Regular Second Appeal No. 419 of 1987 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Regular Second Appeal No. 419 of 1987
Date of Decision: August 26, 2009
Gurbaz Singh alias Baja Singh ......... Appellant
versus
Bhal Singh and others .......... Respondents
1.Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Present:- Shri C.B. Goel, Advocate for the appellant.
Shri V.K. Jindal, Advocate for the respondent
Shri Sanjeev Manrai, Advocate for respondent No.34
HEMANT GUPTA, J.
The plaintiff is in second appeal arising out of the judgment
and decree passed by the learned Courts below dismissing his suit for
possession of land measuring 321 Kanals 13 Marlas.
The plaintiff and defendants No. 9 to 15 claim to be the owners
of land measuring 321 Kanals 13 Marlas being the descendants as well
heirs and successors of Phulla Singh s/o Partap Singh. Defendants No.1 to 8
are alleged to be in illegal and unauthorized possession of the suit land. It
Regular Second Appeal No. 419 of 1987 [2]
was pleaded that Sunder Singh, brother of Phulla Singh, has never
mortgaged any land with the predecessor-in-interest of defendants No.1 to 8
and, thus, the plaintiff claimed possession of the suit land as owner. In the
alternative, it was pleaded that if it is held that defendants No.1 to 8 are the
mortgagees then the plaintiff claimed a decree for possession by redemption
of the mortgage.
In the written statement, it was pleaded that the plaintiffs have
sought possession though the period of redemption has expired and that the
defendants are occupying the land in dispute for the last more than 30 years
and as such they have become the owners by adverse possession.
One of the issues framed was whether the plaintiff and
defendants No. 9 to 15 are the owners of the suit land and whether the suit
land was mortgaged with defendants No.1 to 8 and they have become
owners of land by prescription. Both the learned Courts below have
returned concurrent finding of fact on the basis of revenue record Exhibit P-
2 and P-3 that the plaintiffs are the owner of the suit land. The Court also
considered the entire evidence of the defendants to the effect that the
predecessor-in-interest of the plaintiff and defendants No.9 to 15 had
mortgaged the land in West Pakistan with the predecessor-in-interest of
defendants No.1 to 8 and after partition the suit land was allotted to them in
lieu of the land left by them in Pakistan. Thus, it was alleged that they are in
possession of the same as mortgagees and thereafter they have become
owners as plaintiff has failed to redeem the same within the prescribed
period.
Issue No.3 which is a material issue reads as under:-
Whether the suit land was mortgaged with defendant Nos. 1 to
8 and they have become the owners of the same by way of
Regular Second Appeal No. 419 of 1987 [3]
prescription, as alleged ? OPD 1 to 8
On the said issue, learned trial Court returned a finding on the
basis of Exhibit D-1, claim for allotment of land in lieu of land owned and
left by Sunder Singh s/o Partap Singh in Pakistan. As per Khatoni Istemal
Exhibits P-13 and P-14, the land in dispute was allotted to defendants No.1
to 8 or their predecessors-in-interest. The same is possession of the
defendants which is evident from the jamabandi Exhibit D-12 for the year
1960-61, Exhibit D-11 jamabandi for the year 1972-73. DW4 Bhagat Ram,
Clerk of Land Claim Office, Jullunder, has deposed that as per record
Sunder Singh s/o Partap Singh submitted claim for allotment of land in lieu
of land left by him in Pakistan. The land measuring 23 Acres 3 Kanals was
mortgaged with Sunder Singh etc for Rs.2500/- and another piece of land
measuring 27 Acres 6 Kanals 10 Marlas was mortgaged with Phulla Singh
for Rs.2500/-. DW5 Bahal Singh defendant No.1 has deposed that the land
in question was owned by Sunder Singh s/o Partap Singh and was
mortgaged 6-7 years prior to the partition of the country. The land in
question was Banjar and they made it cultivable by installing five tube-wells
incurring expenditure to the tune of Rs.7000/- on each tube-well. They spent
about Rs.50000/- to 60,000/- on improvement of land. Learned counsel for
the defendants has raised the following argument before the learned trial
Court:-
” On the basis of this evidence, it has been vehemently argued
by Mr. Bedi, the learned counsel for defendants No.1 to 8, that
it is clear from the aforesaid evidence that Sunder Singh son of
Partap Singh mortgaged land in Pakistan with the predecessor-
in-interest of the present defendants No.1 to 8 and thereafter the
land in question was allotted to them in lieu of the land left by
them in Pakistan. He further urged that it is clear from Exhibit
Regular Second Appeal No. 419 of 1987 [4]
D-1 that Phulla Singh brother of Sunder Singh submitted an
application in the year 1959 for the redemption of the said land
but that was dismissed and as such they brought improvement
on the said land by incurring expenditures to the tune of
Rs.50,000/- to Rs.60,000/- considering themselves as owners”.
