5. Although, specific stand was taken by the defendants about
redemption of land but no issue was framed by the Court in that regard.
However, the Court discussed the stand of the defendants and evidence
produced thereon but according to the trial Court, the evidence produced
by the defendants in regard to the said stand was unacceptable because it
was not consistent. The Court, although, discarded the evidence adduced
by the defendants in that regard relying upon a document i.e. Ex.D/42
produced by DW-2 which was an affidavit submitted by the plaintiffs in a
revenue proceeding initiated in pursuance to an application filed under
Section 32 of the Code, 1959.
6. This Court, sitting in appeal, is re-appreciating the facts and
evidence adduced by the parties to decide the actual issue involved in the
case and to consider whether the impugned judgment and decree passed
by the trial Court is sustainable in the light of the issue involved in the
case and on the basis of evidence adduced by the parties.
7. Thus, in the opinion of this Court, the basic issues, which
emerge for consideration, are as under :-
(iii) Whether the suit property was redeemed pursuant to payment
of Rs.15,000/- by the defendants to the plaintiffs and defendants
successfully proved their stand or not ?
8. With regard to issue no.(i) and fact with regard to the
declaratory decree of title on the basis of plea of adverse possession,
though trial Court has refused to grant such decree but plaintiffs has also
challenged the said part of the impugned judgment and decree in an
appeal preferred by them i.e. F.A. No. 744/2016, therefore, this Court is
also dealing with the said issue.
9. There is an undisputed fact that a suit was filed by the
plaintiffs for declaration that has been dismissed by the trial Court and
appeal preferred against the said judgment and decree was also dismissed
and thereafter a second appeal was filed before the High Court. Vide order
dated 29.10.1979 passed in the Second Appeal No.173/1979 (Ex.D/12)
the High Court dismissed the said appeal but clarified with regard to the
document dated 10.12.1963 (Ex.P/1) as under :-
"In any case, the decision about the nature of the
document dated 10.12.1963 in this suit would not affect
the conclusion of the instant suit when the agreement
dated 07.02.1967 has been found to be not genuine and
the suit was for its specific performance."
10. Thus, it is clear that the suit had been filed by the plaintiffs
for specific performance of contract on the basis of document dated
07.02.1967 and that document was found forged and suit of the plaintiffs
was dismissed but the status of the document dated 10.12.1963 was left
open and no finding was given by the Court in that regard.
11. Thus, it is quite clear that it was also obligatory for the trial
Court to see that when a claim of the plaintiffs over the suit property was
on the basis of document dated 10.12.1963 saying that it was a
conditional sale and the condition was to pay the amount of Rs.5,000/- till
10.12.1973 then the suit property would be redeemed but it was not
complied with and the sale became absolute and declaration over the said
suit property could be made by filing a suit for declaration claiming title
by virtue of document dated 10.12.1963. It was not done and suit for
redemption of land filed by the Pyare got dismissed for want of
prosecution and after his death, his legal heirs have not restored the said
suit and it was clear that there was no finding on merit with regard to the
said aspect of the matter and thereafter, defendants have tried to contact
the plaintiffs to redeem the property and according to them, they paid
Rs.15,000/- and property was redeemed giving assurance by the plaintiffs
that land since recorded in the name of defendants, the possession was
also given to them asking them to enjoy the said property. It can be
presumed that the plaintiffs since lost their case up to the High Court and
therefore, they were under the impression that they would get nothing out
of the document dated 10.12.1963 and accepted the amount of
Rs.15,000/- and redeemed the property but this aspect and its impact over
the dispute was not taken into account by the Court below and therefore,
did not care to frame an issue in this regard. A suit for declaration on the
basis of plea of adverse possession claiming title over the suit property
was filed in the year 2014 but that was not maintainable on the basis of
fact that possession over the suit land cannot be said to be adverse and
hostile because it was otherwise a permissive possession.
