Smt. Rajabeti vs Smt. Shkun Yadav
2022 Latest Caselaw 1344 MP

                                      1




HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR


                      Second Appeal No. 1436 of 2021
                          Smt. Rajabeti and others
                                   -Vs-
                       Smt. Shakun Yadav and Others


                             **************
For the appellants:       Mr. Avinash Zargar, Advocate
For the respondents:      Mr. Aditya Veer Singh, Advocate
                             **************
PRESENT
    HON'BLE SMT. JUSTICE ANJULI PALO
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                      JUDGMENT

(31/01/2022)

This second appeal under Section 100 of the Code of

Civil Procedure has been filed by the appellants/defendants being

aggrieved by the judgment and decree dated 27.09.2021 passed by

learned 1 st Additional District Judge, Nowgaon, district- Chhatarpur

whereby the judgment and decree dated 28.01.2011 passed by 2 nd

Civil Judge, Class-II, Nowgaon, district- Chhatarpur in Civil Suit

No.78-A/2009 has been reversed.

2. The plaintiff- Munni Lal filed the civil suit against the

defendant No.2 seeking the relief of redemption of mortgage deed

dated 22.01.1951 as well as possession of the disputed land on the

ground that he purchased the land bearing khasra numbers 265, 266,

267, 268, 269 and 270 from one Chhutiyan and the lands bearing

khasra numbers 265, 266 and 267 were mortgaged with the defendant

No.2/appellant. As per the pleadings made in the plaint, land bearing

khasra numbers 265, 266, 267 and common land of khasra number

268 in which a well is situated, 269 and 270 are ancestral property of

the defendant No.1- Chhutiyan. It is admitted fact that land bearing

khasra numbers 265, 266 and 267 and common land of kh No.268

were mortgaged by registered deed dated 22.01.1951 by Chhutiyan

for Rs.200/- before Anantram and the present appellants are

successors of said Anantram Yadav. It is pertinent to mention here

that the condition of mortgage deed was that the said mortgage was

for 12 years and the owner of the land can redeem after making

payment of mortgage.

3. However, after expiry of 12 years, Chhutiyan who

executed mortgage deed has not taken any recourse for redemption

and he sold the entire land i.e. khasra numbers 265 to 270 to one

Munnilal by sale deed dated 22.04.1981 for Rs.9,000/-. Munni Lal

filed the civil suit as has been mentioned hereinabove.

4. The trial Court vide judgment and decree dated

28.01.2011 dismissed the suit filed by the plaintiff Munni Lal holding

that the plaintiff is not entitled for redemption of mortgage deed dated

22.01.1951.

5. Being aggrieved with the aforesaid judgment and decree,

the plaintiff Munni Lal Yadav filed Regular Civil Appeal No.27/2011.

The Lower Appellate Court vide judgment and decree dated

27.09.2021 allowed the appeal preferred by the plaintiff setting aside

the judgment and decree passed by the trial Court and it has been held

that the plaintiff was entitled for redemption of the land mortgaged by

the defendant No.1 - Chhutiyan.

6. Learned counsel for the appellants submitted that the

lower appellate Court has grossly erred in reversing the well reasoned

decree passed by the trial Court. It is further contended that

subsequent purchaser had no locus to file the suit for redemption. It

is also contended that sale deed dated 22.04.1981 cannot be said to be

a valid sale because the possession was not handed over to the

plaintiff and there was suppression of material fact of mortgage in the

sale deed.

7. I have heard learned counsel for the parties. The main

contention of learned counsel for the appellants is that the plaintiff

being the subsequent purchaser could not have filed the suit for

redemption. The lower appellate Court found that the disputed

property was the ancestral property of defendant No.1- Chhutiyan.

The defendant No.1 sold the said property vide registered sale deed

to the plaintiff Munni Lal.

8. In this context, it is appropriate to refer Section 91 of the

Transfer of Property Act which deals with "persons who may sue for

redemption", it reads as follows:

"91. Persons who may sue for redemption.- Besides the mortgagor, any of the following

persons may redeem, or institute a suit for redemption of, the mortgaged property, namely -

(a) 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;

(b) any surety for the payment of the mortgage-debt or any part thereof; or

(c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property."

9. In the case of Narayan Deorao Javie v. Krishna and

Others, 2021 SCC Online SC 608, it has been held by Hon'ble the

Supreme Court in the aforesaid case that once the plaintiff has

purchased property, the equity of redemption is part of the title and as

an owner, he could seek redemption of the suit land. The lower

appellate Court has rightly held that the plaintiff could have filed the

suit for redemption.

10. Hon'ble the Supreme Court in the case of Ravi Setia v.

Madan Lal and Others, (2019) 9 SCC 381 has held that interference

and reappreciation of the evidence in an appeal under Section 100 of

the Code of Civil Procedure is permissible only where findings are

perverse i.e. based on complete misappreciation or erroneous

consideration of evidence or where there is failure to consider

relevant evidence, as the same becomes question of law. [See also:

Damodar Lal v. Sohan Devi and Others, (2016) 3 SCC 78; Naresh

and Others v. Hemant and Others, 2019 SCC Online SC 1490]

11. In this context, it is appropriate to refer to the decision in the case of Nazir Mohamed v. J. Kamala and Others, 2020 SCC OnLine SC 676 wherein Hon'ble the Supreme Court in paragraph 32 has held as follows:

"32. To be "substantial", a question of law must be debatable, not previously settled by the law of the land or any binding precedent, and must have a material bearing on the decision of the case and/or the rights of the parties before it, if answered either way."

12. The findings recorded by the Courts below are based on

proper appreciation of the evidence available on record. The same

cannot be termed as perverse or illegal warranting interference by this

Court in exercise of power under Section 100 of the Code of Civil

Procedure. Hence, no substantial question of law arises for

consideration in this appeal.

13. Accordingly, the second appeal is dismissed.

                                                           (Smt.     Anjuli   Palo)
                                                                   Judge
       ks
Digitally signed by
KOUSHALENDRA SHARAN
SHUKLA
Date: 2022.02.03 01:37:25
-08'00'