The argument of learned counsel for the plaintiff before the
learned trial Court was that since the original mortgage deed or in the
alternative secondary evidence in the shape of certified copy of the same has
not been produced so as to disclose the period of mortgage, defendants No.1
to 8 have not become owners of the suit land. While considering the
secondary evidence in respect of mortgage, it was held that the contents of a
registered mortgage deed can only be proved either by registered deed or a
certified copy thereof and no other evidence can be looked into. The Court
concluded to the following effect: –
“…. I have come to the conclusion that the defendants No.1 to 8
having failed to place on record the original registered
mortgage deed (as admitted by D.W.5 Bahal Singh) or a
certified copy thereof by obtaining permission to lead
secondary evidence cannot be considered to have become
owners of the suit land on the ground that the plaintiff and
defendants No. 9 to 13 or their predecessor-in-interest have
failed to get the same redeemed. Issue No.3 is, thus, decided in
favour of the plaintiff and against the defendants No.1 to 8”.
On Issue No.5, learned trial Court found that it was incumbent
upon the plaintiff to prove the terms and conditions of the mortgage deed.
The plaintiff has failed to do so and that the land still stands mortgaged with
defendants No.1 to 8. Since the plaintiff has failed to prove the terms and
conditions of the mortgage deed, therefore, he is not entitled to the
possession of the suit land merely on the basis of title without making any
Regular Second Appeal No. 419 of 1987 [5]
payment and without removing the clog or encumbrances of mortgage. In
respect of Issue No. 7, the learned trial Court returned a finding that the
defendants are not entitled to any amount on account of improvement
brought by them as they were holding the land in question as mortgagees. In
view of the above findings, the suit was dismissed.
In appeal, learned First Appellate Court found that the
mortgage was somewhere in the year 1942 and since it has not been
redeemed for the last more than 30 years, the defendants have become
owners by prescription. The learned First Appellate Court concluded as
under:-
” 15. So in view of the relevant documents which are mostly
copies of the revenue record, the oral evidence and the
evidence coming from the official source and because of the
admission of the appellant themselves and the entries into the
redemption application filed by the appellant’s predecessor-in-
interest, there is inescapable conclusion which is only
equitable finding which can be arrived at is that the property
was mortgaged by Phulla Singh with the predecessors-in-
interest of respondents No.1 to 8 and the mortgage was
certainly go somewhere in the year 1942 as mentioned in the
redemption application copy of which is Exhibit D-2 and there
has been no redemption of the property as such which was for
the appellants to have mentioned the details particulars of the
mortgage so as to enable them to redeem the same.
16. As a consequence of this finding, it would be clear that
once the mortgage is not redeemed and the respondents are
clearly in possession of the property for the last more than 30
years , they become the owners by prescription. Therefore, the
finding on Issue No.3 as arrived at by the learned trial Court
which is absolutely illegal is reversed”.
I have heard the learned counsel for the parties on the following
Regular Second Appeal No. 419 of 1987 [6]
substantial questions of law framed on 11.08.2009:-
1. Whether oral evidence of the mortgage can be taken into
consideration to return a finding on the terms of the
mortgage in the absence of written document containing the
terms and conditions of the mortgage proved on record ?
2. Whether the mortgagee who continues in possession for
more than 30 years is entitled to protect his possession as a
right of redemption can be said to be lost with prescription ?
3. Whether in a suit for possession, a decree for redemption of
mortgage on payment of mortgage amount can be granted ?
Learned counsel for the appellant has vehemently argued that
an application was moved by the defendants for directing the plaintiff to
amend the plaint or in the alternative for recasting the issues. The
defendants have claimed that the onus should be on the plaintiff to give the
particulars of the mortgage. Therefore, the onus of Issue No.3 should be
placed on the plaintiff by recasting the issues. The learned trial Court
dismissed the said application on 19.3.1979 holding that it is the defendants
who have set up the mortgage and, therefore, it is the defendants who will
have to prove the terms and conditions of mortgage and that they have
become owners of the suit property for the failure of the plaintiff to redeem
the same. The said order was challenged before this Court in Civil Revision
No. 1681 of 1979 titled Bahal Singh etc vs. Gurbaj Singh etc. The said
revision petition was dismissed on 20th November, 1979. It is, thus, argued
that in terms of the order dated 19.03.1979 passed by the learned trial Court,
the defendants were to prove the terms of the mortgage deed. The
defendants have not proved the terms of the mortgage deed as neither the
original mortgage deed nor certified copy of the same has been produced.