12. The Supreme Court in the case of Singh Ram (Dead)
through Legal Representatives vs. Sheo Ram and others (2014) 9 SCC
185 has clearly laid down as under :-
"15. Apart from the judgments mentioned in reference
order, reference may be made to some other judgments
dealing with the issue. In Harbans v. Om Prakash
[Harbans v. Om Prakash, (2006) 1 SCC 129] , this
Court upheld the view that limitation for redemption
does not start from date of mortgage in a usufructuary
mortgage and held that the view in State of Punjab v.
Ram Rakha [State of Punjab v. Ram Rakha, (1997) 10
SCC 172] was contrary to the earlier view in Ganga
Dhar v. Shankar Lal [Ganga Dhar v. Shankar Lal, AIR
1958 SC 770 : 1959 SCR 509]. It was observed:
(Harbans case [Harbans v. Om Prakash, (2006) 1 SCC
129] , SCC pp. 132-36, paras 7-9)
"7. Reference may be made to certain paragraphs in
Ganga Dhar v. Shankar Lal [Ganga Dhar v. Shankar
Lal, AIR 1958 SC 770 : 1959 SCR 509], which read
as follows: (AIR pp. 772-75, paras 4, 6-7, 14-18)
'4. It is admitted that the case is governed by the
Transfer of Property Act. Under Section 60 of that
Act, at any time after the principal money has
become due, the mortgagor has a right on payment
or tender of the mortgage money to require the
mortgagee to reconvey the mortgaged property to
him. The right conferred by this section has been
called the right to redeem and the appellant sought
to enforce this right by his suit. Under this section,
however, that right can be exercised only after the
mortgage money has become due. In Bakhtawar
Begam v. Husaini Khanam [(1913-14) 41 IA 84 :
(1914) 1 LW 813 : ILR (1914) 36 All 195] , (IA at p.
89) also the same view was expressed in these
words:
"Ordinarily, and in the absence of a special
condition entitling the mortgagor to redeem during
the term for which the mortgage is created, the right
of redemption can only arise on the expiration of the
specified period."
Now, in the present case the term of the mortgage is
eighty-five years and there is no stipulation entitling
the mortgagor to redeem during that term. That term
has not yet expired. The respondents, therefore,
contend that the suit is premature and liable to be
dismissed.
***
6. The rule against clogs on the equity of
redemption is that, a mortgage shall always be
redeemable and a mortgagor's right to redeem shall
neither be taken away nor be limited by any contract
between the parties. The principle behind the rule
was expressed by Lindley, M.R. in Santley v. Wilde
[(1899) 2 Ch 474 : (1895-99) All ER Rep Ext 1338
(CA)], in these words: (Ch pp. 474-75)
"The principle is this: a mortgage is a conveyance of
land or an assignment of chattels as a security for
the payment of a debt or the discharge of some other
obligation for which it is given. This is the idea of a
mortgage: and the security is redeemable on the
payment or discharge of such debt or obligation, any
provision to the contrary notwithstanding. That, in
my opinion, is the law. Any provision inserted to
prevent redemption on payment or performance of
the debt or obligation for which the security was
given is what is meant by a clog or fetter on the
equity of redemption and is therefore void. It
follows from this, that 'once a mortgage, always a
mortgage'."
7. The right of redemption, therefore, cannot be
taken away. The courts will ignore any contract the
effect of which is to deprive the mortgagor of his
right to redeem the mortgage. One thing, therefore,
is clear, namely, that the term in the mortgage
contract, that on the failure of the mortgagor to
redeem the mortgage within the specified period of
six months the mortgagor will have no claim over
the mortgaged property, and the mortgage deed will
be deemed to be a deed of sale in favour of the
mortgagee, cannot be sustained. It plainly takes
away altogether, the mortgagor's right to redeem the
mortgage after the specified period. This is not
permissible, for "once a mortgage always a
mortgage" and therefore always redeemable. The
same result also follows from Section 60 of the
Transfer of Property Act. So it was said in Mohd.
