1 sa-363-2010.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srj SECOND APPEAL NO.363 OF 2010 Shri Ramesh Baban Tupe & Others .. Appellants V/s. Shri Popatrao @ Divakar J.Khilare & Others .. Respondents. Shri N.V.Walawalkar, Sr.Counsel i/b. Shri Ashok Tajane, for Appellants. Shri P.K.Dhakepalkar and Shri A.A.Kumbhakoni, Sr.Counsel i/b Shri S.R.Ganbavale, for Respondents. CORAM:- B.R.GAVAI, J. DATED:- 25th AUGUST,2010. P.C. 1 The present Second Appeal arises out of the order dated 7th April, 2007 passed by 9th Jt.Civil Judge Senior Division, Pune in Regular Civil Suit No.1874 of 2006 and thereby rejecting the plaint in the suit filed by the present Appellants and the order dated 30th September, 2009 passed by the learned District Judge-6, Pune, thereby dismissing the Appeal No.309 of 2007. 2 sa-363-2010.sxw 2 Regular Civil Suit No.1874 of 2006 came to be filed by the present Appellants for redemption of mortgage and possession of the suit land. In the said suit, an objection came to be filed by the Respondents under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (herein after referred to as the said Code ), contending therein that the suit has been instituted without there being any cause of action, that it was not tenable in view of provisions of Order 2 Rule 2 of the said Code, that it has not been filed within limitation and that the Court had no jurisdiction to entertain the same. After hearing the parties, the learned trial Judge upheld the objection raised by the Respondents and rejected the plaint. Being aggrieved thereby, an appeal was preferred by the present Appellants. The same has also been dismissed. Hence, the present Second Appeal. 3 Shri Walawalkar, learned Sr. Counsel appearing on behalf of the Appellants submits that both the courts below have erred in allowing the objection of the Respondent, rejecting the plaint and dismissing the appeal. He submitted that issue of limitation could not 3 sa-363-2010.sxw have been considered at this stage and unless the suit proceeded for trial, an issue with respect to the limitation, could not have been decided by the Trial Court. He further submitted that on merits also, both the Courts below have erred in holding that the suit was barred by law of limitation. He further submitted that the mortgage in question was usufructus mortgage and as such no limitation was applicable. In support of this proposition, he relied upon the judgment of the Apex Court in the case of Harbans v/s. Om Prakash and Others (A.I.R. 2006 S.C.686). He further submitted that both the Courts below have also erred in holding that the suit was not maintainable in view of provisions of section 85 of the Bombay Tenancy and Agricultural Land Act, 1948 (herein after referred to as the said Act ). He submitted that the Courts below ought to have considered that in view of section 85(A) of the said Act, the Trial Court could have referred the issue of tenancy to the competent authority and till decision of the said issue, postponed the hearing of the said suit. He further submitted that the findings of the Courts below regarding the applicability of Order 2 Rule 2 of the Code are also not sustainable inasmuch as 4 sa-363-2010.sxw the earlier suits were filed on different cause of action. 4 Shri Dhakepalkar, learned Sr.Counsel appearing on behalf of the Respondents on the contrary submits that upon reading the plaint as it is, it would reveal that the plaint did not disclose any cause of action and as such the learned trial Court has rightly rejected the plaint. He submitted that it was clear from the mortgage deed that the Plaintiffs were entitled to redeem the mortgage from day one and as such the limitation for filing the suit for redemption will be only 30 years. He submitted that since the suit was not filed within the period of 30 years, the plaint was rightly rejected. The learned counsel relied upon the judgment of the Apex Court in the case of Sampuran Singh and others v/s. Smt. Niranjan Kaur and others reported in AIR 1999 SC-1047. 