Since oral evidence of mortgage has been led by the defendants, therefore,
Regular Second Appeal No. 419 of 1987 [7]
in terms of Section 65 (c ) of the Indian Evidence Act, 1872 ( for short “the
Evidence Act”), the terms of the mortgage can be proved. It is contended
that sections 91 and 92 of the Evidence Act exclude oral evidence of the
contents of document when the document is available but when when
document is not available and the same is being proved by secondary
evidence, the terms can be proved by oral evidence as well. Reliance is
placed upon first Explanation of Section 65 of the Evidence Act. The
relevant provisions of Section 65 of the Evidence Act read as under:-
“65. Cases in which secondary evidence relating to
documents may be given – Secondary evidence may be given
of the existence, condition, or contents of a document in the
following cases:
(a) When the original is shown or appears to be in the
possession or power –
of the person against whom the document is sought to be
proved, or of any person out of reach of, or not subject to, the
process of the Court, or
of any person legally bound to produce it,
and when, after the notice mentioned in Section 66, such person
does not produce it;
(b) xx xx xx xx
(c) When the original has been destroyed or lost, or when the
party offering evidence of its contents cannot, for any other
reason not arising from his own default or neglect, produce it in
reasonable time;
(d) xx xx xx xx
(e) xx xx xx xx
(f) When the original is a document of which a certified copy is
permitted by this Act, or by any other law in force in India to be
given in evidence;
(g) xx xx xx xx
In cases (a), (c) and (d), any secondary evidence of the contents
Regular Second Appeal No. 419 of 1987 [8]of the documents is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other
kind of secondary evidence, is admissible.
In case (g), evidence may be given as to the general result of
the documents by any person who has examined them, and who
is skilled in the examination of such documents”.
Learned counsel for the appellant contends that since
unregistered mortgage deed has neither been produced nor a certified copy
thereof has been produced, thus, oral evidence of contents of such mortgage
can be led in terms of Section 65(c) of the Evidence Act. He has relied upon
Mst. Bibi Aisha and others vs. The Bihar Subai Sunni Majlis Avaqaf
and others, AIR 1969 SC 253. It is contended that sections 91 and 92 of
the Evidence Act exclude oral evidence of contents of the document when
the document is available. But when the document is being proved by
secondary evidence, it can consist of oral evidence of the contents of the
document as well. Reliance is placed upon Jupudi Kesava Rao vs.
Pulavarthi Venkata Subbarao and others, AIR 1971 SC 1070 and
Marwari Kumhar and others vs. Bhagwanpuri Guru Ganeshpuri and
another, (2000) 6 SCC 735.
In Jupudi Kesava Rao’s case (supra), it has been held that
under Section 64 of the Evidence Act, a document must be proved by
primary evidence. Section 65 of the Evidence Act allows secondary
evidence to be given of the existence, condition or contents of a document
in circumstances specified in Clauses (a) to (g) thereof. The Court held to
the following effect:-
“9. Learned counsel for the appellant Mr. Sen argued that the
Regular Second Appeal No. 419 of 1987 [9]
admissibility of secondary evidence, be it oral or in writing,
must be primarily decided in terms of the Indian Evidence Act.
Inasmuch as the original document which was insufficiently
stamped was suppressed by the defendants in the suit for
specific performance, secondary evidence of the contents of the
document could be led in terms of Section 65(a) of the
Evidence Act. The Evidence Act imposed no bar to the
reception of oral evidence by way of secondary evidence to
prove the terms of the agreement to lease which was in writing
and duly executed…..
10. …… Under section 64, documents must be proved by
primary evidence except in cases mentioned thereafter. Section
65 allows secondary evidence to be given of the existence,
condition or contents of a document in circumstances specified
in Clauses (a) to (g) thereof. Under Section 91 when the
relevant portion of a contract or of a grant or of any other
disposition of property has been reduced to the form of a
document, no evidence shall be given in proof of the terms
except the document itself or secondary evidence of its contents
in cases in which secondary evidence is admissible under the
provisions hereinbefore contained.