Sher Khan v. Swami Dayal [(1921-22) 49 IA 60 :
AIR 1922 PC 17] : (IA p. 65)
"An anomalous mortgage enabling a mortgagee
after a lapse of time and in the absence of
redemption to enter and take the rents in satisfaction
of the interest would be perfectly valid if it did not
also hinder an existing right to redeem. But it is this
that the present mortgage undoubtedly purports to
effect. It is expressly stated to be for five years, and
after that period the principal money became
payable. This, under Section 60 of the Transfer of
Property Act, is the event on which the mortgagor
had a right on payment of the mortgage money to
redeem.
The section is unqualified in its terms, and contains
no saving provision as other sections do in favour of
contracts to the contrary. Their Lordships therefore
see no sufficient reason for withholding from the
words of the section their full force and effect."
(SCR pp. 512-14)
***
14. In comparatively recent times Viscount
Haldane, L.C. repeated the same view when he said
in G. and C. Kreglinger v. New Patagonia Meat and
Cold Storage Co. Ltd. [1914 AC 25 : (1911-13) All
ER Rep 970 (HL)] : (AC at pp. 35-36)
"....This jurisdiction was merely a special
application of a more general power to relieve
against penalties and to mould them into mere
securities. The case of the common law mortgage of
land was indeed a gross one. The land was conveyed
to the creditor upon the condition that if the money
he had advanced to the feoffor was repaid on a date
and at a place named, the fee simple would revest in
the latter, but that if the condition was not strictly
and literally fulfilled he should lose the land forever.
What made the hardship on the debtor a glaring one
was that the debt still remained unpaid and could be
recovered from the feoffor notwithstanding that he
had actually forfeited the land to his mortgagee.
Equity, therefore, at an early date began to relieve
against what was virtually a penalty by compelling
the creditor to use his legal title as a mere security.
My Lords, this was the origin of the jurisdiction
which we are now considering, and it is important to
bear that origin in mind. For the end to accomplish
which the jurisdiction has been evolved ought to
govern and limit its exercise by equity Judges. That
end has always been to ascertain, by parol evidence
if need be, the real nature and substance of the
transaction, and if it turned out to be in truth one of
mortgage simply, to place it on that footing. It was,
in ordinary cases, only where there was conduct
which the Court of Chancery regarded as
unconscientious that it interfered with freedom of
contract. The lending of money, on mortgage or
otherwise, was looked on with suspicion, and the
court was on the alert to discover want of
conscience in the terms imposed by lenders."
15. The reason then justifying the Court's power to
relieve a mortgagor from the effects of his bargain is
its want of conscience. Putting it in more familiar
language the Court's jurisdiction to relieve a
mortgagor from his bargain depends on whether it
was obtained by taking advantage of any difficulty
or embarrassment that he might have been in when
he borrowed the moneys on the mortgage. Was the
mortgagor oppressed? Was he imposed upon? If he
was, then he may be entitled to relief.
16. We then have to see if there was anything
unconscionable in the agreement that the mortgage
would not be redeemed for eighty-five years. Is it
oppressive? Was he forced to agree to it because of his
difficulties? Now this question is essentially one of fact
and has to be decided on the circumstances of each
case. It would be wholly unprofitable in enquiring into
this question to examine the large number of reported
cases on the subject, for each turns on its own facts.
17. First then, does the length of the term -- and in
this case it is long enough being eighty-five years itself
lead to the conclusion that it was an oppressive term?
In our view, it does not do so. It is not necessary for us
to go so far as to say that the length of the term of the
mortgage can never by itself show that the bargain was
oppressive. We do not desire to say anything on that
question in this case. We think it enough to say that we
have nothing here to show that the length of the term
was in any way disadvantageous to the mortgagor. It is
quite conceivable that it was to his advantage. The suit
for redemption was brought over forty-seven years
after the date of the mortgage. It seems to us
impossible that if the term was oppressive, that was not
realised much earlier and the suit brought within a
short time of the mortgage. The learned Judicial
Commissioner felt that the respondents' contention that
the suit had been brought as the price of landed
property had gone up after the war, was justified. We
are not prepared to say that he was wrong in this view.
