Punjab-Haryana High Court
Sohan Singh (Deceased) Through His Lrs vs Rachhpal Singh on 20 March, 2024
Author: Anil Kshetarpal
Bench: Anil Kshetarpal
Neutral Citation No:=2024:PHHC:042085
RSA No.437 of 2020 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.437 of 2020 (O&M)
Reserved On: 29.02.2024
Date of Order:20.03.2024
Sohan Singh (Deceased) through Lrs
.Appellant
Versus
Rachhpal Singh
..Respondent
CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL
Present: Mr. Pankaj Bains, Advocate, for
Mr. Ashish Handa, Advocate
for the appellant.
Mr. Sukant Gupta, Advocate
for the respondent.
ANIL KSHETARPAL, J
1. This regular second appeal has a checkered history as the
Supreme Court on two different occasions has set aside the judgments and
decrees passed by the courts below and remanded the case back to the courts
for a fresh decision. Hence, it is considered appropriate to give factual
background.
2. This appeal has been filed by the legal representatives of Sh.
Sohan Singh, who was the defendant in the suit filed by Sh. Rachhpal Singh
for possession by redemption of land measuring 25 kanals and 5 marlas,
situated in village Bhatoya. The suit was dismissed on 20.11.1973, which
was affirmed in the first appeal by the judgment and decree dated
20.09.1975. During the pendency of the regular second appeal, an
application under Order XIII Rule 3 CPC was filed for permission to settle
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the dispute amicably. The application as well as the regular second appeal
filed by the plaintiff was dismissed on 22.01.1985. Against the aforesaid
judgment, the plaintiff filed Civil Appeal No.5205 of 1993, which was
allowed on 24.09.1993. The relevant portion of the order is extracted as
under:-
"It is obvious that on that conclusion reached by the High
Court, after rejecting the application under Order 23
Rule 3CPC, the Second Appeal had to be heard and
decided on merits. However, that was not done and after
rejecting the application under Order 23 Rule 3 CPC,
because it was based on a receipt found to be forged, the
High Court proceeded to dismiss the appeal itself without
considering the merits of the appeal. This was an
obvious error on account of which the impugned
judgment dismissing the appeal in this manner has to be
set aside.
Consequently, the appeal is allowed. The High
Court's judgment, inso far as it relates to the dismissal of
the Second Appeal, is set aside. The Second Appeal be
now heard on merits and decided afresh by the High
Court. No costs."
3. The High Court once again dismissed the appeal on 25.04.2007.
Then, the Supreme Court once again by a detailed judgment passed in Civil
Appeal No.5210 of 2009, allowed the appeal on 26.10.2017, by a elaborate
order which is extracted as under:-
1. The judgment of the High Court of Punjab and
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Haryana in Civil Regular Second Appeal No. 465 of 1976
dated 25th April, 2007 is under challenge in this appeal.
2. The father of the appellant mortgaged the property
in the form of usufructuary mortgage to one Mr. Beliram.
The property was situated in Pakistan. After partition, the
parties shifted to India. Since the appellant and his family
were displaced from Pakistan, entire family was
rehabilitated by providing alternative agriculture land in
Village Bhatoya in favour of the father of the appellant.
However, Beliram, the mortgagee also shifted to India
and stayed in the same village and continued to hold the
property which was provided to appellant's father in
India for the purpose of rehabilitation as the mortgagee.
Beliram transferred his mortgaged rights, in respect of
the mortgaged property situated in India in favour of one
Mr. Sohan Singh-respondent. After demise of appellant's
father, the appellant filed the suit for redemption of
mortgage. The Courts below including the High Court
have dismissed the suit on the ground that no adequate
material is produced by the appellant to show that he is
the owner of the property and that he has mortgaged the
property in favour of either Beliram or Sohan Singh.
3. It is relevant to note here itself that the appellant's
father had owned another property in Pakistan which
also was mortgaged in favour of one Inder Singh and one
Jagat singh. Almost similar facts as mentioned supra
regarding shifting to India after partition, rehabilitation,
allotment of land & mortgage etc. are applicable to the
case of Inder singh & Jagat Singh also. The appellant
filed suit for redemption of mortgage in respect of the
mortgaged land situated in India against Inder Singh &
Jagat singh and the said suit came to be decreed
throughout. During the pendency of the said suit, the
appellant herein went to Pakistan and obtained all the
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relevant records pertaining to the property in the said
case and the same were produced. Ultimately based on
such documents, the Courts including this Court held that
the appellant's father and thereafter the appellant was
owner & mortgagor of the said property and thus are
entitled to redemption of mortgage. As mentioned supra,
suit for redemption filed against Inder Singh & Jagat
Singh was decreed.
