Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.180 of 1974 Against the Judgment and Decree dated 19.12.1973 passed by 5th Addl. Subordinate Judge, Chapra in Title Appeal No.221 of 1964 reversing the Judgment and Decree dated 25.07.1964 passed by Munsif 2nd Court, Siwan in Title suit No.115 of 1960. ==================================================== Arun Kumar Sinha & Ors ..........Defendants-respondents-Appellant/s Jagarnath Sahay & Ors Versus .......Plaintiffs-appellants-respondents ==================================================== Appearance : For the Appellant/s : Mr. Dhruv Naraian, Sr. Advocate Mr. Jitendra Prasad Singh, Advocate Ms. Indu Kumari Srivastava, Advocate For the Respondent/s : Mr. Udit Narain Singh, Advocate Mr. Sanjay Kumar Singh, Advocate ==================================================== Dated : 17thday of December, 2013 P R E S E N T CORAM : THE HON’BLE MR. JUSTICE MUNGESHWAR SAHOO CAV J U D G M E N T 1. The defendants have filed this Second Appeal against the Judgment and Decree dated 19.12.1973 passed by the learned 5th Addl. Subordinate Judge, Saran at Chapra in Title Appeal No.221 of 1964 whereby the learned lower appellate Court reversed the Judgment and Decree of the
Legal Reasoning
trial Court dated 25.07.1964 passed by the learned Munsif, IInd Court Siwan in Title Suit No.115 of 1960. 2 Patna High Court SA No.180 of 1974 dt.17-12-2013 2 / 8 2. The plaintiff respondent filed the suit for redemption and for possession of the suit property and further prayed for decree for the mortgage money amounting to Rs.161/- with interest and mean profits. The plaintiff prayed the relief of redemption alleging that one Tapsi Lal with others were co-sharer landlord of Tauzi No.1458 and 1459. The defendants are the descendant of Tapsi Lal who inherited the property of Tapsi. Butan Dusadh and Ram Ratan Dusadh had Gorait Jagir over the lands measuring 3 bigha 5 katha 8 dhur. Butan and Ram Ratan gave the land in zarpeshgi to Tapsi Lal, the ancestor of the defendants on 20.06.1911 for Rs.161/- and Tapsi Lal came in possession of the land as zarpeshgidar. The date of redemption was fixed as 1322 Fasli. On the death of Tapsi, his descendant, i.e., the defendant No.1 to 7 came in possession of the land and they sold the same in favour of defendant No.8 to 15 who came in possession. According to the plaintiff, Ram Ratan died issueless and Butan died leaving his son Kanhai and Darbari. They inherited the entire family property of Ramratan and Butan. Kanhai and Darbari sold the Jagir land to the plaintiff and on 12.09.1959 the plaintiff purchased the land for Rs.5511/-. Zarpeshgi amount was kept for payment of the same. Prior to sale in favour of plaintiff, Kanhai and Darbari had tendered the amount to defendant No.1 to 7 and then the defendant No.8 to 15 but they refused. 3. The defendants filed contesting written statement. According to the defendants, the main defence of defendant No.1 to 3 is that defendant No.4 to 7 are not the heirs of Tapsi. The grand son of Tapsi have not been added as party, therefore, the suit is bad for non-joinder of necessary party. Butan and Ramratan held the land as their Gorait Jagir and it was not their ancestral land. Tapsi Lal was not the zarpeshgidar. The suit land was the Bakast land of defendant No.1 and 2 and also Banke Prasad, the deceased 3 Patna High Court SA No.180 of 1974 dt.17-12-2013 3 / 8 brother of defendant No.1. The defendant No.8 to 15 are zarpeshgidar from defendant No.1 and 2. Kanhai and Darbari had no concern with Ramratan and Butan Dusadh. The sale deed if any in favour of plaintiff are fabricated document without any consideration and plaintiff did not acquire title nor the plaintiff has the right to redeem. Tapsi Lal had appointed Jai Singh Dusadh as Gorait and in lieu of remuneration he gave 3 bigha 10 katha 15 dhur of his Bakast land to Jai Singh to work as Gorait. On his death Ramrantan and Butan agreed to work as Gorait and landlord gave the land to them in same terms and conditions that the land will remain in possession till they work as Gorait. Therefore, it was recorded as such, i.e., Gorait Jagir in khata No.170 in the name of Ramratan and Butan. No doubt zarpeshgi was executed in favour of Tapsi but the said zarpeshgi was redeemed in the month of Jeth 1920 on payment of Rs.161/- and Tapsi Lal resume khas possession. In collectorate partition between the co-sharer landlords, the suit land fell in the share of Tapsi Lal and Md. John Saheb. Ram Ratan died in the year 1925 and Butan left the village as such they did not work as Gorait of Malik, therefore, the Malik resume khas possession over the Bakast land which was given as Jagir to Ramratan and Butan. There was private arrangement between the co-sharer landlord and the suit land was allotted to Tapsi and after his death the defendant No.1, 2 and 3 are in possession. The defendant No.13 to 15 filed the written statement as that of the contesting defendants. 