Dhan Singh Vs. Nagina & Anr.
EmailAppeal: Civil Appeal No. 1962 of 1989
(From the Judgment and Order dated 26.11.85 of the Punjab & Haryana High Court in Regular Second Appeal No. 5 of 1977)
(From the Judgment and Order dated 26.11.85 of the Punjab & Haryana High Court in Regular Second Appeal No. 5 of 1977)
Petitioner: Dhan Singh
Respondent: Nagina & Anr.
Apeal: Civil Appeal No. 1962 of 1989
(From the Judgment and Order dated 26.11.85 of the Punjab & Haryana High Court in Regular Second Appeal No. 5 of 1977)
(From the Judgment and Order dated 26.11.85 of the Punjab & Haryana High Court in Regular Second Appeal No. 5 of 1977)
Judges: KULDIP SINGH & S.C. AGRAWAL, JJ.
Date of Judgment: Feb 16, 1994
Appearances:
Mr. V.C. Mahajan, Senior Advocate and Mr. P.N. Puri, Advocate with him for the Appellant
Mr. Kirpal Singh, Advocate for Mr. M.A. Krishnamoorthy, Advocate for the Respondents.
Head Note:
SUIT FOR POSSESSION OF LAND
Suit for possession of land – Whether the suit by appellant was for redemption or a suit for possession simpliciter? – In the earlier suit the High Court had upheld the finding of lower court that it was a suit plainly for possession of the land – Respondent being parties to the earlier suit the decision of the High Court was binding on them – It was not open to the appellate court and the High Court in the subsequent suit to proceed on the basis that the sale of half of the property was not converted into mortgage as a result of the earlier judgment of the High Court – Setting aside the findings of the lower appellate court and of the High Court, appellant directed to take possession of half of the land from the respondents – Appeal allowed.
JUDGEMENT:
KULDIP SINGH, J. :
1. This appeal is a sequel to a suit for possession by redemption of agricultural land measuring 268 kanals 6 marlas, situated a village Haibatpur, Tahsil and District Karnal (Haryana), instituted by the appellant-plaintiff in the year 1970. The suit was decreed by the trial court. The lower appellate court, however, set aside the judgment of the trial court and dismissed the suit. The High Court, in second appeal, declined to interfere with the findings of the lower appellate court. This appeal by way of special leave is by Dhan Singh appellant – plaintiff.
2. One Surjit Singh was the owner of the land in dispute. He sold 122 bighas 15 biswas (including the land in dispute) of agricultural land, a house and a bara to Nagina and Sher Singh, respondents – defendants for a sum of Rs. 2,500/- on July 9, 1945. Dhan Singh, a collateral of Surjit Singh, challenged the sale by way of a reversionary – suit. In the said litigation the High Court in second appeal by its judgment dated July 17, 1951 came to the conclusion that the part of the land sold by Surjit Singh was ancestral land and in respect of the said land there was no evidence to show that it was an act of good management. The High Court in its judgment dated July 17, 1951 held as under:-
“As half of the consideration should be held to be for ancestral land which would come to Rs. 590/- I, therefore, hold that the suit should be dismissed in regard to one half of the land and with regard to the other half, the sale should be converted into a mortgage, in that the plaintiff will be entitled to get the land after the death of alienee on payment of Rs. 590/-.”
3. It is obvious from the above quoted judgment of the High Court that the part of the sale was held to be not for legal necessity and, as such, to safeguard the interest of reversioners, the same was converted into mortgage and the right of the vendees to get the amount of Rs.590/- back was preserved. What was done by the High Court was most equitable under the circumstances.
4. Dhan Singh instituted the present suit for possession by way of redemption on the ground that Surjit Singh was not being heard of for the last more than 7 years and, as such, was presumed to be dead. He claimed redemption and possession on the basis of the High Court judgment dated July 17, 1951 (quoted above).
5. Although the suit instituted by Dhan Singh was for possession by way of redemption of the land in dispute but the lower appellate court and the High Court came to the conclusion that the suit was a simple suit for possession. The contention of the appellant that the suit was for redemption of mortgage and, as such, the limitation for filing the suit was 30 years, was rejected. The appellant was non-suited on the short ground that the suit filed by him being a suit for simple possession, it was barred by limitation. The lower appellate court gave its findings on the following reasoning:-
“The learned lower court, as well as the learned counsel for the parties, are in error in believing that technically there was a mortgage and that a suit for redemption was maintainable. I hold that the present suit was one for possession on the basis of a declaratory decree obtained by the plaintiff under the customary law and I hold further that for the purpose of limitation Articles 2 of the Schedule to the Punjab Limitation (Custom) Act will apply to the present case. According to Article 2(b) the period of limitation for bringing a suit for possession is three years, if a declaratory decree has already been obtained and the period begins to run from the date on which the right to sue accrues or the date on which the declaratory decree is obtained, whichever is later.
