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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.