1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 42 of 1998. Reserved on : 14. 8. 2008. Date of Decision: Sept. 2, 2008 ____________________________________________________________ Ram Piari @ Kagdu Devi and ors. Appellants. Versus Banka Ram and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellants : Mr. Rajiv Jiwan, Advocate For the respondent No.1. Mr. Ankush Dass Sood, Advocate. _________________________________________________________ Surinder Singh, J The instant second appeal has been directed by the successors of contesting defendant Sarwan against the judgment and decree passed by learned District Judge in appeal No. 2 of 1984, whereby the judgment and decree passed by learned trial Court was modified to the effect that the plaintiff Basanta was in possession of half share of the suit land, consequently the defendant was injuncted till the plaintiff is dis-possessed in accordance with law. SUBJECT MATTER OF DISPUTE, The land comprised in khata number 2, khatauni number 2 and 3 min, kita 33, measuring 42 Kanals 3 Marlas as per the jamabandi for the year 1967-68, situated in Tika Sasal Tappa Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Bamsan, Tehsil and District Hamirpur, hereinafter to be referred as the “suit land”. ADMITTED FACTS. a) The suit land was owned and possessed by original plaintiff Basanta Ram and his brother Nathu (deceased) in equal shares. b) Nathu mortgaged his share in the suit land to one Darshanu who further sold his mortgagee rights to some another person and thereafter it kept on changing the mortgagees and lastly, the mortgagee rights were purchased for Rs 305/- by Sarwan (defendant No.1) the predecessor-in- interest of the appellants herein from Santa alias Basant Ram (deceased defendant) vide registered deed in the year 1972. c) On the death of Nathu, his share was inherited by plaintiff Basanta. CASE OF PARTIES. The original plaintiff Basanta (deceased) had filed the suit for declaration with a consequential relief of permanent injunction on the grounds that the mortgage amount of rupees 305/- was paid to Sant Ram alias Basant Ram mortgagee who is alleged to have sold his mortgagee on First Kartik Sammat 2010 (corresponding to the year 1953) and the payment was acknowledged by a receipt executed by mortgagee but Sant Ram aforesaid mis-represented the facts and sold the mortgagee rights qua half share of Nathu in favour of Sarwan, the predecessor of the appellants, whereas, it was the plaintiff and plaintiff alone who remained into possession of the suit land except the land sold by him from his own share. 3 Hence, sought the declaration that the entries in the revenue papers showing the existence of the mortgage qua the share of Nathu Ram in favour of Sarwan under the plaintiff was contrary to the factual position which required to be corrected, with a consequential relief of injunction restraining the original defendants Sarwan and Sant Ram alias Basant Ram from causing an interference over the suit land. During the proceedings of the case before the learned trial Court, defendant No.2. Sant Ram alias Basanta Ram had died. His legal representatives were brought on record. The suit was contested and resisted by defendant Sarwan. The redemption of the mortgage as alleged is denied. It was specifically averred that Sant Ram aforesaid was recorded as the mortgagee qua the share of Nathu and he had sold his mortgagee rights with possession to him vide a sale deed registered on 21.11.1972 in his favour for a consideration of Rs. 305/- and the mutation to this effect was also sanctioned. Thus he claimed himself to be the owner in possession of the mortgage property on the ground that the period of limitation for redemption of the mortgage has elapsed and prayed for the dismissal of the suit. The plaintiff filed replication denying the preliminary objections and on merits, re-asserted even paras of his plaint. On the pleadings of the parties, the learned trial Court framed the following issues :- 1. Whether the suit is maintainable in the present form? OPP. 2. Whether the mortgage amount has been paid to the mortgagee if so to what effect? OPP. 3. Whether the suit is within limitation? OPP. 4. Relief. 4 After the complete trial, the learned trial Court returned the findings on all the issues in affirmative, consequently decreed the suit to the effect that the plaintiff is the owner in possession of the suit land and the mortgage share in the suit land was redeemed as alleged, thus the defendants were restrained from interfering into the plaintiff’s possession over the suit land. Sarwan defendant assailed the impugned judgment and decree before the learned District Judge and his appeal was allowed on 31.8.1989. The impugned judgment and decree passed by the trial Court was set aside inter alia, on the ground that the original receipt in respect of the mortgage amount was stated to have been lost, the secondary evidence was led which could not cogently prove its genuineness and otherwise also the original receipt was un-registered. Thus while relying upon the judicial precedents reported in AIR 1955 Madras 501 (Doraiswami Chetti –v- Bachani Madaliar) and AIR 1955 TC 184( Kadarali Sahib Abdul Kadar Sahi-v- Ismaile Tharakanar), as a sequel, it was held to be inadmissible in evidence as a document acknowledging the receipt of payment of consideration on account of the extinction of an interest in immovable property. The mortgage was held to be subsisting. The suit of the plaintiff was thus ordered to be dismissed against which the plaintiff filed the second appeal (RSA No. 383 of 1989) in this Court. The original plaintiff Basanta died on 15.10.1990, as such his legal representative Banke Ram, respondent herein, was brought on record. Roshan Lal son of Sant Ram alias Basanta defendant had also died and his name was deleted. Even the names of Jiwa Nand, Hem Raj and Suru Ram were also ordered to be deleted when the matter was pending in RSA No. 383 of 1989. 