IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 147 of 1999 along with RSA No. 377 of 1999. Judgment reserved on : 07.3.2011. Date of decision: 07.04.2011. _______________________________________________________ 1. RSA No. 147 of 1999. Nathu Ram. ….. Appellant. Versus Ram Nath and Ors. …. Respondents. _________________________________________________________ For the Appellant : Mr. Balwant Singh,Advocate, vice Mr. K.D.Sood, Advocate. For the Respondent : Mr. Ajay Sharma,Advocate. No.1. For the Respondents : Mr. Rajnish K.Lall,Advocate. 2(a) & 2(b). _______________________________________________________ 2. RSA No. 377 of 1999. Onkar Singh & Ors. ….. Appellants. Versus. Ram Nath & Anr. ….Respondents. _______________________________________________________ For the Appellants : Mr. Rajnish K.Lall, Advocate. For the Respondent No.1 : Mr. Ajay Sharma, Advocate. For the Respondent No.2 : Mr. Balwant Singh, Advocate, Vice Mr. K.D.Sood, Advocate. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No Kuldip Singh, Judge . This judgment shall dispose of RSA No. 147 of 1999 and RSA No. 377 of 1999, arising out of judgment, decree dated 14.01.1999. In RSA No. 147 of 1999 the defendant No.2 has Whether the reporters of the local papers may be allowed to see the Judgment? Yes assailed judgment, decree dated 14.01.1999, passed by learned District Judge, Kangra in Civil Suit No. 48-J/XIII-1997 reversing judgment, decree dated 31.03.1997 passed by learned Sub Judge Ist Class, Jawali, in Civil Suit No. RBT 1135/95/89. The defendant No. 1 Falatu Ram has filed RSA No. 377 of 1999 against judgment, decree dated 14.01.1999. 2. The suit was filed by respondent No.1 against defendant No. 1 Falatu Ram, who is now survived by respondents No. 2(a) and 2(b). In the suit, appellant Nathu Ram was impleaded defendant No.2 when his application under Order 1 Rule 10 CPC was allowed. The further facts, in brief, are that the respondent No.1 claiming himself as mortgagor against subsequent mortgagee filed suit for possession by redemption on payment of `100/- as redemption money for the land to the extent of 1/6th share of land comprised in khasra No. 73, measuring 2-25-77 H.M., Mohal Ban Fatehpur, Mauza Fatehpur, Tehsil Jawali. 3. The respondent No.1 projected the case that he mortgaged his mortgagee rights in aforesaid 1/6th share in the land on 18.03.1962/21.05.1962 for ` 100/- to Falatu Ram and claimed himself as mortgagor of mortgagee rights in the suit land. Falatu Ram, defendant No.1, had been avoiding to receive ` 100/- mortgage amount and therefore the suit was filed for redemption. 4. The suit was contested by Falatu Ram and Nathu Ram by filing separate written statements. The respondent No.1 filed replications to the written statements of Falatu Ram and Nathu Ram and reiterated his stand. On the pleadings of the parties, the following issues were framed:- 1. Whether the mortgagee rights were mortgaged in favour of defendant No.1 on 21.05.1962, as alleged? OPP. 2. If issue No.1 is proved, whether the plaintiff is entitled to redeem suit land on payment of ` 100/- as alleged? OPP. 3. If issue No.1 and 2 are not proved, whether the defendant No. 1 has become owner by afflux of time, as alleged? OPD-1. 4. Whether the Civil Court has no jurisdiction to try and entertain the present suit as alleged ? OPD-1. 5. Whether the plaintiff has no locus-standi to file the present suit, as alleged ? OPD-1. 6. Whether the suit of the plaintiff is time barred, as alleged? OPD-2. 7. Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD. 8. Whether the plaintiff is estopped to file the present suit by his own act and conduct, as alleged? OPD-2. 9. Whether the defendant No.2 had got redeemed the land in suit on 18.3.1962, as alleged? If so its effect ? OPD-2. 10. Whether the defendant No.2 had purchased the suit land as alleged? OPD-2. 11. If issue No.10 is not proved, whether the defendant in the alternative has become owner of the suit land by way of adverse possession, as alleged? OPD-1. 12. Relief. 5. The issues No. 2,3,4,6,7 and 8 were answered in negative, issues No.5 and 10 in affirmative, issues No.1,9 and 11 were disposed of as discussed and the suit was dismissed on 31.03.1997. 6. The judgment, decree dated 31.03.1997 were assailed by Ram Nath in appeal which was allowed by learned District Judge on 14.01.1999. Nathu Ram defendant No.2 filed RSA No. 147 of 1999 and Falatu Ram defendant No.1 filed RSA No. 377 of 1999. RSA No. 147 of 1999 has been admitted on following substantial questions of law:- 1. Whether the Court below has misconstrued Sections 16 and 91 of the Transfer of Property Act and has rightly held the plaintiff/respondent to be the mortgagee in possession entitled to redeem the same? 2. Whether in view of the fact that the appellant was proved to be in possession of the property from 1962 onwards and was also recorded so in the Jamabandi for the years 1984-85 and 1988-89 and the admission of the plaintiff in that behalf and the fact that the appellant had purchased the property in 1989 from the previous owner Balbir Singh, the suit for redemption was maintainable in the absence of mortgage being proved in his favour? 