Nachhatar Kaur & Ors. v. State of Haryana & Ors.

Hon'ble Mr. Justice J.S.Khehar Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Dr. Surya Parkash, Advocate for the petitioners -.- J.S.Khehar , J. (Oral) Through the instant writ petition, the petitioners have impugned the interim order passed by the Collector, Tohana, on 27.10.2008 (Annexure P-1). From the impugned order dated 27.10.2008, it emerges, that respondent No. 3 had given the land, which is subject matter of the present controversy, to Gurlal Singh by way of mortgage. In order to redeem the same, respondent No. 3 filed a suit under the provisions of the Redemption of Mortgages (Punjab) Act, 1913. While doing so, respondent No. 3 deposited the entire mortgage amount, i.e. Rs.3,75,000/- with the Bank on

19.07.2008 in the name of Gurlal Singh. Having discharged the mortgage liability, respondent No. 3 sought redemption. During the course of pendency of the redemption suit initiated by respondent No. 3, the Collector, Tohana, passed an interim order dated Civil Writ Petition No. 19561 of 2008 2

27.10.2008 (Annexure P-1), allowing the petitioners to harvest the Khariff crop standing on the land in question, but directed the petitioners not to sow the Rabbi crop on the land. Aggrieved by the aforesaid interim order, the petitioners have approached this Court. The first contention advanced by the learned counsel for the petitioners is, that the land in question was mortgaged by respondent No. 3 in the name of Gurlal Singh, and as such, no order can be passed so as to effect the right of the petitioners, herein. An application for redemption in respect of mortgage executed in the name of Gurlal Singh can only be filed in the name of Gurlal Singh and none else. We have considered the aforesaid contention advanced by the learned counsel for the petitioners. During the course of hearing, learned counsel for the petitioners acknowledges, that the land in the hands of the petitioners is the one, which has been mortgaged by respondent No.

3 in the name of Gurlal Singh. It is also acknowledged, that the aforestated Gurlal Singh is the husband of petitioner No. 1, Nachhatar Kaur, and the father of petitioners No. 2 and 3, Mandeep Singh and Veerpal Kaur. In view of the above, undisputed factual position as has been noticed hereinabove, it emerges, that the rights of the petitioners are only flow through Gurlal Singh. In sofar as the claim of Gurlal Singh is concerned, the same has been fully discharged, inasmuch as, a sum of Rs.3,75,000/- has been deposited with the Bank in the name of Gurlal Singh. That being so, the first issue raised by the learned counsel for the petitioners is wholly misconceived and is accordingly declined. The second contention advanced by the learned counsel for the Civil Writ Petition No. 19561 of 2008 3 petitioners is based on the entry made in the jamabandi for the years 2003- 04, copy whereof has been placed on the record of this case as Annexure P-4.

On the strength of the jamabandi(Annexure P-4), it is the vehement contention of the learned counsel for the petitioners, that the petitioners, including Gurlal Singh and respondent No. 3 must be deemed to be shareholders of the land in question, and as such, the interim order was clearly impermissible in the absence of the finalization of partition proceedings between the shareholders. We have considered the second submission advanced by the learned counsel for the petitioners as has been noticed in the foregoing paragraph. In our view, the second contention advanced by the learned counsel for the petitioners is also clearly misconceived. Having acknowledged the claim of respondent No. 3 by not disputing the factum of mortgage of the land in question in the hands of Gurlal Singh, we are of the view, that the reliance of the petitioners on the jamabandi for the year 2003-04 (Annexure P-4), is clearly unjustified.

Once the land, under reference, was mortgaged by respondent No. 3 in the name of Gurlal Singh, it stands acknowledged, that Pohla Singh (respondent No.3) was owner thereof, and that, Gurlal Singh and his successor-in-interest, if any, have the status of a mortgagee in possession and nothing more than that. An entry in the jamabandi cannot negate the right created by a document of mortgage. In this view of the matter, we find no merit even in the second contention advanced by the learned counsel for the petitioners. The last contention advanced by the learned counsel for petitioners is based on the mandate of Section 7 of the Redemption of Civil Writ Petition No. 19561 of 2008 4 Mortgages (Punjab) Act, 1913. On the strength of the Section 7 of the said Act, it is the submission of the learned counsel for the petitioners, that the prescribed authority could only decide the issue of redemption and had no authority, whatsoever, to pass the instant interim order.

We have considered the last submission advanced by the learned counsel for the petitioners as has been noticed in the foregoing paragraph. In our view, the authority, which is vested with the right to pass an order of redemption, is also vested with the authority to grant lesser relief during the process of the proceedings pending before him. Having passed the interim direction vide order dated 27.10.2008, the authority, under reference, namely, the Collector, Tohana, cannot be deemed to have exceeded his jurisdiction. The aforesaid impugned order was fully justified in the facts and circumstances of this case, namely, that the entire redemption amount of Rs.3,75,000/- was deposited by respondent No. 3 in a Bank account in the name of the mortgagee, namely, Gurlal Singh (through whom the petitioners are claiming their rights). Having done so, the petitioners, herein, certainly have no authority to continue to cultivate the land in question.

The Collector, Tohana, has, therefore, rightly directed the petitioner not to cultivate the land in question. Having considered the submissions advanced by the learned counsel for the petitioners, we are satisfied, that a totally frivolous petition has been filed at the hands of the petitioners, so as to impugn the order passed by the Collector, Tohana dated 27.10.2008 (Annexure P-1). In the facts and circumstances of the case, we are satisfied, that the instant writ petition deserves to be dismissed with costs and the same is accordingly Civil Writ Petition No. 19561 of 2008 5 dismissed with costs of Rs.25,000/-. The costs shall be deposited by the petitioners with the Legal Services Authority, Haryana within one month from today, and the receipt thereof, shall be placed on the record of this case. In case, the aforesaid costs are not deposited within the stipulated time, the Registry is directed to re-list the case, in motion hearing for recovery of the costs. [J.S.Khehar] Judge [Nirmaljit Kaur] Judge November 19, 2008