4. Coming back to the case on hand, during the
pendency of the matter before the High Court it seems,
after the disposal of the matter by the first appellate
court, as mentioned supra, the appellant herein went to
Pakistan in 1985 and secured all the relevant records in
respect of the property which was mortgaged in favour of
Beliram and also the subsequent records pertaining to
allotment of property by the Government of India after
rehabilitation. All such records were produced by the
appellant before this Court during the pendency of the
special leave petition i.e. SLP(C) No. 7531 of 1985.
Ultimately this Court remitted the matter to the High
Court in the year 1993 for fresh disposal in accordance
with law. During the pendency of the matter on hand
before the High Court, the appellant filed an application
for production of additional evidence i.e. basically for
producing the relevant records obtained by him from
Pakistan pertaining to the property which were produced
by the appellant during the pendency of special leave
petition. The High Court, strangely, took a hyper-
technical view and rejected such application and
thereafter proceeded to confirm the Judgment of
dismissal of the suit.
5. The learned counsel appearing for the appellant
has taken us to the material on record and the documents
which are sought to be produced before the High Court.
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We find that such documents were necessary before the
High Court for just decision of the case. Almost very
documents were produced in the case of Inder Singh &
Jagat Singh which were accepted & relied upon.
6. In our considered opinion, rejection of the
appellant's application by the High Court for producing
the additional evidence has led to mis-carriage of justice.
The documents that the appellant has subsequently with
great difficulty retrieved from the Government of
Pakistan prima facie show that the appellant's family was
owning the land which was originally mortgaged & that
the appellant's family was subsequently allotted another
agricultural land for the purpose of rehabilitation in
India, and the same is held by the respondent. Since the
records sought to be produced by the appellant before the
High Court are very much necessary to decide the matter
in an appropriate and fair manner, the judgment of the
High Court is liable to be set aside. So also the
application for amendment of plaint needs to be allowed
inasmuch as amendment is necessary, in view of the
additional documents which are sought to be produced.
7. Accordingly, the application for leading additional
evidence as well as the application filed for amendment
of plaint produced before the High Court are hereby
allowed. The matter is remanded to the High Court for
fresh decision in accordance with law. We place on
record that it will be open for the High Court to get the
evidence and the findings recorded both oral &
documentary by the first appellate court. After getting
such findings, the second appeal shall be decided by the
High Court. We hope that the High Court will make
endeavour to decide the second appeal as early as
possible.
8. The appeal is allowed as mentioned supra. No
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order as to costs."
4. On 07.02.2019, the matter was remitted back to the First
Appellate Court, for deciding afresh, with the following order:-
"CM No.2256-C of 2019
Replication to the amended Written Statement
dated 5th December, 2018 filed on behalf of the
appellant/plaintiff is permitted to be taken on record.
Application stands disposed off.
The appellant has been already permitted to
place on record the additional evidence and to amend
the plaint in terms of the direction of the Hon'ble
Supreme Court in Civil Appeal No.5210 of 2009.
2. The matter now involves comparison of the
documents so led by way of additional evidence,
which would require closer scrutiny with the
original/amended pleadings in view of a specific
objection raised on behalf of the respondent to the
effect that some of the figures by way of mortgaged
amounts and disputed areas of land claimed by the
appellant do not tally with the original/amended
claim. In these circumstances, it appears fit and
proper to refer the matter back to the First Appellate
Court to get any additional oral evidence to be
recorded, in view of the additional documents
permitted to be led into evidence and pronouncement
of a fresh finding, which shall thereafter be
considered again by this Court, for which purpose,
the Hon'ble Apex Court had itself left it open for this
Court to get the same done through the Ld. First
Appellate Court, which is accordingly directed to
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pronounce a fresh finding in the light of the
additional evidence and additional documentary
evidence already led, and any additional oral
evidence as a consequence thereof which the parties
may now desire to lead, and thereafter to decide the
appeal afresh as expeditiously as possible, and
preferably within four months from the date of
communication of this order. Additional documents
led into evidence be also sent along with records of
the Lower Courts.