3. Whether the oral mortgage of the value of ` 100/- was permissible and did not require registration? 4. In view of the fact that no relief had been claimed against the plaintiff (sic appellant) in the plaint the suit of the plaintiff could be decreed against the appellant? 5. Whether the Court below has misconstrued the pleadings of the parties and oral and documentary evidence and has drawn wrong inference in holding that the plaintiff was mortgagee and entitled to redeem the property on payment of `. 100/-? RSA No. 377 of 1999 vide order dated 08.11.1999 has also been admitted on the aforesaid substantial questions of law and was connected with RSA No. 147 of 1999. Falatu Ram died during the pendency of second appeals and his legal representatives were brought on record in both the appeals. 7. I have heard learned counsel for the parties in both the appeals and have also gone through the record. On behalf of the appellants, it has been submitted that learned District Judge has mis- construed Sections 16 and 91 of the Transfer of Property Act and has erred in returning the finding that the respondent No.1 is entitled to redeem the suit land. The appellant Nathu Ram has proved his possession on the suit land since 1962 onwards and his possession as such has been recorded in jamabandies for the years 1984-85 and 1988-89. Nathu Ram has purchased the suit land from previous owner Balbir Singh in the year 1989 and, therefore, suit for redemption is not maintainable. The question has also been raised that oral mortgage of the value of ` 100/- was not permissible. The pleadings, oral and documentary evidence have been mis- interpreted. The suit could not have been decreed against appellants. The learned counsel for Ram Nath in both appeals has supported the impugned judgment, decree and has submitted that learned District Judge has rightly decreed the suit of the respondent No.1 by reversing the judgment, decree dated 31.03.1997 of the Trial Court which was not based on proper appreciation of facts and law. 8. The substantial questions of law 1, 2, 4 and 5 are inter- connected and, therefore, all of them are taken collectively for determination. The respondent No.1 in the plaint has pleaded that he is the mortgagor and Nathu Ram is the mortgagee of the land in dispute for a sum secured ` 100/-. Nathu Ram is in possession of mortgagee rights as subsequent mortgagee and respondent No.1 has right to redeem the mortgagee rights. Falatu Ram in his written statement had taken the plea that respondent No.1 was mortgagee with possession, he transferred his mortgagee rights vide mutation No. 204 dated 21.05.1962 and left with no title or interest in the suit land. The original mortgagor Balbir Singh lost his right of redemption of the suit land by afflux of time. The sale of land by Balbir Singh in favour of Nathu Ram is null and void since at that time Balbir Singh had no title to pass the land in favour of Nathu Ram. The respondent No.1 was not mortgagor, he was simply mortgagee and he transferred his mortgagee rights with possession in favour of Falatu Ram in the year 1962. 9. Nathu Ram took the stand and denied that Falatu Ram was in possession of mortgagee rights. He has also denied right of respondent No.2 to redeem the land. Nathu Ram took the stand that he is in possession of the suit land from very beginning. The suit land is part of khata in which Nathu Ram is in exclusive possession of 5/6th share and as mortgagor of 1/6th share. Falatu Ram is shown mortgagee ‘Doyam’ and respondent No.1 as mortgagee ‘Awal’. In fact, Nathu Ram had purchased 1/6th share from previous owner Balbir Singh in the year 1989. There was an agreement of sale of 1/6th share with Nathu Ram by previous owner Rodi Devi prior to execution of the sale deed in the year 1989. Nathu Ram had paid ` 1,000/- to Falatu Ram in the year 1962 for redemption of land as there was an agreement between previous owner and Nathu Ram for sale of the land. Nathu Ram had paid ` 1,000/- to Falatu Ram for redemption of land from respondent No.1 and that was paid to respondent No.1 on 18.03.1962 for redemption through Falatu Ram. The respondent No.1 and Falatu Ram in connivance with each other got mutated mortgagee rights in favour of Falatu Ram. In fact, mortgage was already redeemed in the year 1962 and only fictitious entries are existing in the revenue record for mortgagee and mortgagor. Nathu Ram had purchased the land in the year 1989 free from any encumbrance. Nathu Ram is in possession as owner of the suit land. In alternative, he claimed adverse possession on the suit land from 12.10.1934. 