Umed Kaur v. Pritam Singh
Case Details
(O&M) 111 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (O&M) Reserved on 25.03.2025 Pronounced on : 28.05.2025 Nathu ….Appellant Babu Ram & ors. ….Respondents Versus CORAM: HON’BLE MR. JUSTICE PANKAJ JAIN ***** Present:- Mr. Amit Jain, Senior Advocate with Mr. Anupam Mathur, Advocate for the appellant. Mr. Akinchan Aggarwal, Advocate (Amicus Curiae) for the respondents. ***** PANKAJ JAIN, J. 1
Legal Reasoning
Plaintiff No.1-Nathu is in appeal. Plaintiffs filed suit seeking decree of declaration that they are owner of the suit land and also prayed for decree of possession. 2 As per the case of the plaintiffs Balwant son of Chhote, the common ancestor of the parties was owner of land. After death of Balwant, Hoshiar Singh father of defendants, Nathu-plaintiff No.1 and Smt.Umed Kaur-plaintiff No.2 succeeded to the estate of Balwant in equal shares. Mutation bearing No.66 dated 08.02.1945 was sanctioned in their favour. Nathu-plaintiff No.1 who was mortgagee in possession of the entire land POOJA SHARMA 2025.05.28 17:39 I attest to the accuracy and integrity of this document Page 1 of 6 (O&M) became mortgager as well as mortgagee to the extent of his share. The rights merged. Mutation No.97 was sanctioned by Revenue Authorities on 29.01.1947 in respect of entire land and plaintiff No.1 became co-owner in the entire land to the extent of 1/3rd share free from all encumbrances. In family settlement, plaintiff No.1 relinquished his rights qua the remaining land as well. Thus the land vested in all the co-sharers without there being any charge. Plaintiff No.2-Umed Kaur filed suit bearing Civil Suit No.241 titled as “Umed Kaur Vs. Pritam Singh”. The same was compromised. Plaintiff No.2 was declared to be absolute owner of her share. Plaintiff No.2 in compromise gave 1 killa bearing Rectangle No.23 to Pritam Singh. Partnership proceedings were carried out by Assistant Collector 2nd Grade on 24.10.1988. During partition proceedings, defendants were incorporated as mortgagee to the extent of 2/9 share. It was claimed that plaintiff No.1 was mortgagee to the extent of entire land. He retained his 1/6th share and only sold 5/6 share of plaintiff No.2 to Pritam Singh. There being no charge on the share of plaintiff No.1 and the share qua plaintiff No.2 having got redeemed vide Civil Court judgment dated 26.04.1974 entries in revenue record of defendants being mortgagee along with Pritam Singh are wrong, illegal and unlawful. 3 Suit was contested by the defendants denying the claim of the plaintiffs. As per the defendants they have become owner by lapse of time as the plaintiffs have lost their right to redeem the land by efflux of time. 4 On the basis of the pleadings following issues were framed :- “1-Whether after the decision of the civil suit dated 26.4.1974 the share of plaintiff No.2 became free from all the POOJA SHARMA 2025.05.28 17:39 I attest to the accuracy and integrity of this document Page 2 of 6 (O&M) encumbrances and charges and he become owner of the suit property ?OPP. 2-Whether the plaintiffs are co-sharer to the extent of 1/3rd share of the land detailed in para No.1 of the plaint? OPP. 3-Whether the plaintiff has no cause of action to file the present suit? OPD. 4-Whether the suit is not maintainable in the present form? OPD. 5-Whether the suit is bad for mis-joinder and non-joinderr of necessary parties? OPD. 6-Whether the suit has not been valued properly? OPD. 7-Whether the plaintiffs are estopped by their own act and conduct to file the present suit? OPD. 8-Whether the plaintiffs have become the owner of the by lapse of time? OPD. 9-Relief.” 5 Deciding issues No.1 & 2 Trial Court held that plaintiffs became absolute owner of their property free from all encumbrances. The plaintiffs are entitled to 2/3rd share of the suit property whereas defendants being heirs of Hoshiar Singh are entitled to remaining 1/3rd share. Each of the plaintiffs was declared to be absolute owner of 1/3rd share out of the suit land free from all encumbrances. Issues No.3 & 4, 5 to 8 were also decided in favour of the plaintiffs. Their suit was decreed. 