High Court Punjab-Haryana High Court

Ass Mohammad vs Mohammad Hanif And Another on 25 September, 2008

Punjab-Haryana High Court
Ass Mohammad vs Mohammad Hanif And Another on 25 September, 2008
R.S.A. No. 1592 of 2003                                    -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                       C.M. No. 4604-C of 2003 and
                                       R.S.A. No. 1592 of 2003

                                       Date of Decision: 25.9.2008

Ass Mohammad                                               ...Appellant.

             Versus

Mohammad Hanif and another                                 ...Respondents.


CORAM:-      HON'BLE MR. JUSTICE AJAY KUMAR MITTAL.

PRESENT: Mr. O.P Sharma, Advocate for the appellant.

             Mr. Amit Sharma, Advocate for the respondents.


AJAY KUMAR MITTAL, J.

Being unsuccessful before the courts below, the plaintiff

has approached this Court by way of present regular second appeal

against the judgment and decree dated 20.2.2002 passed by the lower

appellate court affirming that of the trial court dated 15.9.1999 whereby

the suit of the plaintiff for declaration and permanent injunction was

dismissed.

Briefly stated, the facts of the case are that the plaintiff was

mortgagee in possession of the agricultural land comprising in khewat

No. 54 khata No.85, rectangle No.65, killa No.5/1 measuring 4 kanals

18 marlas situated in the revenue estate of village Fatehpur Taga

(hereinafter referred to as the “suit land”) as the same was initially

mortgaged with possession by the predecessors-in-interest of the

defendants with his predecessors-in-interest. It was pleaded that the

suit land was not got redeemed by the defendants or their

predecessors-in-interest and the period of limitation for redemption of
R.S.A. No. 1592 of 2003 -2-

the mortgage had already expired and the mortgagee rights of the

plaintiff had matured into proprietory rights with the passage of time. It

was further pleaded that the plaintiff was entitled to be recorded as

absolute owner in possession of the suit land by way of a mutation in

the revenue records and the defendants had no right, title or interest in

the same. The plaintiff made several requests to the defendants to

admit his claim but they refused to do so and that gave rise to the filing

of the suit seeking a decree for declaration and permanent injunction.

The claim of the plaintiff was resisted by the defendants by

filing a joint written statement and raising various preliminary objections

therein. It was pleaded that defendant No.1 was the owner in

possession of the suit land which came to him in the preemption decree

dated 24.10.1983 passed in Civil Suit No. 286 of 14.5.1981 titled as

Mohammad Hani Vs. Suraj Mal and prior to him one Suraj Mal was

owner of the same who purchased from defendant No.2. It was further

pleaded that the suit land was redeemed on 2.6.1964 by defendant

No.2 on payment of Rs.250/- to the plaintiff as redemption money who

executed a receipt in token thereof in favour of defendant No.2. It was

also pleaded that on redemption possession of the suit land was

handed over to defendant No.2 and the plaintiff had no concern with the

same.

The trial court vide judgment and decree dated 15.9.1999

dismissed the suit of the plaintiff holding that the suit land was got

redeemed by defendant No.2 on payment of the redemption money to

the plaintiff vide receipt Ex.D1 and the revenue record showing the

plaintiff as mortgagee-in-possession was liable to be corrected.
R.S.A. No. 1592 of 2003 -3-

Further, it was observed that defendant No.1 had become owner in

possession of the suit land by way of preemption. Feeling aggrieved,

the plaintiff filed an appeal before the lower appellate court which vide

judgment and decree dated 20.2.2002 affirmed the findings recorded by

the trial court and dismissed the appeal.

I have heard the learned counsel for the parties and

perused the record with their assistance.

Learned counsel for the plaintiff-appellant has submitted

that the courts below have erred in relying upon the receipt, Ex.D1,

executed in 1964 regarding the payment of the mortgage amount as the

same was not a registered document. He has relied upon a Division

Bench judgment of this Court in Gurdial Singh and others v. Kartar

Singh and others, 1963 PLJ 341 in support of his aforesaid

submission.