We cannot also ignore, as appears from a large number
of reported decisions, that it is not uncommon in
various parts of India to have long-term mortgages.
Then we find that the property was subject to a prior
mortgage. We are not aware what the term of that
mortgage was. But we find that that mortgage included
another property which became free from it as a result
of the mortgage in suit. This would show that the
mortgagee under this mortgage was not putting any
pressure on the mortgagor. That conclusion also
receives support from the fact that the mortgage money
under the present mortgage was more than that under
the earlier mortgage but the mortgagee in the present
case was satisfied with a smaller security. Again, no
complaint is made that the interest charged, which was
to be measured by the rent of the property, was in any
manner high. All these, to our mind, indicate that the
mortgagee had not taken any unfair advantage of his
position as the lender, nor that the mortgagor was under
any financial embarrassment.
18. It is said that the mortgage instrument itself
indicates that the bargain is hard, for, while the
mortgagor cannot redeem for eighty-five years, the
mortgagee is free to demand payment of his dues at any
time he likes. This contention is plainly fallacious.
There is nothing in the mortgage instrument permitting
the mortgagee to demand any money, and it is well
settled that the mortgagee's right to enforce the
mortgage and the mortgagor's right to redeem are
coextensive.'
8. On the contrary, the learned counsel for the
respondent submitted that in Panchanan Sharma v.
Basudeo Prasad Jaganani [Panchanan Sharma v.
Basudeo Prasad Jaganani, 1995 Supp (2) SCC 574] ,
it was clearly held that when there is no stipulation
regarding period of limitation it can be redeemed at
any time. It was, inter alia, held as follows: (SCC p.
576, para 3)
'(4) The sale certificate, Ext. C-II does not bind the
appellant and, therefore, the mortgage does not
stand extinguished by reason of the sale. It is
inoperative as against the appellant.'
9. Though the decision in State of Punjab case
[State of Punjab v. Ram Rakha, (1997) 10 SCC 172]
prima facie supports the stand of the appellant, the
decision rendered by a three-Judge Bench of this
Court in Ganga Dhar case [Ganga Dhar v. Shankar
Lal, AIR 1958 SC 770 : 1959 SCR 509] according
to us had dealt with the legal position deliberately
and stated the same succinctly."
21. We need not multiply reference to the other
judgments. Reference to the above judgments clearly
spell out the reasons for conflicting views. In cases
where distinction in usufructuary mortgagor's right
under Section 62 of the TP Act has been noted, right to
redeem has been held to continue till the mortgage
money is paid for which there is no time-limit while in
other cases right to redeem has been held to accrue on
the date of mortgage resulting in extinguishment of the
right of redemption after 30 years.
13. Further, the Supreme Court in the case of Kesar Bai v. Genda Lal
and another, (2022) 10 SCC 217 has observed as under :-
"5. The learned counsel appearing on behalf of the
appellant-original Defendant 1 has vehemently
submitted that as such the plaintiffs filed the suit for
declaration claiming ownership/title on the basis of the
registered sale deed dated 31-8-1967 (Ext. P-1) and
also claimed the ownership by adverse possession. It is
submitted that all the courts below had negated the
claim of the original plaintiffs on the basis of the
registered sale deed. It is submitted that thereafter the
only question on behalf of the plaintiffs was the claim
on the basis of the adverse possession. It is submitted
that in the impugned judgment and order, the High
Court has though held the substantial question of law
on adverse possession in favour of the appellant by
observing that the plea of ownership based on sale deed
and plea of adverse possession, both, are contrary to
each other and the plaintiffs cannot be permitted to take
the same plea at the same time, thereafter the High
Court has dismissed the appeal and confirmed the
judgment and order passed by the first appellate court
decreeing the suit for title and also passed the decree
for permanent injunction.
