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Judgment
Appellant/plaintiff has filed this present second appeal being aggrieved by judgment and decree dt. 8.4.2000 passed by First Additional District Judge Neemuch, in First Appeal No.20-A/1996 and judgment and decree dt. 1.12.1995 passed by Civil Judge Class-I Jawad District Mandsaur, in Civil Suit
No. 96-A/1984 whereby the suit for partition and possession as well as the appeal has been dismissed.
The facts of the case for effective disposal of this appeal are as under:-
That Late Jamnadasji, had executed mortgage deed (Ex.P/1)admitting his liability for payment of debt amounting to Rs. 11,100/- and mortgaged his share 0.43 share in Cotton Ginning and Oil Mill Baghana (Neemuch), 0-4-6 share in Cotton Ginning Mill Jawad, and 0.0.0 share in cotton ginning Nikumbh (Raj). He had further agreed to pay interest @ 9 anna per month.That Rajendra Prasad s/o Govindramji and two others filed a Civil Suit No.17/1960 against Murlidhar s/o Jamnadasji, for recovery of Rs. 18,935.14/- along with the interest @ 8 anna P.C.P.M. In the said suit the defendants denied the mortgage and their liability to pay on the ground that the property in suit was ancestral and Jamnadasji could not have transferred it without legal necessity. Vide judgment and decree dt. 31.8.1963, (Ex.P/3) the suit was decreed in favour of the plaintiff with decree that the defendant No.1 to 3 shall pay Rs. 18,935,14/- and the cost and interest and in default the plaintiff will be entitled to recover the amount by the sale of mortgage property and accordingly, preliminary decree for sale was drawn. At the time of passing the final decree, an objection was raised by the purchaser of the mortgage property. Their objection was turned down vide order dt. 19.10.1964 (Ex.P/4) and the final decree was drawn (Ex.P/5). In auction proceeding one of the plaintiff Ramswaroop s/o Mohanlal Gattani, has been declared as the purchaser of sale by public auction held on 27.4.1966, for the 18/64 share in the Cotton Ginning Factory Jawad, belonging to the judgment-debtor i.e. Jamnadas. The copy of the sale certificate is (Ex.P/6) dt. 15.11.1968.
Later on, said Ramswaroop Gattani, filed the suit against Madanlal Rathi, for partition and possession of 18/64 share in Cotton Ginning Factory on 19.6.1978 on the basis of sale certificate and final decree.
After notice, Madanlal, i.e. defendant filed the written statement that he has no knowledge of auction sale in favour of the plaintiff in respect of the share of 18/64. He pleaded that from very beginning Jamnadas, had no right or title in land of Khasra 2078,2079 and 2080 belonging to Ginning Factory. The land was initially owned by Sunderlal, Ramkishan, Rajkishan and Balkishan as agriculturist of Zamindar and after abolition of Zamindari they became Pakka tenant from Samvat 2016. That one Harikishan had obtained a decree against Jamnadas, from the Civil Judge Class-II Maheshwar, having 4 annas and 3 pai share in the factory only in house and the machinery. The plaintiff and others filed an objection under Order 21 Rule 63 CPC which was dismissed vide order dt. 2.2.1957 Jamnadas, share was purchased by Harikishan, vide sale certificate dt. 2.2.1961 and thereafter he sold it to Daulal on 6.2.1961. The present plaintiff filed the suit in the year 1960 and obtained the sale certificate in 1964 and same cannot be executed as Jamnadas, has already sold it therefore, the suit is liable to be dismissed.
On the basis of pleading 13 issues were framed. The plaintiff examined Ramswaroop Gattani, as P.W.1 and got exhibited 20 documents as (Ex.P/1) to ( Ex.P/20). The defendant examined Madanlal and got exhibited 18 documents as (Ex.D/1) to (Ex.D/18). During the pendency of the suit, the plaintiff expired and his legal heirs were brought on record. Likewise, the sole respondent also expired and his legal heirs were brought on record.
After appreciating the evidence on record in detail, the learned Trial Court has dismissed the suit vide judgment dt.
1.12.1994. While dismissing the suit, the Trial Court has affirmed the sale certificate (Ex.P/6) in favour of the plaintiff but dismissed the suit on the ground that before the sale certificate could be issued in favour of the plaintiff because the share of Jamnadas, had already been sold and the objection raised by the plaintiff has already been rejected. In (Ex.P/1) i. e. mortgage deed the survey number is not mentioned.
Being aggrieved by the dismissal of the suit, the legal heirs of the plaintiff preferred a First Appeal before the District Judge which was registered as First Appeal No. 20- A/1996 vide judgment and decree dt.1.12.1995 the Appellate Court has also dismissed the appeal hence, the present second appeal before this Court.
