, as such, Article 65 of the Limitation Act is attracted to the facts of present case. Possession of defendants over suit land became adverse to plaintiff on extinguishment of mortgage and the present suit which was filed much after the expiry of 12 years was hopelessly barred by time.
Learned Ist Appellate Court has recorded a categorical finding that possession of defendants over suit land is continuous and plaintiff was never delivered its possession. The version of plaintiff that he was delivered actual possession of suit land and he cultivated the same and gave it for cultivation to different persons was discarded.
Now the only question which remained to be answered is as to whether continuous possession of plaintiff over suit land has matured into title by way of adverse possession? Learned Ist Appellate Court despite discussion of this fact that mortgage of suit land extinguished as per provisions of Section 9 of ''the Act of 1951'' in the year 1963-1964, has failed to look into this aspect as to when the right to seek possession of suit land had accrued to plaintiff. As per Section 9(2) of ''the Act of 1951'', where a mortgagee has taken possession on any terms whatsoever of any agricultural land and is entitled to receive profits accruing from the land and to appropriate the same, every such mortgage shall be deemed to have taken effect as a complete usufructuary mortgage and shall be deemed to have been extinguished on the expiry of the period mentioned in the mortgage deed or twenty years, whichever is less, from the date of the execution of the mortgage deed. It further provides that if aforesaid period has not expired and the mortgage debt has not been extinguished, the competent officer shall determine the mortgage debt due having regard to the proportion which the unexpired portion of that period bears to the total of that period.
Article 61 (a) of the Limitation Act reads as follows:-
The right of redemption under a mortgage deed can come to an end only in the manner known to law. Such extinguishment can take place by a contract between the parties, by a merger or by a statutory provision which debars a mortgagor from redeeming the mortgage. Therefore, a mortgagee who has entered into possession of the mortgaged property will have to give up possession when a suit for redemption is filed unless he is able to show that the right of redemption has come to an end or that the suit is liable to fail on some other valid ground.
The land purchased by plaintiff in public auction was under mortgage. The right to recover possession had accrued to him on the extinguishment of mortgage i.e. in the year 1963-1964. He had filed the suit in July, 1981 which is well within limitation as per provisions of Article 61 (a) of the Limitation Act, discussed above. The possession of defendants over suit land was as mortgagees and not otherwise, as such, provisions of Section 61 (a) of the Limitation Act are applicable to the facts of present case and not provisions of Section 65 of the Limitation Act. This fact was not considered by learned Ist Appellate Court while recording the finding that suit is barred by limitation or that the defendants have become owner of suit land by way of adverse possession. Findings of learned Ist Appellate Court on this point are perverse and liable to be set aside.
Being owner of suit land, plaintiff is entitled to seek its possession, as under Article 65 of the Limitation Act, right to seek possession of immovable property based on title is barred only if the title of person in possession has become adverse.
With the above observation, finding of Ist Appellate Court that defendants have attained title over suit property by way of adverse possession is set aside.
Now the question which confronts this Court as to what relief can be allowed to plaintiff in this case.
First relief sought by plaintiff is that the entries in the revenue record showing the defendants and their predecessor as mortgagee of suit land are illegal and required to be deleted. Plaintiff as well as defendants are on consensus in this regard, as such, plaintiff is entitled to relief of declaration that entries in revenue record showing the defendants and their predecessor as mortgagee are illegal and required to be deleted.
Second relief sought by plaintiff is that the defendants have no right, title or interest in the suit land of which plaintiff is owner in possession. As findings of Ist Appellate Court that plaintiff is not in possession of suit land, have not been assailed, plaintiff is entitled to declaration to the effect that the defendants have no title over the suit land, which vests in plaintiff.
Third relief sought by plaintiff is for decree of permanent injunction restraining the defendants from interfering in his possession over suit land to which he is not entitled.
Fourth relief sought by plaintiff that in the event of plaintiff being dispossessed by the defendants during pendency of suit a decree for possession be passed in his favour, cannot be allowed as there is no evidence that plaintiff was dispossessed during pendency of suit.
Substantial question of law mentioned in para 13 is decided in favour of plaintiff-appellant and against the defendants-respondent.
As a sequel of my above discussion, this appeal is partly accepted and suit of plaintiff is decreed for declaration that entries in the revenue record showing the defendants or their predecessor as mortgagee of suit land are illegal and required to be rectified. Plaintiff is owner of suit land and in the facts and circumstances of the case he shall be at liberty to avail all legal remedies to seek partition and possession of his share in the suit land.
Keeping in view the facts and circumstances of this case, parties are left to bear their own costs.