5 During the proceedings in the earlier second appeal filed in the year 1989, this Court found that the first appellate Court did not record any finding with regard to the question of possession over the property in suit in respect whereof a finding had been recorded by the trial Court. The question as to which of the parties had been in possession was thought to be material to determine the controversy raised in appeal. As such, the learned District Judge who had decided the appeal was directed to determine the question of possession over the property in dispute on the basis of the evidence already on record after hearing the parties. In compliance of the said order, learned District Judge submitted his report holding the plaintiff in possession. This Court vide its judgment passed in RSA No. 383 of 1989 dated 29.4.1997 while setting aside the judgment and decree passed by the first Appellate Court accepted the appeal and the case was remanded back for fresh decision keeping in view the arguments raised by the counsel for the plaintiff before this Court as well as the observations made in the judgment without any effect or impact on the mind of the learned first Appellate Court while deciding the appeal on merits. The observations are contained in paras 8 to 10 of the said judgment which are reproduced as under :- “8. After hearing the learned counsel for the parties at length and on careful examination of the impugned judgment and the record, I find that the plaintiff had been able to make out a case of his being in possession over the suit land and that the findings returned by the learned trial court is not without any basis. In the given set of circumstances, the plaintiff, in my opinion, was entitled to the grant of a decree for injunction that he could not be 6 dispossessed from the suit land except by following proper procedure in accordance with law. 9. The learned first appellate Court has not examined this aspect of the matter at all. The fact whether the plaintiff is in possession or not, has not been appreciated nor the observations made by the learned trial Court in this behalf have been set-aside. 10. I am purposely refraining myself from making any observation to that effect lest it may affect the ultimate decision to be arrived at by the learned first appellate Court. I am, therefore, of the opinion that the matter needs to be examined afresh by the learned first appellate Court in the light of the submissions which the learned counsel for the plaintiff has made before this Court. Consequently, the judgment and decree passed by the learned first appellate Court are set-aside. Thus appeal is accepted and the case is remanded back for afresh decision on merits keeping in view the arguments raised by the learned counsel for the plaintiff in this court as well as the observations made hereinabove in this judgment. Nothing contained hereinabove in this judgment shall have any effect or impact on the mind of the learned first appellate Court while deciding the appeal on merits.” After receipt of the case, the learned first Appellate Court re-heard the appeal and on the reappraisal of the evidence, vide para 16 & 17 of the judgment held as under : “16. While appearing as PW1 on 12.8.83 plaintiff Shri Basanta had stated that the receipt had been handed over 7 by him to his counsel Shri Kali Parshad, Advocate and the same was not traceable. In cross-examination, he has stated that the receipt was handed over by him to his counsel 30 years ago. The period dates back to some where in 1953. The date of receipt is stated to be Ist Kartik Sambat 2010 which also corresponds some time in 1953., It has neither been stated nor is understandable as to under what circumstances and for what purpose the receipt executed in 1953 was handed over by the plaintiff to his counsel in the same year. If the receipt while laying with the learned counsel for the plaintiff was lost, it is very strange that how the same came in the hands of the plaintiff or about 16.6.70 when the same was allegedly produced before the concerned Patwari and daily diary report Ex. P1 came to be recorded. The contradicting statements made by the plaintiff and PW2 Sh. Bidhi Singh who is stated to be scribe of the said receipt also got to create a serious doubt as to its very execution. Whereas the former has stated that the receipt was executed before the Panchayat Committee and the payment was made at the Patwarkhana, PW2 Shri Bidhi Singh has stated that he had scribed the receipt at the Patwarkhana. 17. In view of the above, the plaintiff was not able to substantiate issue No.2 and the findings returned by the ld. Trial Court holding the said issue in the affirmative require to be interfered with at the hands of this Court”. The learned District Judge was of the view that even if for the arguments sake, for a moment, it is considered that the receipt was 8 ever executed, the same was not admissible in evidence being not registered. To come to this conclusion, he relied upon the judicial precedents and held that when the original receipt itself was not admissible in evidence, the secondary evidence led in this behalf showing the discharge of the mortgage debt was of no avail. In so far as the finding with respect to possession of the plaintiff is concerned, vide para No.19 of the judgment, the learned District Judge declared the plaintiff as owner in possession of ½ share of the suit land except the land sold to Lekh Raj defendant No.3 and Sahuru Ram defendant No.4 and he was also held in possession of remaining ½ share of the suit land which was mortgaged with defendant Sarwan consequently decreed the suit for perpetual prohibitory injunction against the contesting defendants, till the plaintiff is not dis-possessed in accordance with law. Thus the judgment and decree passed by the trial Court was accordingly modified. The legal representatives again did not feel satisfied by the impugned judgment and decree passed by the learned trial Court, as such assailed the impugned judgment and decree passed by the first appellate Court which was admitted on the following substantial questions of law :- 1. Whether the Plaintiff (predecessor-in-interest of respondent No.1) can be held to be tenant qua the mortgaged part of the suit land? 2. Whether the property can be mortgaged without delivering the possession on the spot? 3. Whether while deciding the question of possession, learned lower Appellate Court has properly relied upon the revenue record? 