Ram Singh and others vs Mastan Singh and others

J.V. Gupta, J.

This is defendant''s Second appeal against whom suit for declaration has been decreed by both the Courts below.

Daman Singh predecessorininterest of the defendants mortgaged the suit land in favour of Bhagawan Singh and Mastan Singh vide Nakal Roznamcha dated 7.6.1944 for a sum of Rs. 2317.59. Ram Singh and others sons of Daman Singh mortgagor, filed an application under Redemption of Mortgages (Punjab) Act, for redemption of the suit land. The said application was contested by the plaintiffs on the ground that the application dated 26.5.1978 was barred by time as it was filed beyond the period of limitation of 30 years. The learned Collector repelled the contention of the plaintiffs and came to the conclusion that "As per copy of the mutation No. 2771 the mortgagor could not get the land redeemed before the expiry of a period 5 years. So, I am of the opinion that the period of the limitation should be counted from the date he is entitled to get the land redeemed and that is, 7.6.1949. Counting the period of limitation from 7.6.1949, the petitioners could file application till 7.6.1979. The application has been filed before this date, therefore, the application is not time barred." Consequently, he ordered the suit land to be redeemed on payment of redemption money of Rs. 2317.50 paise. The plaintiffs filed the present suit for declaration challenging the said order of the Collector primarily on the ground that the application was barred by time and, therefore, by lapse of time, the plaintiffs have become owners of the suit land.

In the written statement the plea taken by the defendants was that since the mortgage was `Miadi'' so this time is to be taken into consideration and hence the application for redemption was within time and it has been rightly so held by the Collector.

Thus, the main controversy between the parties was with regard to limitation. The trial Court while discussing issue No. 4 came to the conclusion that though in column No. 1 of the mutation order, the period of 5 years is mentioned by the Patwari but this did not find mention in the original Nakal Raznamcha dated 7.6.1944 and, therefore, it could not be held that the mortgage was `Miadi'' and was to be redeemed after 5 years of its coming into existence (It may be stated here that it is no more disputed that if the said period of 5 years is allowed, then the application filed for redemption was within time). According to the learned trial Court, it appears that the entry regarding 5 years has been made in some hanky panky fashion and otherwise also this entry is of little evidentiary value. In view of this finding, the plaintiffs'' suit was decreed. In appeal, the learned Additional District Judge affirmed the said finding of the trial Court with the observations that the entry in the Rozamcha Exhibit P 14 is silent in this respect. It is not recited therein if the period of redemption of 5 years has been fixed by the parties. The note seems to have been given by the Patwari with malafide intention with the connivance of interested persons. This entry of the Patwari is not signed by any of the parties and as such, any way if cannot be taken as an acknowledgement from the mortgages. Further, there in no reference of the period of 5 years in the order of mutation. The order of the sanctioning authority is absolutely silent in this respect. Had the period of 5 years been fixed by the parties, for redemption of the land, it must have appeared in the entry in the Roznamcha and the order of the revenue authority."

The learned counsel for the defendantappellant submitted that the whole approach of the Courts below was wrong and illegal. The said entry made by the Patwari in the mutation register is countersigned by the Lambardar and Kanungo. The parties were present at the time when mutation was sanctioned in the first instance and were even present on 11.2.1955 when the earlier order was modified as therein rights in the Shamalt Deh were included along with mortgaged land. Thus, argued the learned counsel, since the mutation order is based on the report of the patwari as made in column No. 15 thereof, which contains a period of 5 years, the defendants could not redeem the property earlier than 5 years and from that date the application for redemption was within time. In support of his contention, he referred to Bharat Singh v. The State of Haryana, 1979 P.L.J. 82, and Bal Kishan v. Singh Ram alias Bucha and others 1983 P.L.J. 5 : 1986 R.R.R. 455.

On the other hand, learned counsel for the plaintiffs respondents submitted that the period of five years was only mentioned in column No. 15 entered into by the patwari. Since the same was not signed by any of the parties and the same was not a part of the original report dated 7.6.1944 at entry No. 384 in Exhibit P. 14. It has been rightly held by the Courts below that the mortgage in question was not `Miadi''. In support of his contention, he referred to Siri Chand and others v. Nath 1983 CLJ (C and Cr.) 151 and Shiv Lal and others v. Chet Ram and others, 1970 C. L. J. 898.

I have heard the learned counsel for the parties and have also gone through the relevant documentary evidence. Of course, in the original entry No. 384 in Exhibit P 14, there is no mention of 5 years period of redemption as such, but while entering the said mutation by the Patwari in column No. 15, it is mentioned that the mortgage was `Miadi'' 5 years. In other words, the mortgage was liable to be redeemed after 5 years. The said report is duly signed by the Lambardar and countersigned by Girdawar/Kanungo. At the time of sanctioning the mutation, the parties were present before the Mutation Officer as identified by Shamasher Singh Lambardar. The mutation was sanctioned as entered in the mutation Register. In these circumstances, it could not be successfully argued on behalf of the plaintiffs that this period of 5 years as contained in column No. 15 was not part of the mutation order as `sanctioned''. The finding of the Courts below that this is a mischief on the part of the Patwari, is without any pleadings and without any evidence on record. The plaintiffs nowhere in the plaint alleged that the order of the Collector allowing 5 years period was on account of the mischief of the Patwari. Even in the replication filed on behalf of the plaintiffs no such pleas was taken. In these circumstance, the finding of the Courts below in this behalf was wholly wrong and the findings thus arrived at are vitiated. As a matter of fact, when the Collector found that the application for redemption was within time, it was for the plaintiffs to prove that the said order was wrong and illegal and the period of 5 years could not be allowed. As observed earlier, no such specific pleas was taken nor any evidence to this effect was produced to show that it was the mischief of the Patwari alone. The said entry was made as far back as on 18.11.1944 i.e. more than 35 years back before the finding of the suit and, therefore, after such a long time, it could not be said that it was the mischief of the Patwari.

As observed earlier, if that period of 5 years is allowed then admittedly the application filed on 26.5.1978 was within time as the period of 30 years then elapse on 7.6.1979. Consequently, this appeal succeeds, the judgment and decree of the Courts below are set aside and the plaintiffs'' suit is dismissed with no order as to costs.