3. Accordingly, parties are directed to appear
before the Ld. First Appellate Court on 28th February,
2019.
4. List the matter on 28th August, 2019 for
awaiting intimation from the Lower Appellate
Court."
5. Pursuant thereto, the First Appellate Court has allowed the
plaintiff's appeal vide judgment and decree dated 17.10.2019. In this
regular second appeal, the legal representatives of the defendant assail
the correctness of the judgment and decree passed by the First Appellate
Court.
6. The Supreme Court has permitted the plaintiff to substantively
amend the plaint.
7. Originally, Sh. Rura son of Sh. Roda and Sh. Sansar Singh son
of Sh. Bachittar Singh and Sh. Beli Ram son of Sh. Roda mortgaged their
land located in the area now falling in Pakistan, in the year 1939, for
Rs.5500/- in favour of Sh. Anant Ram, Sh. Diwan Chand, Sh. Kanshi Ram,
Sh. Mukand Lal and Sh. Jawanda Mal sons of Sh. Gobind Ram.
Subsequently, the mortgagees sold their rights in favour of Sh. Inder Singh
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and Sh. Jagat Singh. Subsequently, Sh. Inder Singh and Sh. Jagat Singh
sold some part of the mortgagee rights in favour of Sh. Sohan Singh
(predecessor of the appellant), for Rs.1300/-. After partition of the country,
in lieu of the previous land owned by the owners, namely, Sh. Rura son of
Sh. Roda and Sh. Sansar Singh son of Sh. Bachittar Singh and Sh. Beli Ram
son of Sh. Roda, the land was allotted to them. However, the suit land
measuring 25 kanals and 5 marlas was allotted to Sh. Sohan Singh as the
mortgagee, whereas, the owners were recorded as mortgagors. There has
been various rounds of litigations between the parties. Sh. Rachhpal Singh
son of Sh. Sansar Singh filed a suit for redemption of mortgage of land
measuring 66 kanals and 14 marlas against Sh. Inder Singh and Sh. Jagat
Singh which was dismissed on 30.10.1982. However, the first appeal was
allowed on 15.03.1986, resulting in setting aside the judgment and decree
dated 30.10.1982. The Regular Second Appeal No.1193 of 1986, was
dismissed on 10.11.1986, whereas Special Leave Petition No.15861 of 1986,
was dismissed on 24.09.1993. Thereafter, heirs of Sh. Inder Singh and Sh.
Jagat Singh filed Civil Suit No.445 dated 16.10.1993, seeking decree of
declaration and possession with respect to land measuring 111 kanals and
14 marlas against Sh. Rachhpal Singh son of Sh. Sansar Singh. The said suit
was dismissed on 24.10.1997. Thereafter, heirs of Sh. Inder Singh and Sh.
Jagat Singh filed another Civil Suit No.2001 of 27.05.2003, for grant of
decree of declaration that they are owners of 66 kanals and 14 marlas land
against Sh. Rachhpal Singh, which was also dismissed on 24.08.2009.
8. This Bench has heard the learned counsel representing the
parties at length and with their able assistance perused the paper book along
with the requisitioned record of the First Appellate Court, wherein
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substantive evidence has been led after the order passed by this court in the
previous round on 07.02.2019. The learned counsel representing the
appellant has also filed synopsis. The operative part of the synopsis
containing the gist of his arguments, is extracted as under:-
1. That the present amendment amounts to a denovo
trial in as much as the allegations in the plaint stand
totally changed. In fact earlier the plaintiff-respondent
had alleged that the mortgage was in 1939 for an amount
of Rs. 370/- and to that effect oral evidence was also
lead. The stand would amount to denovo trial In any
case, the documentary evidence now lead by the plaintiff-
respondent by way of additional evidence is not
supported by the oral evidence produced by the plaintiff-
respondent.
2. That after litigating for over a period of 47 years
plaintiff/respondent has sought for a denovo trial, infact
knowing fully well that the case now set-up by the
plaintiff-respondent is not even supported by the plaintiff-
respondents 's own oral evidence.
