IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.814/2003 Reserved on:22.7.2008 Decided on:25.8.2008 Jaimal and others. …Petitioner. Versus State of H.P. and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the petitioners : Mr. Sanjay Jaswal, Advocate. For the Respondents : Mr. Rajinder Dogra, Additional Advocate General for respondents No.1,2 and 2(A). Mr. Janesh Mahajan, Advocate for respondents No.3 and 4. Rajiv Sharma, J. The brief facts necessary for the adjudication of this petition are that respondents No.3 to 5 are the mortgagors and the petitioners are the mortgagees. Respondents No.3 to 5 submitted an application under section 4 of the Himachal Pradesh Restitution of Mortgaged Land Act, 1976 before the Collector, Sub Division, Dalhousie on 13.12.1983 for the restoration of mortgaged land measuring 8 bighas and 17 biswas situated in Mohal Tika, Khewat No.45, Khatauni No.90, Khasra Nos. 956, 957 and 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 958. According to the mortgagors, they had mortgaged the land on 24.12.1953 against a sum of Rs. 60/-. The application preferred by respondents No.3 to 5 was dismissed by the Collector, Sub Division, Dalhousie on 19.1.1987. They filed an appeal before the learned Divisional Commissioner Kangra Division on 24.3.1987/25.3.1987. The appeal was accepted by the Divisional Commissioner Kangra Division on 4.8.1988. The order dated 19.1.1987 was set aside. The petitioners filed an appeal against the order of the Divisional Commissioner Kangra Division before the Financial Commissioner (Appeals) on 28.6.1989. The appeal was dismissed by the learned Financial Commissioner (Appeals) on 12.8.2002. The present petition has been preferred against the order dated 12.8.2002 passed by the learned Financial Commissioner (Appeals). Mr. Sanjay Jaswal, Advocate had strenuously argued that the application preferred by respondents No.3 to 5 was not within the period of limitation. According to him, the application was to be filed within 30 years from the date of entry made in Tankiat and not from the date when the mutation was attested on 24.12.1953. Mr. Rajinder Dogra, Additional Advocate General and Mr. Janesh Mahajan, Advocate appearing on behalf of contesting defendants had argued that the period of limitation is to be counted from the date of attestation of mutation i.e. 24.12.1953. According to them, the application preferred by respondents No.3 to 5 on 13.12.1983 was within limitation. I have heard the learned counsel for the parties and perused the record carefully. It is evident from Annexure P-1 i.e. copy of jamabandi for the year 1977-78 that the petitioners have been recorded as mortgagees of land measuring 8 bighas and 17 biswas situated in Mohal Tika, Khewat No.45, 3 Khatoni No.90, Khasra Nos. 956, 957 and 958. Annexure P-2 is the copy of register of Tankiat (revenue paper) in respect of Mauza Kamla, Pargana Sinhuta, Tehsil Bhatiyat, District Chamba, H.P. It is evident from Annexure P-2 dated 5.5.1953 that decision regarding mortgage and possession was to be made through mutation. It is clear from Annexure P-3 that Sh. Mingo Ram had stated that he had mortgaged and handed over the possession of the land mentioned in khata No.11 to Niku etc. against Rs. 60/- and the same has been entered in the register. This entry is dated 23.12.1953. Thereafter the mutation was attested on 24.12.1953. The entry made on 24.12.1953 reads thus: “In open gathering Sh. Goving Singh, Mingo and Jaimal and Rumi, the mortgagor vendor and mortgagee/vendee respectively duly identified, acknowledge and verify the mortgage of land against Rs.60/- and transfer of possession of land vide mutation No.5. Therefore, the said mortgage and possession of land comprising khasra No. 956, 957 and 958, kitas3, measuring 8-17 bighas of Govind Singh and Mingo has been sanctioned in favour of Niku, Sahvnu, Jaimal and Maheso in equal shares in half share and Rumi in half share against Rs. 60/-.” The application for redemption has been preferred by respondent No.3 to 5 on 13.12.1983. It has been filed within 30 years. The mortgage was done when the mutation was attested on 24.12.1953 and the proceedings before that were only in the nature of negotiation/agreement. The Collector, Sub Division, Dalhousie has erred in law by not taking into consideration the mutation No.7 dated 24.12.1953. The period of limitation was to run from the date of mutation i.e. 24.12.1953 and not on the basis of the entries made in Tankiat. The learned Divisional Commissioner Kangra Division has rightly relied upon the mutation 4 attested on 24.12.1953 while determining the period of limitation. The Financial Commissioner (Appeals) has upheld the decision of the Divisional Commissioner Kangra Division by relying upon the mutation sanctioned on 24.12.1953. There is neither any jurisdictional error nor any procedural irregularity in the orders passed by the Divisional Commissioner Kangra Division and Financial Commissioner (Appeals). Mr. Sanjay Jaswal has relied upon Annexure P-2 to buttress his submission that the period of limitation be taken from the date of entry made in Tankiat and not as per mutation No.7 attested on 24.12.1953. As noticed above, even in Annexure P-2, the endorsement has been made that the decision regarding mortgage and possession shall be made through mutation. This endorsement was made on 5.5.1953. The mutation was attested in the presence of mortgagor/vendor and mortgagee/vendee on 24.12.1953. The statement of Mingo Ram was recorded on 23.12.1953 to the effect that he has mortgaged and handed over the possession of land mentioned in khata No.11 to Niku etc. against Rs. 60/-. The application has been preferred on 13.12.1983. The same was within 30 years from the date of attestation of mutation No.7 on 24.12.1953. Their Lordships of the Hon’ble Supreme Court in Lachhman Singh (Deceased) through legal representatives and others versus Hazara Singh (deceased) through legal representatives and others, 2008 (8) Scale 220 have held that where the actual date of execution of the deed of mortgage was not known to the plaintiffs-respondents, however, the mortgaged properties were mutated in the name of the mortgagees on or about 19.3.1913, the suit may be held within prescribed period of limitation. Their Lordships have held as under: 5 “A transaction of mortgage in respect of the suit property measuring 58 kanals 11 marlas was entered into by and between the predecessors in the interest of the parties herein. The actual date of execution of the deed of mortgage was not known to the plaintiffs- respondents. However, the mortgaged properties were mutated in the name of the mortgagees on or about 19.3.1913. It appear that before the High Court also, an application for adduction of additional evidence was filed. No order thereupon was passed. Respondents, in our opinion, have made out a case for adduction of additional evidence. It was stated that the mortgage deed was registered in the year 1913 in the District of Lahore. As it is a registered document, this Court in a situation of this nature, keeping in view the findings of the courts below, should allow the said application. There cannot be any doubt whatsoever that the court should be loathed to entertain such an application but the respondents have herein made out adequate grounds therefore. The jurisdiction of the Appellate Court is to be exercised not only when clause (a) or clause (aa) of sub- rule (1) of Rule 27 of Order 41 of the Code is attracted but also when such a document is required by the appellate Court itself to pronounce judgment or for any other substantial cause. If what the respondents contended is correct, namely, the mortgage was executed in 1913, the period of limitation having been prescribed under the old Limitation Act, namely, 60 years being the period of limitation having regard to the provisions of the new Limitation Act, the suit could be filed within a period of seven years from 1.1.1964, i.e. upto 1.1.1971. As the suit was filed on 30.12.1970, it may be held to be within the prescribed period of limitation.” 6 Consequently, in view of the observations made hereinabove, there is no merit in this writ petition and the same is dismissed. There shall be no order as to costs. 25.8. 2008 (Rajiv Sharma ), J. *awasthi*