5.1. It is vehemently submitted by the counsel on
behalf of the appellant that once the original plaintiffs
failed to get the decree for title/declaration on the basis
of the sale deed executed on 31-8-1967 (Ext. P-1) and
the substantial question of law with respect to the
adverse possession was held in favour of the appellant
by the High Court, thereafter the original plaintiffs
shall not be entitled to the decree of permanent
injunction.
5.2. It is further submitted that the High Court has
failed to appreciate that once the plaintiffs are not
found to be the owner, they cannot claim their title by
way of adverse possession. Their possession over the
land in question can only be in the nature of an
encroacher. It is submitted that therefore both, the first
appellate court as well as the High Court have seriously
erred in granting the permanent injunction in favour of
the plaintiffs and against the defendants."
14. Thus, it is clear that on the basis of document dated
10.12.1963 (Ex.P/1), no declaration could have been claimed on the basis
of plea of adverse possession and as such the suit for adverse possession
was not maintainable and it was rightly dismissed by the Court refusing to
grant any declaratory decree in this regard in favour of the plaintiffs.
15. As per the facts, in the year 2009, the defendants executed the
sale deed in favour of some of the defendants and on the basis of that sale
deed, the purchaser got their name mutated in the revenue records even
though, plaintiffs did not challenge the said sale deed in time and sought
declaratory decree by filing a suit in the year 2014. Although, the trial
Court refused to grant any such decree in favour of the plaintiffs but this
fact of filing the suit in the year 2014 challenging the sale deed executed
in the year 2009 is material so as to consider the conduct of the parties
especially the plaintiffs and their plea of possession over the suit land
because according to the facts and as per the stand of the plaintiffs, the
document dated 10.12.1963 (Ex.P/1) has become absolute because till
10.12.1973, the condition to repay the loan amount of Rs.5,000/- was not
fulfilled but even then they did not claim any declaration of title by virtue
of document dated 10.12.1963 (Ex.P/1). At the same time, defendants
have taken a stand that by paying an amount of Rs.15,000/- in the year
1992, the mortgage was redeemed and land was again received back by
the defendants and therefore, in 2009, they have executed the sale deed.
It is also clear that the High Court in the year 1979 has given a specific
observation that the status of document dated 10.12.1963 was not affected
by dismissal of suit filed by the plaintiffs. Further, it is noticeable that a
suit for redemption which was filed by Pyarelal got dismissed and
plaintiffs had the knowledge of the same but still they did not care to file a
suit for foreclosure with regard to the disputed property for which a
limitation period of 30 years has been provided in Article 63(a) of the
Schedule of Limitation Act, 1963. The conduct of the plaintiffs sitting
silent upto 2014 not claiming any declaration of title upto 2014 and also
not filing any suit for foreclosure is something suspicious. According to
them, when document dated 10.12.1963 was a sale deed then there was no
reason for them to seek declaration of title by virtue of adverse
possession. It could have been claimed on the basis of document (Ex.P/1)
saying that the same is an absolute sale deed executed by defendant Pyare
in favour of their father Raghuram. It is also surprising that the trial
Court rejected the plea of redemption taken by the defendants only on the
basis of Ex.D/42, produced by DW-2, which is an affidavit submitted by
the plaintiffs in a revenue proceeding in which Phoolchand in his cross
examination has stated as under :-
";g dguk xyr gS fd vkosndx.k ;fn vkoafVr vkjkth dk
xgu eqDrko ns nsa rks Hkwfe okil ys ysxsaA"
16. I am surprised as to how this suggestion and clarification of
plaintiffs can be a foundation to hold that they are in possession of the
property and there was no redemption whereas defendants have very
categorically stated in their evidence that they have paid Rs.15,000/-
infront of other witnesses and statements of those witnesses were also
recorded and they have also stated so. The conduct of the plaintiffs for
not challenging the sale deed of the year 2009 upto the year 2014 and also
not filing any suit for declaration of title claiming that the document dated
10.12.1963 (Ex.P/1) has become absolute sale deed due to non-
compliance of the condition for repayment of amount and as such, in the
opinion of this Court, the finding given by the trial Court holding that the
plaintiffs though they are not the true owners of the suit property by virtue
of document dated 10.12.1963 (Ex.P/1) but still they are in lawful
possession of the land is not sustainable. The suit for declaration as has
already been observed was not maintainable and overall circumstances
indicate that plaintiffs were not vigilant about their rights over the suit
property and only by virtue of adverse possession, they were claiming
title and claiming possession over the property. The trial Court ignoring
the order of revenue authority and mutation entries made in favour of the
purchaser, only on the basis of statement made by the plaintiffs in revenue
proceeding has come to the conclusion about the possession of the
plaintiffs. The said finding, in my opinion, is erroneous and rather
perverse and therefore, decree granted by the Court below with regard to
permanent injunction holding possession of the plaintiffs over the suit
property is also not sustainable.