3. That the plaintiff by way of filing the amended
plaint has sought to change the very basic nature of 3 the
suit in as much as the name of the mortgagee has been
changed, the date of mortgage had been changed and the
amount of mortgage has also been changed. That being
so, the present suit ought to be dismissed in as much as
the same would amount to denovo trial after 47 years.
That in additional evidence the plaintiff/respondent
stated that he has obtain the documents from the Pakistan
after obtaining the permission from the Hon'ble Court
but in his cross examination he has failed to produced
and document with regard to permission taken by him
from the Hon'ble Court and even he has failed to produce
the Visa and passport which shows that he visited the
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Pakistan.
4. That the area alleged to have been mortgaged is
not mentioned. It is further stated that mutation No.
452(Ex AX/A10) relied upon does not refer to the
parentage of Sohan Singh and infact there is no
area/Khasra nos./Khewat Khatauni mentioned in the said
document. A Perusal of Ex AX/A10 clearly reveals that
the said document nowhere states that parentage of
Sohan Singh and cannot by any stretch of imagination be
correlated to the land involved in the present lis. Totally
vague and baseless allegation has been made by the
plaintiff without so much even giving a single detail
regarding the land. The Fard/Jamabandi Ex AX/A11 has
no correlation to the land involved in the present lis.
5. That there is no evidence brought on record either
oral or documentary with respect to the creation of
alleged mortgage in dispute nor is there any evidence
regarding the alleged sale of mortgagee rights of suit
land in favour of appellant. There is also no pleading to
the effect whether the alleged mortgage was oral one or
created through an mortgage deed. The averments in the
plaint are silent in this matter. The mortgage is always a
bilateral contract. The perusal of alleged mutation No.
452(ExP3) translation Ex P3/A would show that the
appellant Sohan Singh never appeared before the
revenue officer to admit the transfer of alleged
mortgagee rights or admit the mortgage in question.
Moreover as per column No. 15 of mutation No. 452, it is
shown that Sh. Jagat Singh and Inder Singh purchased
mortgagee rights of the land vide mutation No. 248 dated
19-02-1930 Ex P2, translation Ex P2/A against Rs. 1300.
Whereas in mutation No. 248, the consideration amount
of the sale of mortgagee rights to Inder Singh and Jagat
Singh mentioned as Rs. 5,500/- Both these documents of
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mutation run counter to each other Neither the mutation
No. 452. mutation No. 248 show the detail of the land
mortgaged such as the area, Khata. Khatoni No's or even
the Khasra number are not mentioned with respect to
which the alleged mortgage was created in favour of
Inder Singh, Jagat Singh thereafter by Inder Singh Jagat
Singh in favour of Sohan Singh. It is well established law
that plaintiff has place on record merely copies of
mulation Nos 248 and 452. The mutation entry do not
prove mortgage nor does it create any right or title in the
suit property nor these mutation extinguish the title. The
mutation entries are only relevant for fiscal purposes for
the collection of land revenue. The plaintiff has failed to
place on record the relevant Jamabandi entries
pertaining for the year 1945-46 with which the alleged
mutation No 452 is alleged to be attached. The plaintiff/
respondent has also not placed on record any record any
previous or subsequent revenue entries. Again the
perusal of mutationNo. 452 would show the transfer of
mortgagee rights pertain to 1/3 share of Khata No. 2,
17,21 and 1/6 share of Khata No. 7 and 55 total area 386
Kanal 5 Marlas and the mortgage amount is Rs. 1,300/-
the purchaser of the mortgagee rights is shown as Sohan
Singh. But the mutation or order of mutation do not show
the parentage of Sohan Singh and the place of his
resident In this manner neither the identity of land
regarding which the alleged mortgagee rights have been
shown to be transferred is established on record nor the
identity of the person in whose favour, the alleged
mortgagee rights were transferred established on file.