10. PW1 Ram Nath has stated that his father had purchased mortgagee rights of the land in dispute. After the death of his father and mother, he became mortgagee. In the year 1962, he mortgaged his mortgagee rights to Falatu Ram for a consideration of ` 100/- and mutation to this effect was also attested. He wants to redeem the land. 11. DW1 Falatu has stated that the land in dispute was mortgaged with the father of respondent No.1 in the year 1951 for ` 200/-. In the year 1962, the respondent had received ` 200/- from him and relinquished his right in the land. He paid ` 200/- to Rodi, Mehar Chand and Sadhu Ram. The respondent No.1 has no right, title in the land. Nathu Ram in his statement has no where stated that he has purchased the suit land. In the written statement, Falatu Ram has taken no such plea that respondent No.1 after receiving `.200/- mortgage money from Falatu Ram has relinquished his right in the suit land. In the written statement, Falatu Ram has taken the plea that respondent No.1 transferred his mortgagee rights vide mutation dated 21.05.1962 and, therefore, he had left no right in the suit land. The stand of Falatu Ram regarding relinquishment of mortgagee rights by respondent No.1 is contradictory and cannot be accepted. 12. Nathu Ram has also been shown in the trial Court as DW1. Nathu Ram in his examination-in-chief has not stated that he purchased the suit land in the year 1989. But in cross-examination he has stated that he got the registry done in the year 1989, but no such sale deed has been placed on record by him. Nathu Ram in his statement has stated that he had paid `1,000/- to Falatu Ram in the year 1951, whereas, in the written statement, he has taken the stand that `1,000/- were paid to Falatu Ram in the year 1962. The plea of Nathu Ram that he had paid ` 1,000/- to Falatu Ram for redemption of land cannot be believed in view of his contradictory stand on the point. Nathu Ram has not proved the sale of the land in question in his favour by the owner. 13. The respondent No.1 has proved on record that he had mortgaged his mortgagee rights to Falatu Ram. Section 91 of the Transfer of Property Act provides that besides the mortgagor, any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in or charge upon the property mortgaged or in or upon the right to redeem the same may redeem or institute a suit for redemption of the mortgaged property. The status of Falatu Ram was of a subsequent mortgagee and respondent No.1 was that of a mortgagor. In addition, suit against Falatu Ram was competent under Section 91 of the Transfer of Property Act. 14. Nathu Ram got himself impleaded in the suit by filing an application which was allowed. Therefore, Nathu Ram cannot be heard to say that no relief was prayed against him in the suit, therefore, suit against him could not be decreed. This plea of Nathu Ram is too technical. The prayer made in the plaint after the impleadment of Nathu Ram in the suit at his instance will be read against Nathu Ram also , more particularly, when he contested the suit and filed the written statement. The appellants have not elaborated how the suit is not maintainable under Section 16 of the Transfer of Property Act nor have the appellants shown how the learned District Judge has mis-construed the pleadings, oral and documentary evidence. It is not the case of the appellants that inadmissible evidence has been considered and relevant evidence has been ignored. The substantial questions of law 1,2, 4 and 5 are decided against the appellants. 15. In the plaint, it has been pleaded that sum secured for the mortgage was ` 100/-. The date of mortgage has been pleaded 18.03.1962/21.05.1962. It has not been shown by the appellants that at the relevant time for mortgage of ` 100/- , registration was necessary for creating the mortgage. There is no specific objection in the written statements of the appellants that mortgage securing a sum of `100/- required registered deed at the relevant time nor there is an issue to this effect. In the impugned judgment notification dated 26.03.1955 of State of Punjab extending the provisions of Sections 54, 107 and 123 of the Transfer of Property Act with effect from 01.04.1955. has been noticed. The land in question was in Punjab State before the re-organization of State of Punjab in the year 1966. The appellants have not shown that at the time of mortgage in question, Section 59 of the Transfer of Property Act was also made applicable in the State of Punjab. The appellants have failed to establish that at the relevant time oral mortgage securing sum of ` 100/- was not permissible. The substantial question of law No.3 is decided against the appellants. 16. In view of above, both the appeals are dismissed. No costs. April 7th, 2011 (Kuldip Singh), ( krt) Judge.