Vide order dt. 1.10.2002 this Court has admitted the appeal on three substantial questions of law which are as follows:-
"Whether Lower; Appellate Court was justified in confirming the decree passed by the Trial Court which had dismissed the suit filed by the plaintiff.? 2. "Whether plaintiff can be declared owner of suit property on the strength of sale certificate Ex.P/6 granted by Court on the basis of Ex.P/5, and if so whether suit can be decreed on that basis.? 3. What is the true nature of Ex.P/5 and Ex.P/6 so far as ownership of plaintiff in respect of suit property is concerned. 9. I have heard Shri R.C.Chhazed, learned Counsel for the appellants and Shri D.M.Shah, learned Counsel for the respondents at length.
Shri R.C.Chhazed, learned Counsel for the appellant submits that the learned Trial Court as well as the Appellate Court has affirmed the sale certificate (Ex.P/4) and (Ex.P/5) in favour of the plaintiff. There is a preliminary decree as well as final decree in favour of the plaintiff. The share of Jamnadas, in the Ginning Factory is also not disputed. The sale certificate is valid in terms of Order 21 Rule 94 of the CPC therefore, the learned Courts below has wrongly dismissed the suit as well as the appeal that the boundaries and the Khasras numbers are not mentioned in the mortgage
deed. The Courts below have unnecessarily given importance that the survey numbers which are not mentioned in (Ex.P/1) to (Ex.P/6) whereas, he has not disputed that the Ginning Factory was not a part of Survey Nos. 2078, 2079 and 2080.
Both the Courts have decided the suit and appeal in a very casual manner hence, the appeal is liable to be allowed and suit is liable to be decreed.
Learned Counsel for the appellant has placed reliance on the judgments of P.Udayani Devi Vs. V.V.Rajeshwara Prasad Rao and another reported in 1995 AIR SCW 1314, Bhagwati Saran vs. Gargi Din reported in AIR (37) 1950 Allahabad 186 and Promotha Nath Mozumdar vs. Nagendra Nath Mozumdar reported in AIR 1930 Calcutta 235 in support of his contention.
Shri D.M.Shah, learned Counsel appearing for the respondent argued in support of impugned judgment and decree by submitting that before the plaintiff could obtain the decree and sale certificate, the share of Jamnadas, has already been sold therefore, the mortgage deed looses its sanctity. No decree can be executed on the basis of the said mortgage deed therefore, the learned Trial Court as well as the Appellate Court has rightly dismissed the appeal.
-O R D E R-
Vide (Ex.P/1) Jamnadas, had executed the mortgage deed in order to secure the loan of Rs. 11,100/- and by way of security he mortgaged his share in RRG and house of 3 Ginning Press and Oil Mill. The relevant part of Ex.P/1 which is required to be considered in this appeal is as follows:-
"VERNACULAR MATTER OMITTED" 14. It is clear from the aforesaid part of Ex.P/1 that Jamnadas, has mortgaged his share in RRG and house of 3 Gin Press and Oil Mill. The details of RRG and house are not mentioned. On the basis of this mortgage deed the plaintiff has obtained a decree to recover the amount of Rs. 18,935.14/- and in absence of recovery, share of 18/64 of the defendants in Cotton Ginning Factory at Jawad. In preliminary decree as well as the final decree also the details of the property of Cotton Ginning Factory at Jawad, are not mentioned. The judgment in favour of the plaintiff was passed on 31.8.1963 and the sale certificate in respect of 18/64 share in Cotton Ginning Factory was issued on 15th day of June, 1966. Before the aforesaid decree and the sale certificate Govindram, Badrinarayan, Rameshwar and Ramlal Gattani, had already obtained a decree against Jamnalal on 2.2.1957 (Ex.D/3) in respect of share in the factory. The Jamnalal, was having 4 anna 3 pai right, title and interest in the RRG 2078,2079 and 2080 of Cotton Ginning and for which the possession warrant was issued to Harikishan and others vide (Ex.D/5). Thereafter their names have been mutated in the revenue record. In the mutation proceeding, the plaintiff had raised an objection before the Tehsildar which was rejected and thereafter he filed the present suit for partition. D.W.1 in his cross-examination para 12 has stated that he had no knowledge about the first suit filed by the plaintiff against Jamnadas. The plaintiff has filed an objection under Order 21 Rule 63 CPC in which (Ex.D/2) and (Ex.D/3) order was passed but the plaintiff did not challenge the said order and thereafter filed the suit for partition therefore, the issuance of the sale certificate in auction proceeding in favour of the plaintiff the defendant has already purchased the share of Jamnalal, as stated above, there are no details for share and the properties of Jamnalal, in (Ex.P/1) the same cannot be enforced in favour of plaintiff against the defendant for partition.
The learned Trial Court as well as the Appellate Court has rightly dismissed the suit as well as the appeal hence, questions of law framed in this appeal are answered against the appellants and appeal is, accordingly, dismissed.
Decree be drawn accordingly.