4. The trial Court after trial came to the conclusion that Kanhai and Darbari never work as Gorait as such they have no right, title and interest left in the land , therefore, they cannot confer any title on the plaintiff. Butan had left the service and had abandoned the land. The heirs of Jagirdar had no right, title or interest over the Jagir lands. Accordingly, the suit for 4 Patna High Court SA No.180 of 1974 dt.17-12-2013 4 / 8 redemption was dismissed. The plaintiff filed appeal before the lower appellate Court. The lower appellate Court held that there was no redemption of the mortgage bond of the year 1911. Tapsi Lal was the mortgagee and not the Bakast holder. The defendant No.1 and his heirs are in possession as zarpeshgidar. Kanhai Dusadh is also one of the plaintiff, therefore, the plaintiff were entitled to a decree. Accordingly, the Judgment and Decree of the trial Court was set aside and the plaintiff’s suit for redemption was decreed. 5. At the time of admission of the Second Appeal on 14.04.1980, the following two substantial questions of law were formulated :- (i) (ii) As to whether the transfer by Darari an Kanhai sons of Butan being hit of Section 49 C of Bihar Tenancy Act, convey any title to the plaintiffs. Whether the plaintiffs acquired any title with regard to the Goraiti Jagir by virtue of a sale in their favour in the year 1959. 6.
Legal Reasoning
The learned senior counsel, Mr. Dhruv Narain appearing on behalf of the appellant submitted that without permission, the vendor of the plaintiff could not have sold the property in favour of the plaintiff in 1959 because in view of Section 49 C of the Bihar Tenancy Act, permission is required. Therefore, the plaintiff had no right to redeem the property. The learned counsel further submitted that the Goraiti land could not have been sold because the vendor of the plaintiff had already abandoned the land, therefore, the landlord came in possession of the property. On these grounds, the learned counsel submitted that both the substantial question of law be answered in favour of the appellant. 7. At the time of hearing of the second Appeal, the learned counsel raised other substantial question of law and submitted that the redemption suit by the heir of Ram Ratan and Butan cannot be held to be maintainable in 5 Patna High Court SA No.180 of 1974 dt.17-12-2013 5 / 8 view of Section 91 of the Transfer of Propriety Act. Secondly, the learned counsel submitted that there is no pleading and evidence that they continued to render service to landlord who were in possession of the land. Therefore, they have no right to transfer but the learned lower appellate Court without considering the reasoings of the trial Court reversed the finding of the trial Court by which the trial Court has held that the suit is not maintainable. Whether in absence of pleading and evidence the Gorait Jagir can be saved from vesting in view of Section 6 of Bihar Land Reforms Act. According to the learned counsel, the vendor of the plaintiff had already abandoned the land, thereafter, Tapsi Lal resumed possession. On the date of vesting Tapsi Lal, his descendant were in khas possession, therefore, their names were mutated. The suit has not been filed by the mortgagor. Unless the plaintiff proved that he derived title by registered sale deed, he has no right to file the redemption suit and the trial Court held that the plaintiff had not derived title by sale deed because the vendor could not have sold the land which was Goraiti Jagir. 8. On the other hand, the learned counsel, Mr. Udit Narain Singh submitted that this is a simple suit for redemption. The defendants admitted that mortgage deed was executed in the year 1911 and the time fixed for redemption was 1322 Fasti, i.e., 1915. Prior to the amendment in the Limitation Act in the year 1963, the period for redemption was 60 years. The present suit have been filed in the year 1960 for redemption, therefore, it is within time. So far right to redeem by the plaintiff is concerned, he is purchaser from the mortgagee. The mortgagee has no right to challenge the right of the plaintiff. The registered sale deed is of the year 1959. The defendants never challenged the genuineness or otherwise of the sale deed and according to Limitation Act, the period for declaration or setting aside the 6 Patna High Court SA No.180 of 1974 dt.17-12-2013 6 / 8 sale deed is only 3 yeas. The finding of the lower appellate Court is that Tapsi Lal was the mortgagee and the mortgage was never redeemed, therefore, Tapsi Lal continued in possession as mortgagee and not as Bakast land holder. In view of Section 6, the Gorait Jagir never vested and after vesting of Jamindari, the nature of Goraiti land changed to Raiyati land. On these grounds, the learned counsel submitted that the substantial question of law formulated or raised by the learned counsel at the time of hearing do not arise for consideration in this Second Appeal. Therefore, the Second Appeal be dismissed. 