Beside this, the plaintiff/respondent has miserably failed
to connect the land mentioned in the order of Revenue
officer in mutation no 452 with the land in suit which
measuring 25 Kanals 5 Marlas The perusal of Sanad
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Takseem Azari Matryka Ex A1, translation Ex A1/A only
shows that one Sohan Singh is shown to have been
allotted 2 Kanals 4 Marlas (2-4) as mortgagee. The
mutation enteries bearing no 452 do not connect Sohan
Singh with Parchi allotment Ex P1. In which
defendant/appellant shown as allottee mortgagee. There
is also discrepancy regarding the amount of mortgage. In
the original plaint, the amount of mortgage is shown as
Rs. 370. Whereas in the mutation No as 248, it is shown
as Rs 5,500/- and in mutation No. 452 the amount of
mortgagee is mentioned as Rs. 1,300/-, The
plaintiff/respondent has miserably failed to lead any
credible, cogent and convincing evidence prove and
establish the factum of alleged mortgage as well as the
particulars of the mortgage on the Court file. The
Hon'ble Punjab and Haryana High Court vide its order
dated 07-02-2019 while remanding the cases to this
Hon'ble Court observed in Para No. 2 of the order as
under:-
"The Matter now involves comparison of the
documents, so led by way of additional evidence,
which would require closer scrutiny with the
original/amended pleadings in view of specific
objections raised on behalf of respondent to the
effect that some of the figures byway of mortgaged
amounts and disputed areas of land claimed by the
appellant do not tally with the original/amended
claim."
Thus the present case has to be decided in the light of the
observations of the Hon'ble High Court as mentioned
above but the lower appellant court had failed to
considered the above said observations. The land
mentioned in Ex P1/A do not tally or connect with the
land mentioned in the mutation No. 452 Ex AX/A 10T.
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These mutations pertains to pre-partition period of India.
Now in post partition period also, the plaintiff has failed
to bring on file complete consolidation such as Khatoni
Pamaish and pre-consolidation Jamabandies to connect
the suit land with the land alleged to have been allotted
as mortgagee to the defendants in lieu of the land left by
him in West Pakistan It was incumbent upon the
plaintiff/respondent to produce or prove on record the
pre-consolidation Jamabandies, Khatoni Istemaal,
Khatoni Paimaish and Naksha Haqdarwar to connect the
pre-consolidation Khasra numbers with the suit land
Even in the Khatoni Istemaal, the parentage of Sohan
Singh is not mentioned as to who that Sohan Singh is to
whom this entry pertains. Not only this Khatoni Istemaal
Ex AX/A 11 T reveals that the land mentioned in this
document is comprised in khewat no 30 but the
plaintiff/respondent has not placed on record the
previous jamabandi of khewat no 30 nor the
plaintiff/respondent has placed on record Khatoni
paimaish to connect this land with suit land The plaintiff
has not shown the detail and particulars of khewat no 30.
Even in the consolidation jamabandi 1957-58 Ex AX/AB
khewat no 30 is nowhere mentioned, and in the reference
to this cannot be said that suit land was carrying
Previously khewat/khata no 30 as mentioned in khataoni
istemaal. The plaintiff/respondent has failed to prove that
the defendant was ever mortgagee under the
plaintiff/respondent.
6. That the plaintiff has led oral evidence after the
remand of this case and in his affidavit the plaintiff sh.
Rachhpal Singh alleged that Sh. Arora and Sansar Singh
Sons of Bachitter Singh and Beli Ram Son of Rura were
owners of land in west Pakistan which they had
mortgaged in favour of Inder Singh and Jagat Singh and
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thereafter Inder Singh and Jagat Singh sold mortgagee
rights of part of the land under mortgaged with them in
favour of Sohan Singh for consideration of Rs 1,300/-. In
his cross-examination, the plaintiff states that the suit
land is measuring 66 Kanals 14 Marlas which is contrary
to the averments made by plaintiff/respondent in his
plaint. He has further admitted that he cannot orally tell
as to how much land Sohan Singh having as mortgagee
in Pakistan and he further stated that he cannot tell the
Khata Khatoni or Khasra number of suit land in
Pakistan. He has also stated that suit land was never
mortgaged in his presence nor its mortgagee rights were
sold to any person in his presence. The plaintiff has
based the present suit only on one mutation entry bearing
No. 452 which has no relevancy and the same is vague,
ambiguous and uncertain It is pertinent to mention over
here that land measuring 66 Kanals 14 Marlas has
already been ordered to be redeemed by the Civil Court.
The Judgment and Decrees are already on record. The
redemption of 66 kanal and 14 marla further leads to
show that the suit land was never under mortgaged with
Sohan Singh defendant/Appellant. It is well settled
principal of law that integrity of mortgage can never be
broken. The plaintiff had filed suit for redemption of land
measuring 66 Kanals 14 Marlas against Inder Singh and
Jagat Singh, but the plaintiff did not include the suit land
in the previously instituted suit nor defendant was made
party to that suit. Which fact again lead to prove that the
suit land was, never under mortgage with Sohan Singh.
