C.R.No.5296 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.5296 of 2011 Date of decision: 1.9.2011 Dilbagh Singh and others ….Petitioners Vs. Mender Singh and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. V.K. Sandhir, Advocate for the petitioners. Jaswant Singh, J By filing the instant petition under Article 227 of the Constitution, petitioners/defendant Nos.2,3,5 & 6 have prayed for setting aside the impugned order dated 3.8.2011 (P.5) passed by learned Additional Civil Judge (Sr. Division), Tarn Taran whereby their application for amendment in the written statement has been dismissed. Brief facts of the case are that plaintiff-respondent No.1 herein son of Teja Singh filed a Civil suit No.119 dated 19.11.2002 for declaration to the effect that entry in the Jamabandi for the year 1994-1995 regarding mutation No.2443 to change ownership of father of the plaintiff-Teja Singh son of Massa Singh son of Wasawa Singh resident of Village Bhalojla Tehsil Khadur Sahib District Amritsar on the names of defendant No.1/respondent No.2 herein along with Kundan Singh (since deceased) son of Sher Singh to the extent of ¾ share in equal share and defendant Nos.4 & 6/respondent Nos.3 & 4 herein along with one Gurbhej Singh to the extent of ¼ share in equal shares in respect of the land as detailed in the head note C.R.No.5296 of 2011 #2# of the plaint on the basis of fake and fabricated decreed passed by learned Civil Judge (Jr. Divn.), Tarn Taran with a further prayer for permanent injunction restraining the defendants for ever from disposing off in any manner the said land by taking undue advantages and under the garb and colour of above wrong and illegal jamabandi entries on their names on the basis of aforesaid fake decree and to redeem the said land in favour of the plaintiff on payment of mortgage money of Rs.7000/-. Upon notice, the suit was contested by the defendants by filing written statement. Thereafter, an application dated 18.12.2009 under Order 6 Rule 17 CPC for amendment of the said written statement was filed by the defendants, which was also opposed by the defendants by filing reply (P.4) dated 5.4.2010. After hearing both the sides, the learned trial Court dismissed the application vide the impugned order, hence the present revision petition. Learned counsel for the petitioners argues that the impugned order passed by the learned trial Court is wholly erroneous and not sustainable in the eyes of law as the amemdnment sought in the written statement was necessary for proper adjudication of the controversy. It is further argued that at the time of filing the written statement, the mortgage deed dated 29.7.1964 was not available with the present petitioners but now on obtaining the certified copy of the said deed, it is clear that the period of redemption was fixed as two years, which has already lapsed and the plaintiff-respondent No.1 had no right to file the suit. After hearing learned counsel for the parties and perusing the paper book, this court does not find any merit in the petition and the same deserves dismissal. C.R.No.5296 of 2011 #3# It is necessary to reproduce Para Nos.2 to 6 of the earlier written statement, which read as under: “2. Para No.2 of the plaint is correct and its Sub paras (1 to 8 are also not denied. 3. Thar Para No.3 of the plaint is admitted to this extent only that Teja Singh mortgager has died. It is denied that the plaintiff is his son and that he is entitled to his inheritance. He is put to strict proof. The answering defendants do not know him. It is correct that neither Teja Singh mortgager himself nor any of his legal heirs redeemed the suit land during the prescribed period of limitation under the law of limitation, which is thirty years from the date of mortgage. 4. That para No.4 of the plaint is denied. It is denied that the plaintiff is permanent resident of Malaysia and that he came to India in the month of March 2002. The answering defendants do not know the plaintiff. It is denied that he approached to the answering defendants as alleged. Teja Singh mortgaged the suit land on 29.7.1964. The mortgagor was entitled to redeem the mortgaged land in the month of any Chet on payment of the mortgage amount. Neither the mortgagor nor any of his legal heirs got the suit land redeemed within the prescribed period of limitation i.e thirty years as such on the expiry the said period of limitation right of the mortgagor to get the possession of the suit land stood extinguished and the mortgagees of the land became its owner by efflux of time. The mortgagor could redeem the land upto the month of Chet falling in the year 1995 and on the expiry of the last day of the month of Chet falling in that year the rights of the mortgagor and his successors to get the possession of the suit land stood extinguished. Thus the said Guro. Kundan Singh and Inder Singh became the owners of the land by efflux of time. Even if it is proved that the plaintiff is the son of Teja Singh and that he came to India in the yeart 2002 then also his right to redemption stood barred by the law of limitation at that time. 5. That para No.5 of the plaint is denied. It is denied that the plaintiff came to India on 2.10.2002 and that he made any C.R.No.5296 of 2011 #4# alleged request. The detailed reply given in para 4 be also treated as reply to this para of the plaint and the same is affirmed. The mortgagor lost the right to redeem the suit land on the expiry of the last day of the month of Chet falling in the year 1995. The answering defendants have no knowledge regarding the approaching of the plaintiff to the Patwari. The alleged story mentioned in this para of the plaint is denied. It is correct that the mutation of transfer of ownership on the basis of Civil Court decree dated 1.8.1998 passed by Shri J.K. Matoo the then Civil Judge Tarn Tatan