17. It is also clear that the injunction in the present case on a suit
for declaration by virtue of adverse possession is a consequential relief.
When suit itself was not maintainable and decree of declaration was
refused by the Court then granting decree of permanent injunction in
favour of the plaintiffs was otherwise contrary to law.
18. The Supreme Court in the case of Kesar Bai (supra) which
has already been quoted hereinabove has laid down that when a
declaratory decree of title by virtue of adverse possession is denied, the
permanent injunction also cannot be granted in favour of the plaintiff.
19. Further, the Supreme Court in the case of Padhiyar
Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC 128 has
observed as under :-
"18. Even otherwise on merits also, the courts below
have erred in passing the decree of permanent injunction
restraining Defendant 1 from disturbing the alleged
possession of the plaintiff. Assuming for the sake of
argument that the plaintiff is found to be in possession,
in that case also, once the plaintiff has lost so far as the
relief of declaration and title is concerned and Defendant
1 is held to be the true and absolute owner of the
property in question, pursuant to the execution of the
sale deed dated 17-6-1975 in his favour, the true owner
cannot be restrained by way of an injunction against
him. In a given case, the plaintiff may succeed in getting
the injunction even by filing a simple suit for permanent
injunction in a case where there is a cloud on the title.
However, once the dispute with respect to title is settled
and it is held against the plaintiff, in that case, the suit by
the plaintiff for permanent injunction shall not be
maintainable against the true owner. In such a situation,
it will not be open for the plaintiff to contend that though
he/she has lost the case so far as the title dispute is
concerned, the defendant -- the true owner still be
restrained from disturbing his/her possession and his/her
possession be protected."
(emphasis supplied)
20. In view of the facts and circumstances of the case, this Court
has no hesitation to say that the impugned judgment and decree passed by
the trial Court in favour of the plaintiffs is not sustainable for the reason
that the plaintiffs have never claimed declaration of title saying that the
document dated 10.12.1963 though considered to be a mortgage but it
was a mortgage by condition and since the condition was not fulfilled, it
has become absolute and should be treated to be a sale deed and therefore,
it is clear that plea of redemption taken by the defendants on the basis of
evidence adduced had to be considered by the Court and therefore, the
suit is to be dismissed in toto.
21. Accordingly, F.A. No.645/2016 filed by the defendants is
allowed and the RCS-A No.05A/14 filed by the plaintiffs is dismissed.
Resultantly, the connected appeal i.e. F.A. No.744/2016 filed by the
plaintiffs fails and is accordingly dismissed.
22. No order as to costs.
(SANJAY DWIVEDI)
JUDGE
PK
PARITOSH Digitally signed by PARITOSH KUMAR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF
MADHYA PRADESH,
2.5.4.20=43c946b45c8a66c03b68676e788802a41cc03b5b9567caf9c2c
KUMAR
3b981b8cb6596, postalCode=482001, st=Madhya Pradesh,
serialNumber=678DC301994B496012A9643D92E6C6335F11A93DA54
F2DFB6E44B8B7A45044FC, cn=PARITOSH KUMAR
Date: 2025.06.17 14:24:14 +05'30'