4. Whether the civil suit for declaration maintained by the plaintiff was within limitation? 9 5. Whether the judgment and decree passed by the lower Appellate Court is vitiated on account of the mis- reading of ocular as well as documentary evidence on record? Shri Rajiv Jiwan, learned counsel for the defendant-appellant has forcefully argued that the learned District Judge has wrongly returned the findings with respect to the possession in favour of the plaintiff whereas, the defendant was able to prove the physical possession over the suit land enjoying the mortgagee rights. He further argued that by no stretch of imagination, a person can be expected to purchase the mortgagee right qua the same land without the enjoyment of possession and further that the plaintiff cannot be the owner as well as the tenant of the same land. Therefore, the judgment and decree passed by the first appellate Court deserves to be set aside to the above extent and the judgment and decree passed by the trial Court may be restored. Contra, Shri Ankush Dass, learned counsel for the plaintiff has vehemently argued that the suit land was jointly owned and possessed by the plaintiff and his deceased brother Nathu. Since Nathu had mortgaged his share, it was an un-partitioned land and Nathu was not recorded in possession of any part thereof and the plaintiff was in possession of the entire suit land and recorded in the revenue record, therefore, it being a simple mortgage without possession and plaintiff came in possession of the share of his brother and was a non-occupancy tenant under the mortgagee against payment of rent. In the circumstances, the defendant Sant Ram alias Basant Ram mortgagee who is alleged to have sold the mortgagee rights with possession was not in actual possession of the suit land, therefore he could not have passed the better title than himself. While supporting the findings of the first appellate Court prayed for the dismissal of appeal. 10 I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously gone through the record. Since the above substantial questions of law requires the same discussion on law and facts, therefore taken up together for its just decision. The whole case hinges upon the factum of possession. If the entries in the remarks column of the jamabandi for the year 1967-68 (Ext. P2), are read with the entries in the column of ownership and possession, the position emerges that the plaintiff Basanta is recorded as the owner in possession of half share of the suit land and qua the another half as non-occupancy tenant under the mortgagees against rent as shown in column no. 9 of the said jamabandi, which means that the mortgagee (s) was/were not in possession of the suit land at any point of time. Sant Ram alias Basanta Ram who was recorded as the mortgagee was not reflected in possession of the suit land. He had sold his mortgagee rights to Sarwan vide mortgage deed Exhibit D1 executed on 21-11-1972 on the basis of jamabandi Ex. P2 for the year 1967-68 without specifying on which particular portion of the suit land he was in his possession whereas, the jamabandi aforesaid and the girdawaries Ext. P7 and P8 do not show him in possession in any part of the land aforesaid. Further, in Karyavahi Istemal Exhibit P4, the said mortgagee was not recorded any where in possession of the suit land. To rebut the presumption of correctness attached to the jamabandis, the defendant could not lead any cogent and convincing evidence. Besides examining himself, he has examined DW2 Longu, a Panchayat Chowkidar to prove the possession but according to him, Patwari never asked him about the possession of the land in dispute during recording girdawries. In contest to the above evidence, besides the statement of plaintiff, his witness Munshi Ram has stated about possession of the plaintiff over the suit land which supports the continuing entries of possession of the plaintiff 11 recorded in the revenue record referred above. In para 17, the learned trial Court has also held the plaintiff in possession. Therefore, in these circumstances, in my considered opinion the first Appellate Court has rightly affirmed the findings qua possession of the plaintiff over the suit land and these concurrent findings of fact cannot be interfered with in second appeal and the plaintiff can retain the possession unless he is evicted in due course of law Since the plaintiff has been held to be in possession of the suit land, therefore, the point of limitation would not come in his way to seek the declaration to remove the cloud on his title. Further in the circumstances stated above, I feel there is no bar to the plaintiff to hold his share in the suit land as the owner and another half as the non-occupancy tenant under the mortgagee. Further, the simple mortgage without delivering the possession of the mortgaged property can be created as per the provisions of Section 58 (b) of the Transfer of Property Act. In the above factual and legal scenario, there is no mis-reading of the ocular as well as documentary evidence on record. The above substantial questions are accordingly answered. No other point urged before me. For the foregoing reasons, I do not find any infirmity in the judgment and decree passed by the first appellate Court, therefore it requires no interference by this Court. The appeal is accordingly dismissed being devoid of any merit. Parties to bear their own costs. (Surinder Singh) Judge. Sept. 2, 2008. (bm)