6 The Appellate Court reversed the findings of the Court of the First Instance holding that plaintiff No.1-Nathu while appearing as PW-1 POOJA SHARMA 2025.05.28 17:39 I attest to the accuracy and integrity of this document Page 3 of 6 (O&M) admitted in his cross-examination that mortgagee rights with Babu and Tikam Singh (defendants) were never got redeemed. Possession of defendants over the suit land is admitted. The Appellate Court further held that it has come on record that the mortgage was continuing and was never redeemed. Defendants having continued in possession as mortgagees with possession, their mortgagee rights have perfected into ownership by prescription of time. 7 Counsel for the appellant-plaintiff No.1 has assailed the findings recorded by the Courts below. He submits that the conclusion drawn by Appellate Court regarding defendants having perfected their mortgagee rights into ownership by efflux of time is in the teeth of ratio of law laid down by Supreme Court in the case of Singh Ram Vs. Sheo Ram, 2014 AIR (SC) 3447. He submits that it is evident from the revenue record in the form of jamabandis for the year 1966-67, 1971-72, 1976-77 and 1981- 82 that there is no mortgage as claimed. Fard-badar was sanctioned vide order dated 14.03.1988. Nathu in his cross-examination admitted that the mortgagee rights with Babu and Tikam Singh were never redeemed. Thus, the Lower Appellate Court has rightly allowed the appeal preferred by the defendants. 8 I have heard learned counsel for the parties and have gone through the records of the case. 9 The facts discernible from the record show that the estate belongs to one Balwant son of Chhote. Balwant mortgaged property with one Lajja Ram. Balwant had three sons namely Mukhtiar Singh, Akhtiar Singh & Hoshiar Singh. Mukhtiar Singh is succeeded by his son Nathu- POOJA SHARMA 2025.05.28 17:39 I attest to the accuracy and integrity of this document Page 4 of 6 (O&M) plaintiff No.1. Umed Kaur-plaintiff No.2 is widow of Akhtiar Singh. Defendant No.1 Babu Ram and defendant No.2 Tikam Singh are sons of Hoshiar Singh. 10 Lajja Ram sold his mortgagee rights in favour of Pritam Singh Singh. Pritam Singh sold the same in favour of plaintiff No.1-Nathu. Mortgagee rights merged with the ownership rights of Nathu and he became absolute owner of his 1/3rd share which was without any encumbrance. 1/3rd share of plaintiff No.2 was subject matter of suit bearing No.241 decided on 26.04.1974 vide Ex.P-16. Umed Kaur-plaintiff No.2 was declared absolute owner in possession of the suit land except killa bearing Rectangle No.23 admeasuring 8K-0M. The Lower Appellate Court ignored the fact that after 1961-62 entries were in favour of the plaintiffs showing them absolute owners. The same were changed after more than two decades that too by a Fard-badar prepared on 14.03.1988. 11
Legal Reasoning
Learned counsel for the respondents has not been able to show as to how the entries were incorporated in jamabandis and allowed to continue for more than 20 years could be changed by fard-badar. Lower Appellate Court ignoring the aforesaid documentary evidence relied upon cross-examination of PW-1, wherein the fact of mortgagee rights with Babu and Tikam Singh having never been redeemed was admitted and the suit filed by the plaintiffs was dismissed holding defendants to have become absolute owners by efflux of time. The aforesaid finding recorded by the Lower Appellate Court is in teeth of ratio of law laid down in Sheo Ram’s case supra wherein Supreme Court observed as under :- POOJA SHARMA 2025.05.28 17:39 I attest to the accuracy and integrity of this document Page 5 of 6 (O&M) “15. We, thus, hold that special right of usufructuary mortgagor under Section 62 of the Transfer of Property Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly.” 12 In view of above, this Court finds that the judgment passed by Lower Appellate Court being in the teeth of ratio of law laid down in Sheo Ram’s case supra cannot be sustained and is hereby set aside. 13 As a sequel of the discussion held hereinabove, present appeal is allowed. Suit filed by the plaintiffs is ordered to be decreed. Judgment and decree passed by the Trial Court is ordered to be maintained and that passed by the Lower Appellate Court is quashed. 28.05.2025 Pooja Sharma-I ( PANKAJ JAIN ) JUDGE Whether speaking/reasoned: Whether reportable: Yes/No Yes/No POOJA SHARMA 2025.05.28 17:39 I attest to the accuracy and integrity of this document Page 6 of 6