was sanctioned and has been reflected in the revenue record. It is denied that the said decree dated 1.8.1998 is a fake and fabricated document. It is denied that late Kundan Singh and the defendant had any malafide intention to grab the land. It is denied that they forged any decree. The decree has been passed by the competent court and the mutation on its basis has been rightly sanctioned. It is mentioned here that Kundan Singh, Guro mortgagees and successors of Inder Singh mortgagee became owner of the said mortgaged land with them on the expiry of the last day of the month of the Chet falling in the years 1995. The prescribed period of limitation for filing the suit for possession through redemption is thirty year and the mortgagor did not exercised this right during the said period. Thus at the determination of the said period limited under the law for the mortgagor for instituting the suit for possession by redemption, this right to the mortgaged property stood extinguished. Teja Singh mortgagor and his family were residing outside the village and none of their family was living in the village. Kundan Singh deceased and defendants No.1 to 6 came to know that the names of the sons of Teja Singh are Ajit Singh, Swaran Singh and Joginder Singh and they on their said information in good faith filed suit No.399 on 1.10.96 against the said sons of Teja Singh for declaration that they had become owners of the suit land as it was by its mortgagor from them within the period of prescribed under the law. Their last known Besakh given and after due service they did not C.R.No.5296 of 2011 #5# proceeded ex parte and the said suit was decreed (not legible) on 1.8.1998 and on its basis the mutation of transfer of ownership was rightly sanctioned. In case any wrong name of sons of Teja Singh was given in the said suit then also it was not a malafide act but the names were given on the basis of information received. The said mortgagees of the land had become owners of the suit land prior to the filing of the said suit. 6. That para No.6 of the plaint is denied. It is denied that the said mutation and the entry of jamabandi for the year 1994- 1995 are wrong. The jamabandi for the year 1999 and 2000 is the last jamabandi in force at the time of filing this suit. Each and every fact against the said decree dated 1.8.1998 are specifically denied and the allegations of this para are sheer repetition of the facts pleaded in para 5 above. The detailed reply given in para No.8 is reiterated here and the same be treated as answer of this para of the plaint also. The judgment and decree is perfectly valid. Even if the learned court find any technical defect in the said decree then also as pleaded in para No.5, the mortgagor lost his right to file a suit for possession through redemption as per the law of limitation and on the expiry of the last day of the month of the chet falling in the year 1995, as such his rights in the land stood extinguished and the defendants have become the owners of the suit land since the day of Besakh of the year 1995.” Following amendment has now been sought to be incorporated in para Nos.2 to 6 of On Merits in the written statement: “In Para 2 : The period of redemption as per the terms of the mortgage deed is two years. In para No.3: Plus the period of redemption of two years mentioned in the mortgage deed. In para No.4: According to the terms and conditions of the mortgage deed the period of redemption is two years and there after the mortgagor was entitled C.R.No.5296 of 2011 #6# to redeem the land on payment of the mortgage money in the month of Chet. In para No.5: Year “1997” in stead of “1995” In para No.6: According to the terms and conditions of the mortgage deed the period of redemption is two years and thereafter the mortgagor was entitled to redeem the land on payment of the mortgage money in the month of Chet”. Plaintiff-respondent No.1 opposed the abovesaid amendments stating that the original mortgage deed was with the mortgagees but a photo copy of the said mortgage deed dated 29.7.1964 was given to him, which clearly shows that there is no period of redemption provided in the mortgage. It was stated that in the photo copy it is clearly mentioned that “MIAD KOE NAHI HAI” whereas the same has apparently been changed in connivance with the officials. It was further pointed out that even in a criminal case pending before the learned trial Court titled as State v. Amrik Singh and others U/s 420/467/468/471 IPC, a copy of said mortgage deed dated 29.7.1964 was taken on record signed by the Registrar, which also shows that there is no period prescribed in the mortgage deed for redemption. A perusal of the paper book reveals that the Civil Suit was filed in the year 2002 and after a lapse of about 9 years, case is still at the stage of filing written statement. In case the proposed amendment is allowed, the same will change the nature of the case and that would amount to de novo trial. In my opinion, learned trial Court has not committed any illegality and rightly observed that the question whether the period of two years was prescribed for redemption of the land or whether the land can be C.R.No.5296 of 2011 #7# redeemed within the period of 30 years is a question of pure construction of document irrespective of the fact whether said period has expired or not. It shall be taken into consideration at the time of adjudication with regard to the period of redemption of the mortgage, as to when did it expire. Keeping in view the facts and circumstances discussed hereinabove, this Court finds no illegality or perversity in he impugned order dated 3.8.2011 (P.5) passed by learned Additional Civil Judge (Sr. Division), Tarn Taran below warranting interference under Article 227 of the Constitution. Dismissed. September 01, 2011 ( JASWANT SINGH ) manoj JUDGE