It is undisputed that the right to sue in the present case will arise on the death of the vendor because it is the death of the vendor which could give to the plaintiff a right to bring the suit for possession based upon the declaratory decree which had been granted in his favour by the Hon’ble High Court. Therefore, the question arises as to when the death of the vendor took place and whether taken from that date the suit was brought within three years.”
6. The lower appellate court further held as under:-
“Since in this case it would be presumed that the vendor was dead in the year 1962-63 which presumption has to be drawn as per evidence led by the plaintiff himself, it is clear that the suit was not brought within three years of that period and it was clearly time barred. I have already held above that by no stretch of imagination this suit can be treated as a suit for redeeming the property. This suit cannot be called legally as a suit for redemption of the property. It is a suit plainly for possession of the land subject to the condition that the plaintiff will have to pay Rs.590/- to the vendees as has been held by the Hon’ble High Court in its judgment Ex.p.3.”
7. The High Court upheld the findings of the lower appellate court in the following words:-
“Lastly, the learned counsel for the appellant argued that in the earlier litigation the High Court had converted the sale effected by Surjit Singh into a mortgage on 17th July, 1951 and the present suit for redemption of that mortgage is within limitation and 30 years period is prescribed under the Limitation Act, 1963 for such suits. His argument was that Surjit Singh would be presumed to be dead in view of section 108 of the Evidence Act as he was not heard of for the last 15 or 16 years prior to the filing of the suit by the persons who were expected to know about him and the plaintiff being his heir has a right to redeem. I am of the opinion that argument has no force. This court in the earlier litigation converted the sale into a mortgage in the notional sense i.e. Dhan Singh plaintiff was allowed to get the property on payment of Rs.590/- after the death of the alienor. Though the present suit has been framed as if it is a suit for redemption but actually it will be deemed to be a suit by the reversioner for possession of the land which had been alienated and which alienation has been successfully challenged under custom. The period of limitation for such suits will be governed by Punjab Limitation (Custom) Act.”
8. The short question for our consideration is whether the suit filed by the appellant was a suit for redemption or a suit for possession simpliciter. Mr. Vikram Mahajan, learned counsel for the appellant, vehemently contended that the High court by its judgment dated July 17, 1951 specifically converted the sale into a mortgage. According to him even if it is assumed that the said conversion was in the notional sense, a litigant cannot be penalised for understanding the simple language of the judgment and acting upon the same. We see considerable force in the contention of the learned counsel. We may, at this stage, refer to the reasoning of the trial court which is in the following words:-
“From this judgment, one can clearly gather that half of the sale was converted into the mortgage. The learned counsel for the defendant has urged that such a conversion of sale into the mortgage is not permissible and such a judgment is not binding upon the defendants. The argument is not tenable because a perusal of the judgment would indicate that the sale not held entirely to have been made for legal necessity and, therefore, to safeguard the interest of the reversioners, the sale to the extent of half was converted into the mortgage and the rights of the vendees to get the amount of Rs.590/- back were preserved in lieu of the return of the property which was the most equitable relief. In these circumstances, there is a further followed authority which is A.I.R. 1952 Pepsu 87, wherein it was held that where the sale was not for legal necessity, it would be converted to a mortgage. So, the mortgage stands as alleged by virtue of the judgment referred to above and I uphold the contention of the learned counsel for the plaintiff that the order of the Hon’ble High Court amounts to a creation of a mortgage.”
9. We are of the view that the respondents being parties to the earlier suit the decision of the High Court in the said suit was binding on them. It was not open to the appellate court and the High Court in the subsequent suit to proceed on the basis that the sale of half of the property was not converted into mortgage as a result of the earlier judgment of the High Court. We, therefore, set aside the findings of the lower appellate court and of the High Court on the said issue.
10. On the question of relief, we are of the view that in the facts and circumstances of this case, the ends of justice would be met if the appellant is permitted to take possession of only half of the land in dispute from the respondents. On September 29, 1993 this Court passed the following order:-
“The appeal is adjourned to October 12, 1993, to enable the parties to probe the possibility of settlement.”
11. Thereafter, the arguments were heard on October 27, 1993, and this court passed the following order:
“We have heard arguments from both sides. Mr. V.C. Mahajan, learned senior counsel appearing for the appellant states that his offer of leaving half the land to the respondents is still open. Mr. Kirpal Singh, learned counsel appearing for the respondents has not been able to have any response from his clients. We give him more time to contact his clients. List the matter in Chambers on 18.11.1993 at 1.40 P.M.”