There was no relation of mortgagor and mortgagee
between the parties. Even it is assumed that the defendant
has purchased the mortgagee rights of the land in dispute
from Inder Singh and Jagat Singh In that event also, suit
land would have been included in the previous suit and in
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the name of Sohan Singh also would have been included
in the array of defendants because a purchaser of
mortgagee rights is also mortgagee and he steps into the
shoes of 1 mortgagee. As the previous suit for redemption
was only qua 66 Kanals 14 Marlas and the suit land was
not included in the previous suit it further strengthen the
stand of the defendants that it was never under mortgage
with the defendant.
7. That the suit of the plaintiff is also barred by
limitation. The period of redemption of mortgage is only
30 years. in the present case, the original mortgage is
alleged to be of the year 1912 and the mortgagee rights
of the land mortgaged are alleged to have been
purchased by Inder Singh, Jagat Singh in the year 1930
vide mutation no 248. The present suit for redemption
has been filed on 10-06-1971 beyond the period of
limitation,. It is well settle preposition of the law that the
alleged sale of mortgagee rights, do not extend the period
of limitation in any manner.
8. That the plaintiff has heavily relied upon the
decisions of the previous litigations. Copies of which are
Ex P2 to ex P7 on the file. All these documents have no
relevancy in the present case because the subject matter
of the present suit is different than that of land mentioned
in Ex P2 to Ex P7. Besides this the party in present suit
land previous litigation were also different. The
defendant was not party to the previous suit. Thus any
judgment which is not inter parties is not relevant and the
defendant is not bound by it. It does not have force of
resjudicata nor these amendments have any relevancy
under section 40 to 43 of the Indian Evidence Act."
9. This court has considered the submissions of the learned
counsel representing the parties.
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10. It is evident that the First Appellate Court has decided the
matter afresh. The Hon'ble Supreme Court by detailed judgment dated
26.10.2017, has permitted the plaintiff to substantively amend the plaint.
Hence, a de-novo trial of the case had become necessary. Now the
defendant cannot make grievance that in a de-novo trial the plaintiff has
totally changed his stand.
11. As regard the second part of the first submission, it may be
noted that this case is based upon documentary evidence, hence, oral
evidence is not of much significance. In any case, it is evident that the First
Appellate Court has permitted the parties to lead oral evidence apart from
documentary evidence. On 08.04.2019, deposition of one PW was
examined. Similar opportunity was given to the appellant (respondent
before the First Appellate Court), however, he closed his evidence. Thus,
whether oral evidence the parties wanted to lead has been recorded by the
First Appellate Court.
12. Hence, the first and second submissions have no substance.
13. With regard to the next submission, it may be noted that the
case is required to be decided on the basis of material which has been
produced. The production of Visa and passport of the plaintiff was
necessary to prove that he visited Pakistan. The civil cases are required to
be decided on preponderance of evidence. It has come on record that Sh.
Sohan Singh was delivered possession of the disputed land as mortgagee
while predecessors-in-interest of the plaintiff were recorded as mortgagors.
Keeping in view the aforesaid facts, the submission of the learned counsel
lacks substance.
14. With reference to the next submission, it may be noted that the
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total mortgaged land has not been specified, however, a series of litigation
between the parties clearly prove that a large chunk was mortgaged.
However, in this case, the relevant documents have been produced. It is
proved that Sh. Sohan Singh purchased mortgagee rights with respect to a
part of the mortgaged property from Sh. Inder Singh and Sh. Jagat Singh.
Subsequently, after partition of the country Sh. Sohan Singh was delivered
possession as mortgagee of the suit land. Hence, sufficient evidence has
been led to link the mortgage. Consequently, the total mortgaged land is not
necessary particularly when the previous suit filed by Sh. Rachhpal Singh
son of Sh. Sansar Singh with respect to land measuring 66 kanals and 14
marlas against Sh. Inder Singh and Sh. Jagat Singh has already been decreed
by a separate suit.
