Mst. Ajmer Kaur vs Babu Mal and Other

J.V. Gupta, J.—This is Defendant''s second appeal against whom suit for possession was dismissed by the trial Court, but has been decreed in appeal. The Plaintiffs Babu Mal and Gopal Mal tiled the suit for possession of 14 Kanals 13 Marias of land on the allegation that they were mortgagees with possession of the suit land and were thus in possession as mortgagees and enjoying the fruits of this land. In June 1971 the Defendant entered into forcible possession without any legal right and, therefore, the Plaintiffs are entitled to recover the same it was further pleaded that the land was never redeemed and till its redemption the Plaintiffs are entitled to remain in possession. The suit was contested interalia on the ground that the Plaintiffs were not the mortgagees of the suit land as alleged. Their possession on the suit land was also denied. It was pleaded that in fact the Defendant had been in possession of the land and had been cultivating the same through her servants a specific plea was taken that the suit was barred by time and on the principles of resjudicata. The trial Court found that the Plaintiffs are the mortgagees of the land to the extent of one fourth share only. It was further found by the trial Court that the Plaintiffs have failed to prove that they were ever dispossessed by the Defendants from the suit land. The Defendant Ajmer Kaur was found to be the owner of the suit land, but it was held that the suit land was mortgaged with the ancestors of her husband by the owners of the suit land and it was further sub-mortgaged by them to the Plaintiffs to the extent of one fourth share therein. The suit of the Plaintiffs was held bared by time as they failed to establish on record that they remained in possession thereof during the last twelve years. With these findings the Plaintiff''s suit was dismissed. In appeal before the learned Additional District Judge, the finding that the Plaintiffs were sub-mortgagees to the extent of one fourth share in the suit land was not disputed- Rather it has been admitted by the Plaintiff Kulwant Rat himself while in the witness box that he was the mortgagee under the ancestors of husband of Ajmer Kaur Defendant on the whole land. However, the lower appellate Court came to the conclusion that the Plaintiffs where in possession of the suit land in June, 1971 and since the suit was filed on 7th February, 1973, it was thus within time under Article 65 of the Limitation Act The claim of the Plaintiffs could be denied only if the Defendant could prove some title in the suit land, which she has failed to prove as her suit which she had already filed for redemption of the suit land was dismissed In view of this finding the Plaintiffs suit was decreed. Dissatisfied with the same the Defendant Ajmer Kaur has filed this second appeal in this Court.

Learned Counsel for the Appellant contended that even on the findings of the Courts below the Plaintiffs were entitled at the most to one fourth share of the suit land, on which they have been held to he sub-mortgagees under the ancestors of the Appellant Ajmer Kaur As regards the three fourth share, admittedly the Defendant was the mortgagee under the owners and, therefore, the Plaintiffs have no better title as claimed by them due to possession from the Defendant Ajmer Kaur. In support of his contention he relied on Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, .

3 On the other hand Learned Counsel for the Plaintiff Respondents contended that earlier the Defendant Mst. Ajmer Kaur filed a suit for possession by way of redemption on payment of Rs. 20/- for the one fourth share, and in that suit it was found that she was not entitled to claim ownership with regard to three fourth share of land in suit. Certified copy of the judgment dated 28th January, 1969 is Exhibit P-3. Thus argued the Learned Counsel, in view of that finding the Defendant Ajmer Kaur was declarred to plead that she was the owner or the mortgages of the suit land to the extent of three fourth share therein.

After hearing Learned Counsel for the parties and going through the relevant evidence on the record, I am of the considered view that the Plaintiffs are not entitled to more than their one fourth share in the suit land, over which they have been held to be sub-mortgagees under the mortgagee Smt. Ajmer Kaur. Admittedly the suit was filed after more than six months from the date of dispossession and, therefore, the Plaintiffs could succeed only on the basis of possession if the Defendant had no better title, as held in Nair Service Society Ltd''s case:

The uniform view of the Courts is that if Section 9 of the Specific Relief Act is utilized the Plaintiff need not prove title and the title of the Defendant does not avail him When, however, the period of 6 months has passed questions of title can be raised by the Defendant and if he does so the Plaintiff must establish a better title or fail, in other words, the right is only restricted to possession only in a suit u/s 9 of the Specific Relief Act, but that does not bar a suit on prior possession, within 12 years and title need not be proved unless the Defendant can prove one. The present amended Articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession of immoveable property based on possession and not on title, when the Plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immoveable property or any interest therein based on title. The amendment is not remedial but declaratory to the law.

In view of the said authoritative pronouncement, the Plaintiffs cannot get back the possession of the three fourth share, on the basis of possession alone, because they have failed to prove their better title. As observed earlier it has been found as a fact that on three fourth share of the suit land Ajmer Kaur is the mortgagee, whereas'' only one fourth share was submortgaged with the Plaintiffs. The finding in the earlier suit that Ajmer Kaur has failed to prove herself to be the owner of the suit land cannot operate as resjudicatat because that was a suit for possession by way of redemption of one fourth share and since the suit was not filed within one year of the order of the Collector it was liable to fail. There was no specific issue to the effect whether the Plaintiffs were the owners of the suit land or not. thus any observation made in that judgment, Exhibit P-3, is of no consequence as regards the present suit. As stated earlier, admittedly the Defendant-appellant is the mortgage of the whole land of which one fourth share has been sub-mortgaged with the Plaintiffs. Thus the Plaintiffs are entitled only to their one fourth share till it could be redeemed in accordance with law.

As a result of this discussion the appeal succeeds, the judgment and decree of the lower appellate Court is modified to the extent that the Plaintiffs'' suit will stand decreed for one fourth share of the suit land only over which they have been found to be sub mortgagees. No costs.