12. Even on November 18, 1993, when we heard the arguments finally, the learned counsel for the respondents was unable to contact his clients. Keeping in view the fact that the respondents are in possession of the land for the last about 50 years and also the fair concession made by Mr. V.C. Mahajan, under instructions from his client, we direct that the appellant shall be entitled to possession from the respondents of half of the land in dispute. Any construction on the land or any wells etc. sunk by the respondents on the land shall remain in possession of the respondents. We direct the Tahsildar, Karnal, either himself or through a subordinate officer, to have the land in dispute distributed half and half in terms of our judgment.
13. We allow the appeal, set aside the judgment of the lower appellate court and the High Court and decree the suit of the appellant modifying the judgment of the trial court to the above extent. The parties shall bear their own costs.
1. This appeal is a sequel to a suit for possession by redemption of agricultural land measuring 268 kanals 6 marlas, situated a village Haibatpur, Tahsil and District Karnal (Haryana), instituted by the appellant-plaintiff in the year 1970. The suit was decreed by the trial court. The lower appellate court, however, set aside the judgment of the trial court and dismissed the suit. The High Court, in second appeal, declined to interfere with the findings of the lower appellate court. This appeal by way of special leave is by Dhan Singh appellant – plaintiff.
2. One Surjit Singh was the owner of the land in dispute. He sold 122 bighas 15 biswas (including the land in dispute) of agricultural land, a house and a bara to Nagina and Sher Singh, respondents – defendants for a sum of Rs. 2,500/- on July 9, 1945. Dhan Singh, a collateral of Surjit Singh, challenged the sale by way of a reversionary – suit. In the said litigation the High Court in second appeal by its judgment dated July 17, 1951 came to the conclusion that the part of the land sold by Surjit Singh was ancestral land and in respect of the said land there was no evidence to show that it was an act of good management. The High Court in its judgment dated July 17, 1951 held as under:-
“As half of the consideration should be held to be for ancestral land which would come to Rs. 590/- I, therefore, hold that the suit should be dismissed in regard to one half of the land and with regard to the other half, the sale should be converted into a mortgage, in that the plaintiff will be entitled to get the land after the death of alienee on payment of Rs. 590/-.”
3. It is obvious from the above quoted judgment of the High Court that the part of the sale was held to be not for legal necessity and, as such, to safeguard the interest of reversioners, the same was converted into mortgage and the right of the vendees to get the amount of Rs.590/- back was preserved. What was done by the High Court was most equitable under the circumstances.
4. Dhan Singh instituted the present suit for possession by way of redemption on the ground that Surjit Singh was not being heard of for the last more than 7 years and, as such, was presumed to be dead. He claimed redemption and possession on the basis of the High Court judgment dated July 17, 1951 (quoted above).
5. Although the suit instituted by Dhan Singh was for possession by way of redemption of the land in dispute but the lower appellate court and the High Court came to the conclusion that the suit was a simple suit for possession. The contention of the appellant that the suit was for redemption of mortgage and, as such, the limitation for filing the suit was 30 years, was rejected. The appellant was non-suited on the short ground that the suit filed by him being a suit for simple possession, it was barred by limitation. The lower appellate court gave its findings on the following reasoning:-
“The learned lower court, as well as the learned counsel for the parties, are in error in believing that technically there was a mortgage and that a suit for redemption was maintainable. I hold that the present suit was one for possession on the basis of a declaratory decree obtained by the plaintiff under the customary law and I hold further that for the purpose of limitation Articles 2 of the Schedule to the Punjab Limitation (Custom) Act will apply to the present case. According to Article 2(b) the period of limitation for bringing a suit for possession is three years, if a declaratory decree has already been obtained and the period begins to run from the date on which the right to sue accrues or the date on which the declaratory decree is obtained, whichever is later.
It is undisputed that the right to sue in the present case will arise on the death of the vendor because it is the death of the vendor which could give to the plaintiff a right to bring the suit for possession based upon the declaratory decree which had been granted in his favour by the Hon’ble High Court. Therefore, the question arises as to when the death of the vendor took place and whether taken from that date the suit was brought within three years.”
6. The lower appellate court further held as under:-
“Since in this case it would be presumed that the vendor was dead in the year 1962-63 which presumption has to be drawn as per evidence led by the plaintiff himself, it is clear that the suit was not brought within three years of that period and it was clearly time barred. I have already held above that by no stretch of imagination this suit can be treated as a suit for redeeming the property. This suit cannot be called legally as a suit for redemption of the property. It is a suit plainly for possession of the land subject to the condition that the plaintiff will have to pay Rs.590/- to the vendees as has been held by the Hon’ble High Court in its judgment Ex.p.3.”