15. With respect to the next submission of the learned counsel, it
may be noted that sufficient material has been brought on record from
Pakistan to prove that the mortgagee rights of the suit land were purchased
by Sh. Sansar Singh. The plaintiff has produced copy of the mutation
reflecting that there was a sale of mortgagee rights vide receipt dated
03.01.1930, in favour of Sh. Inder Singh and Sh. Jagat Singh. Thereafter, a
detailed order has been recorded by the revenue officer on 19.02.2013, to
prove that originally the land was mortgaged by Sh. Rura and Sh. Sansar
Singh son of Sh. Bachhitar Singh and Sh. Beli Ram son of Sh. Roda in
favour of Sh. Anant Ram etc., who subsequently transferred mortgage rights
in favour of Sh. Inder Singh etc. It is also recorded that Sh. Inder Singh and
Sh. Jagat Singh had also purchased a part of the property which was
originally mortgaged.
16. Apart therefrom, the plaintiff has also produced Ex.P3, a copy
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of an entry from the register of mutation of village Phukalian. The aforesaid
entry again proves that Sh. Inder Singh and Sh. Jagat Singh have acquired
mortgagee rights in part of the property. It is also recorded in the report and
orders that on 20.08.1942, mutation was sanctioned on the basis of transfer
of mortgagee rights against a sum of Rs.1300/- by Sh. Inder Singh and Sh.
Jagat Singh in favour of Sh. Sohan Singh vide receipt dated 19.08.1942.
Again a detailed order of the revenue officer is part of the mutation order.
The plaintiffs have also produced a copy of khatauni Istemal as Ex. P4
which proves that Sh. Sohan Singh was allotted the land as mortgagee,
whereas, the owner was Sh. Rachhpal Singh. The plaintiff has also
produced copy of Naksha Haqdarwar (list of right holders in the village)
which proves that the suit land was in possession of Sh. Sohan Singh as
mortgagee. The jamabandi for the year 1957-58 has been produced as
Ex.AX/13, equivalent to Ex.P5/B. A bare perusal thereof also proves that
the mortgagee Sh. Sohan Singh adopted son of Sh. Beli Ram was in
possession of the suit property. The plaintiff has also produced jamabandies
for the years 1962-63, 1967-68, 1977-78, 1982-183, 1987-88, 1992-93,
1997-98, 2002-03, 2007-08 and 2012-13. Apart from that the judgments and
decrees passed by various courts which have already been noticed have been
produced.
17. In view of the aforementioned overwhelming evidences, the
First Appellate Court has accepted the appeal. Hence, it is not appropriate
for the appellant to contend that sufficient material has not been produced. It
is, thus, evident that the plaintiff has produced evidence with regard to pre-
partition period of India. He has also produced record with respect to post-
partition period of the country. The plaintiff has also produced record of
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khatoni istemal which is prepared at the time of consolidation of holdings.
Thereafter, copies of jamabandies have been produced to link the suit land.
Hence, there is no substance in the submission of the learned counsel
representing the appellant.
18. Submission no.6 has no substance because the plaintiff in cross-
examination got confused. In fact, the land measuring 66 kanals and 14
marlas has already been redeemed. Consequently, mistake in the oral
evidence will not be sufficient to non-suit the plaintiff particularly when the
sufficient documentary evidence has been produced to prove the plaintiff's
case. One of the argument is with regard to breaking of integrity of the
mortgage. It may be noted here that the attention of the court has not been
drawn to any provision which debars redemption of mortgage in parts
particularly when the mortgagee rights have been sold and transferred in
favour of different persons. The total land mortgaged with Sh. Sohan Singh
is 25 kanals and 5 marlas. The same has been permitted to be redeemed by
the First Appellate Court.
19. With reference to submission no.7, the larger Bench of the
Supreme Court has already decided this issue in Singh Ram (deceased)
through Lrs vs. Sheo Ram and others, 2014 AIR SC 344. Hence, the
period of limitation for redemption of the mortgage will not begin to run
from the date of the mortgage. It will run from the date the mortgagor
tenders the amount for redemption.
20. With reference to submission no.8, it may be noted that the
plaintiff has produced these documents to prove that he was mortgagor and
his suit with respect to part of the land has already been decreed.
21. Keeping in view the aforesaid discussion, there is no merit in
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the appeal. Hence, the same is dismissed.
22. All the pending miscellaneous applications, if any, are also
disposed of.
20th March, 2024 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned :YES/NO
Whether reportable :YES/NO
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