Learned counsel for the respondents has controverted the

aforesaid submission and urged that vide notification No. S.O.

75/C.A.4/1882/ S.1/67 dated 5.8.1967 provisions of Section 59 of the

Transfer of Property Act, 1882 (in short “the Act”) where the mortgage

was to be by a registered document were extended to the State of

Haryana with effect from the date of its publication and, therefore, the

mortgage which was redeemed prior to the aforesaid date would not be

governed by the provisions of Section 59 of the Act.

I find considerable force in the submission of the learned

counsel for the respondents.

Section 59 of the Act reads as under:-

“59. Mortgage when to be by assurance.- Where
R.S.A. No. 1592 of 2003 -4-

the principal money secured is one hundred rupees

or upwards, a mortgage other than a mortgage by

deposit of title deeds can be effected only by a

registered instrument signed by the mortgagor and

attested by at least two witnesses.

Where the principal money secured is less

than one hundred rupees, a mortgage may be

effected either by a registered instrument signed and

attested as aforesaid or except in the case of a

simple mortgage by delivery of the property.”

Section 59 of the Act postulates that where the principal

amount secured is Rs.100/- or more on immovable property, the

instrument of mortgage is required to be registered, signed by the

mortgagor and attested by at least two witnesses. There is, however,

an exception to this provision in a case where mortgage is by deposit of

title deeds. Accordingly, on the same principles, similarly at the time of

extinction of mortgage covered by Section 59, a receipt for payment of

money under a mortgage other than an endorsement on a mortgage

deed (which is issued by a mortgagee) mentioning not only the payment

of the full mortgaged amount but also the extinction of mortgage would

require registration.

Admittedly, the property in the present case is situated in

Faridabad District within the State of Haryana where provisions of

Section 59 of the Act had not been made applicable at the time of

original mortgage. It was only on August 5, 1967 that the provisions of

the said Section came to be extended to the State of Haryana by the
R.S.A. No. 1592 of 2003 -5-

following notification:-

“No. S.O. 75/C.A.4/1882/S.1/67.- In exercise of the

powers conferred by section 1 of the Transfer of

Property Act, 1882 (Central Act No. 4 of 1882), the

Governor of Haryana is pleased to extend the

provisions of section 59 of the said act to the State of

Haryana with effect from the date of publication of

this notification in the Official Gazette.

B.R. GREWAL,
Financial Commissioner, Revenue and
Secretary to Government, Haryana,
Revenue Department.”

In view of the above said notification and date of its

enforcement, it is manifest that prior to 5th August, 1967, there was no

impediment in creating a mortgage either orally or by an unregistered

instrument. The extinction of mortgage vide receipt, Ex.D1, on

2.6.1964, i.e. prior to enforcement of provisions of Section 59 of the Act

to the State of Haryana by an unregistered instrument was legal and

valid. The reliance on Gurdial Singh’s case (supra) by the learned

counsel for the appellant is, thus, no help to him.

Both the courts on appreciation of the oral as well as the

documentary evidence arrived at a conclusion that the suit land was got

redeemed by the defendants on payment to the plaintiff vide receipt

Ex.D1 and that defendant No.1 had become owner in possession of the

same by pre-empting the sale made by defendant No.2

No illegality or perversity could be found in the judgment

and decree dated 15.9.1999 passed by the trial court which was

affirmed vide judgment and decree dated 20.2.2002 by the learned
R.S.A. No. 1592 of 2003 -6-

lower appellate court in appeal.

In view of the above, there is no merit in this appeal and the

same is hereby dismissed.

Since the appeal has been dismissed on merits, no

separate order is being passed in C.M. No. 4604-C of 2007 for

condonation of 324 days’ delay in refiling the appeal and the same is

disposed of as such.

September 25, 2008                             (AJAY KUMAR MITTAL)
gbs                                                    JUDGE