7. The High Court upheld the findings of the lower appellate court in the following words:-
“Lastly, the learned counsel for the appellant argued that in the earlier litigation the High Court had converted the sale effected by Surjit Singh into a mortgage on 17th July, 1951 and the present suit for redemption of that mortgage is within limitation and 30 years period is prescribed under the Limitation Act, 1963 for such suits. His argument was that Surjit Singh would be presumed to be dead in view of section 108 of the Evidence Act as he was not heard of for the last 15 or 16 years prior to the filing of the suit by the persons who were expected to know about him and the plaintiff being his heir has a right to redeem. I am of the opinion that argument has no force. This court in the earlier litigation converted the sale into a mortgage in the notional sense i.e. Dhan Singh plaintiff was allowed to get the property on payment of Rs.590/- after the death of the alienor. Though the present suit has been framed as if it is a suit for redemption but actually it will be deemed to be a suit by the reversioner for possession of the land which had been alienated and which alienation has been successfully challenged under custom. The period of limitation for such suits will be governed by Punjab Limitation (Custom) Act.”
8. The short question for our consideration is whether the suit filed by the appellant was a suit for redemption or a suit for possession simpliciter. Mr. Vikram Mahajan, learned counsel for the appellant, vehemently contended that the High court by its judgment dated July 17, 1951 specifically converted the sale into a mortgage. According to him even if it is assumed that the said conversion was in the notional sense, a litigant cannot be penalised for understanding the simple language of the judgment and acting upon the same. We see considerable force in the contention of the learned counsel. We may, at this stage, refer to the reasoning of the trial court which is in the following words:-
“From this judgment, one can clearly gather that half of the sale was converted into the mortgage. The learned counsel for the defendant has urged that such a conversion of sale into the mortgage is not permissible and such a judgment is not binding upon the defendants. The argument is not tenable because a perusal of the judgment would indicate that the sale not held entirely to have been made for legal necessity and, therefore, to safeguard the interest of the reversioners, the sale to the extent of half was converted into the mortgage and the rights of the vendees to get the amount of Rs.590/- back were preserved in lieu of the return of the property which was the most equitable relief. In these circumstances, there is a further followed authority which is A.I.R. 1952 Pepsu 87, wherein it was held that where the sale was not for legal necessity, it would be converted to a mortgage. So, the mortgage stands as alleged by virtue of the judgment referred to above and I uphold the contention of the learned counsel for the plaintiff that the order of the Hon’ble High Court amounts to a creation of a mortgage.”
9. We are of the view that the respondents being parties to the earlier suit the decision of the High Court in the said suit was binding on them. It was not open to the appellate court and the High Court in the subsequent suit to proceed on the basis that the sale of half of the property was not converted into mortgage as a result of the earlier judgment of the High Court. We, therefore, set aside the findings of the lower appellate court and of the High Court on the said issue.
10. On the question of relief, we are of the view that in the facts and circumstances of this case, the ends of justice would be met if the appellant is permitted to take possession of only half of the land in dispute from the respondents. On September 29, 1993 this Court passed the following order:-
“The appeal is adjourned to October 12, 1993, to enable the parties to probe the possibility of settlement.”
11. Thereafter, the arguments were heard on October 27, 1993, and this court passed the following order:
“We have heard arguments from both sides. Mr. V.C. Mahajan, learned senior counsel appearing for the appellant states that his offer of leaving half the land to the respondents is still open. Mr. Kirpal Singh, learned counsel appearing for the respondents has not been able to have any response from his clients. We give him more time to contact his clients. List the matter in Chambers on 18.11.1993 at 1.40 P.M.”
12. Even on November 18, 1993, when we heard the arguments finally, the learned counsel for the respondents was unable to contact his clients. Keeping in view the fact that the respondents are in possession of the land for the last about 50 years and also the fair concession made by Mr. V.C. Mahajan, under instructions from his client, we direct that the appellant shall be entitled to possession from the respondents of half of the land in dispute. Any construction on the land or any wells etc. sunk by the respondents on the land shall remain in possession of the respondents. We direct the Tahsildar, Karnal, either himself or through a subordinate officer, to have the land in dispute distributed half and half in terms of our judgment.
13. We allow the appeal, set aside the judgment of the lower appellate court and the High Court and decree the suit of the appellant modifying the judgment of the trial court to the above extent. The parties shall bear their own costs.