11. As the first Court of appeal recorded the finding that it
was the defendants who were responsible for suppression of the
original agreement to lease, a finding which was accepted by
the High Court, it must be held that no objection to the
reception of secondary evidence by way of oral evidence can be
raised under the provisions of the Indian Evidence Act”.
In Mst. Bibi Aisha’s case (supra), the Court considered the
scope of sub-clauses (a), (c) and (f) of the Evidence Act. It was held that if
the case falls under clause (a) any secondary evidence of the document is
admissible, though the case may be also fall under clause (f). Clause (a) is
not controlled by clause (f). The loss of the document attracted clause (c ) of
Section 65 and the failure to produce it after notice attracted clause (a) and
Regular Second Appeal No. 419 of 1987 [10]
Clause (f) of Section 65 was also applicable. The Court approved the view
of Wilson J. in the case of A Collision between The Ava (1879) ILR 5 Cal
568 wherein it was held that in cases under clauses (a) and (c ) any
secondary evidence is admissible; in cases under clauses (e) and (f) only a
certified copy. It was found that the case falls under clauses (a) or (c ) and
also under (f). It was held that in cases (a), (c ) and (d) any secondary
evidence is admissible.
In Marwari Kumhar’s case (supra), it was held to the
following effect:-
“10. Thus it is to be seen that under clause (c ) of Section 65,
when the original has been lost or destroyed then secondary
evidence of the contents of the document is admissible. Clause
(c ) is independent of clause (f). Secondary evidence can be led,
even of a public document, if the conditions as laid down under
clause (c ) are fulfilled. Thus if the original of the public
document has been lost or destroyed then the secondary
evidence can be given even of a public document. This is the
law as has been laid down by this Court in Bibi Aisha vs. Bihar
Subai Sunni Majlis Avaqaf (AIR 1969 SC 253). In this case a
suit had been filed for setting aside a registered mokarrari lease
deed and for restoration of possession of properties. The suit
had been filed on behalf of a waqf. The original waqf deed was
lost and an ordinary copy of the waqf deed was produced in
evidence. The question was whether an ordinary copy was
admissible in evidence and whether or not secondary evidence
could be led of a public document. The Court held that under
Section 65 clause (a) and (c ) secondary evidence was
admissible. It is held that a case may fall both under clauses (a)
or (c ) and (f) in which case secondary evidence would be
admissible. It was held that clauses (a) and (c ) were
independent of clause (f) and even an ordinary copy would,
therefore, be admissible. As stated above, the case that the
Regular Second Appeal No. 419 of 1987 [11]original was no longer available in the court records and the
certified copy was lost has not been disbelieved. Thus the
ordinary copy of the earlier judgment was admissible in
evidence and had been correctly marked as an exhibit by the
trial court”.
Though the aforesaid case was a case where an ordinary copy
of judgment was admitted by way of secondary evidence but in a case even
the ordinary copy of the document is not available, contents thereof can be
proved by oral evidence. The principle that oral evidence cannot be led as to
contents of a document is that the parties have crystallized the terms of
agreement in writing and, therefore, they cannot be permitted to travel
beyond such terms reduced in writing. But where the written terms and
conditions of the agreement are not available, it cannot be said that oral
evidence in such circumstances would not be permissible to prove the
contents of the written document by way of secondary evidence. Such proof
is not to contradict the terms of the agreement. Thus, in terms of the
provisions of the Evidence Act, secondary evidence is admissible in respect
of secondary evidence falling in clause (c).
In the present case, the original document i.e., the registered
mortgage deed has not been produced by the defendants though the same
was stated to be in their possession. A certified copy could not be produced
within a reasonable time as the record is in area which is now part of
Pakistan. It is apparent from the record, including oral and documentary
evidence, that the mortgage was registered prior to the partition of the
country and such registered mortgage deed could not be produced on
account of the circumstances i.e., partition of the country. Therefore, oral
evidence of the contents of document is admissible. Thus, the first
Regular Second Appeal No. 419 of 1987 [12]
question of law is answered in favour of the plaintiff.
In respect to the second question of law, it is contended that in
view of the Full Bench judgment of this Court in Ram Kishan and others
vs. Sheo Ram and others, AIR 2008 Punjab and Haryana 77, the
plaintiff is entitled to possession as failure of the mortgagor to redeem
within the period of 30 years does not amount to loss of right of redemption.