9. So far first substantial question of law is concerned, it may be mentioned here that the Full Bench decision of this Court reported in the case of Bhageran Thakur Vs. Kewal Singh 1969 P.L.J.R. 30 has struck down Section 49 C of the Bihar Tenancy Act. Therefore, the substantial question of law No.(i) does not arise for consideration. So far the substantial question No.(ii) is concerned, it relates to the title of the plaintiff. Admittedly, the plaintiff has purchased the property in the year 1959. The registered sale deed have been produced by the plaintiff. This sale deed was never challenged by the defendant on the ground of either it is void or it is voidable. The submission of the learned counsel for the appellant is that the vendor had no title because they were not serving as Gorait is concerned, it may be mentioned here that the defendants admitted that mortgage deed was executed in the year 1911. The specific case of the appellant that it was redeemed in 1920 has been disbelieved by the lower appellate Court and the lower appellate Court specifically recorded the finding that the mortgage deed was not redeemed as alleged by the defendants appellants. Tapsi was in possession of the property as mortgagee and after his death, his heirs are in possession as mortgagee. Now, therefore, there is no question of deciding 7 Patna High Court SA No.180 of 1974 dt.17-12-2013 7 / 8 here as to whether the mortgagor were working as Gorait or not. The simple question, if mortgage has not been redeemed then the transferee from plaintiff has a right to redeem the mortgage within limitation period. According to Section 59 A of the Transfer of Property Act. The term “mortgagor” include persons deriving title from them. Admittedly, the plaintiff had derived title from the mortgagor. In such circumstances unless it is proved that the mortgage has been redeemed, the right to redeem of the plaintiff cannot be denied. Here as stated above, the finding of the lower appellate Court recording the fact that mortgage has not been redeemed is a pure finding of fact. Therefore, it cannot be interfered with in Second appellate jurisdiction. 10. So far acquisition of title is concerned, it may be mentioned here that according to Section 6 of the Bihar Lands Reforms Act, the Goraiti Jagir never vested, therefore, the landlord who was mortgagee continued as mortgagee even after vesting. After vesting, the nature of the Jagir did not remain as Goraiti Jagir rather it became the raiyati land of the mortgagor and the mortgagee was in possession. Therefore, the mortgagor has the right to sell the property and has been sold by him in the year 1959 in favour of plaintiff. Further when the vendors of the plaintiff admitted to have sold the property who had been examined as witnesses, the mortgagee has no right to challenge the title of the plaintiff. So far the ground raised at the time of hearing regarding Section 91 of the Transfer of Property Act is concerned, it may be mentioned here that Section 91 of the Transfer of Property Act provides that any other persons mentioned therein besides the mortgagor may redeem the property. In such view of the matter, it is not the absolute law or rule that only the mortgagor can redeem the mortgage. Therefore, this question do not arise for consideration in this Second Appeal. 8 Patna High Court SA No.180 of 1974 dt.17-12-2013 8 / 8 11.
Decision
In view of the above discussion, it appears that none of the points raised by the learned counsel for the appellant are substantial question of law arises for consideration in this appeal. So far the substantial question of law formulated at the time of admission are concerned as has been held above one has been struck down by the Full Bench of this Court and other is answered in favour of the respondent and against the appellant. 12. In the result, this Second Appeal is dismissed with cost of RS.10,000/- to be paid by the appellant to the plaintiff respondent within 2 months failing which the plaintiff respondent is at liberty to realise the same through the process of the Court. (Mungeshwar Sahoo, J.) Sanjeev/-