5 For considering the claim of the Plaintiffs, it will be necessary to refer to certain factual aspects. The Plaintiffs are claiming to be legal heirs of Laxmi A. Tupe and Kisan A.Tupe who had registered the mortgage deed executed on 15th October, 1928 in respect of the suit land 5 sa-363-2010.sxw in favour of Smt. Kashibai A. Khilare as security for an amount of Rs.1,000/-. From the perusal of the recital of the mortgage deed it would reveals that the mortgagor had agreed to repay the amount within the period of two years. By the said mortgage deed, the suit land was given in possession of the mortgagee and right to cultivate the said land was also given. The net income from cultivation was to be adjusted towards amount payable by the mortgagor. It is also stated in the mortgage deed that if the amount is not repaid within the period of two years, the mortgagee would be entitled to recover the amount by selling the land through the Court. The Apex Court in the case of Sampuran Singh (supra) has held that the period of limitation for redemption of mortgage starts from the very first day of the valid mortgage unless any restrain is provided in the mortgage deed itself. In the present case also from the recital in mortgage deed, it can be seen that the mortgagor had right to redeem the mortgage from the very first day of the mortgage. There is nothing in the mortgage deed which would prohibit the mortgagor from redeeming the mortgage. In view of the decision of the Apex Court in the case of Sampuran Singh (supra) and 6 sa-363-2010.sxw so also the recital in the mortgage deed, I am of the considered view that the mortgagor had right to redeem the mortgagee from the very first day of the mortgage and as such the suit that was filed by the Plaintiffs was filed much beyond the prescribed limitation. So far as reliance placed by the learned counsel for the Appellants on the judgment in the case of Harbans (supra) is concerned, the same would not be applicable to the facts of the case. In the said case upon the facts considered by the Apex Court, it was found that no evidence was laid to show that mortgage was for a fixed period and as such no limitation applied for redeeming the property. The facts in the present case are totally different. In the mortgage deed executed between the parties to the present suit, it is specifically provided that the mortgage would be redeemed within a period of two years and in case if not redeemed within the period of two years, the mortgagee had right to get the sale deed executed through Court and appropriate amount towards principal and interest. I am of the considered view that the learned Courts below have not committed any error in coming to the conclusion that the suit for redemption of mortgage deed dated 15th October, 7 sa-363-2010.sxw 1928 filed in the year 2006 was beyond limitation. The only cause of action given in para 13 of the plaint is that since the Plaintiffs came to know in the year 2004 about the judgment and order passed in tenancy case, the said fact constituted cause of action. The issue as to whether the tenant in suit land had become owners by operations of statute i.e. Bombay Tenancy and Agricultural Land Act, 1948 was not at all germane insofar as question regarding redemption of mortgage is concerned. The said issue is totally different. 6 Insofar as contentions of Shri Walawalkar to the effect that the Trial Court in stead of dismissing the suit on the ground of section 85 the said Act, ought to have referred the issue of tenancy to the competent authority and till then postponed the hearing of the suit is concerned, in this respect, it is pertinent to note that the Appellants themselves have initiated the proceedings, challenging the order dated 31st July, 1963 in tenancy case no.ALT/Hadapsar/ III/195/1963 before the Sub Divisional Officer, Pune. The said appeal is dismissed and against that appeal,they have preferred Revision before 8 sa-363-2010.sxw the Maharashtra Revenue Tribunal. When the validity of the certificate issued under section 35-M of the Bombay Tenancy Act was pending before the competent authority and when in view of the provisions of section 85 of the said act, Civil Court had no jurisdiction to go into the question of validity of the said certificate, no error could be found with respect to the said contention also. In that view of the matter, no merit is found with respect to the said contention. 7 From the perusal of the plaint itself, it is revealed that the Plaintiffs in para 11, have stated that they have filed Regular Civil Suit No.1576 of 2007 in respect of survey no.168/5 for declaration and permanent injunction and have also filed another Regular Civil Suit No.1744 of 2005 in respect of the said land being survey no.183/4 against the Defendants. It is stated in the plaint that the Plaintiffs wants to withdraw the said suit. On perusal of the claims made in the earlier two suits and the present suit, it reveals that the claim made by the present Appellants in the present suit could have very well been claimed in the earlier two suits. As such, 9 sa-363-2010.sxw no error could be found with the order of Courts below that the suit is not maintainable in view of the Order 2 Rule 2 of the said Code. 8 As such, no infirmity can be found with the orders passed by the Courts below. No substantial question law arises. Hence, Second Appeal is dismissed. (B.R.GAVAI,J.)