It is argued that a decree for redemption on payment of mortgage amount
can be granted by this Court on payment of mortgage amount as disclosed
by DW5 Bahal Singh defendant No.1.
On the other hand, learned counsel for the respondents has
relied upon Single Bench judgment of Kerala High Court in Poulose and
another vs. State Bank of Travancore, AIR 1989 Kerala 79 to contend
that the right of the mortgagor to seek redemption is not available to the
appellant now as the appellant has failed to seek redemption within the time
prescribed. Such right could be exercised in a properly constituted suit for
redemption. Reliance is also placed upon Prithi Nath Singh and others vs.
Suraj Ahir and others, AIR 1963 SC 1041 to contend that since the
plaintiff has not paid the mortgage amount to the defendant, the mortgagors
have lost right to redemption.
In Ram Kishan’s case (supra), it was held to the following
effect:-
“38. After considering the aforesaid judgments, we
respectfully agree that the view of the Full Bench of this Court
in Lachhman Singh’s case (supra) and that of Patna High
Court in Jadubans Sahai’s case (supra). The provisions of
Sections 60, 62 and 67 of the Transfer of Property Act are not
applicable within the jurisdiction of this Court. Therefore, these
provisions are required to be interpreted keeping in view the
Regular Second Appeal No. 419 of 1987 [13]principles of equity and good conscience. Since the mortgage is
essentially and basically a conveyance in law or an assignment
of chattels as a security for the payment of debt or for discharge
of some other obligation for which it is given, the security
must, therefore, be redeemable on the payment or discharge of
such debt or obligation. That is the view of the Hon’ble
Supreme Court in Pomal Kanji Govindji’s case (supra)
wherein it has also been held that poverty should not be unduly
permitted to curtail one’s right to borrow money. Since at one
point of time the mortgagor for one or the other reason
mortgaged his property to avail financial assistance on account
of necessities of life, the mortgagor’s right cannot be permitted
to be defeated only on account of passage of time. The
interpretation sought to be raised by the mortgagees is to defeat
the right of the mortgagor and is wholly inequitable and unjust.
The mortgagee remains in possession of the mortgaged
property; enjoys the usufruct thereof and, therefore, not to lose
anything by returning the security on receipt of mortgage debt.
40. The limitation of 30 years under Article 61(a) beings to
run “when the right to redeem or the possession accrues”. The
right to redemption or recover possession accrues to the
mortgagor on payment of sum secured in case of usufructuary
mortgage, where rents and profits are to be set off against
interest on the mortgage debt, on payment or tender to the
mortgagee, the mortgage money or balance thereof or deposit in
the court. The right to seek foreclosure is co-extensive with the
right to seek redemption. Since right to seek redemption
accrues only on payment of the mortgage money or the balance
thereof after adjustment of rents and profits from the interest
thereof, therefore, right of foreclosure will not accrue to the
mortgagee till such time the mortgagee remains in possession
of the mortgaged security and is appropriating usufruct of the
mortgaged land towards the interest on the mortgaged debt.
Thus, the period of redemption or possession would not start
Regular Second Appeal No. 419 of 1987 [14]
till such time usufruct of the land and the profits are being
adjusted towards interest on the mortgage amount. In view of
the said interpretation, the principle that once a mortgage,
always a mortgage and, therefore always redeemable would be
applicable”.
The judgment in Poulose’s case (supra) hardly supports the
contention raised. It was held therein that right to deposit the mortgage
amount is available to the mortgagor only before the mortgagee has filed a
suit for enforcement of the mortgage. However, present is not a suit filed by
the mortgagee. The present suit has been filed by the mortgagor to claim
possession of the suit property. Even otherwise, the question whether there
is any period of limitation for redemption of usufructuary mortgage has
been considered by this Court in Ram Kishan’s case (supra) and it has
been held that once a mortgage always a mortgage is the principle
applicable to the usufructuary mortgage. Therefore, the aforesaid judgment
is of no help to the respondents.
In Prithi Nath Singh’s case (supra), the right to recover
possession was lost on account of enactment of Bihar Land Reforms Act,
1950. It has been further held that the authority given to the mortgagee to
remain in possession of the mortgaged property ceased when mortgage
money has been paid up and thereafter there is no question of appropriating
the rents and profits accruing from the property towards interest or
mortgage money can arise. It was held that section 60 of the Transfer of
Property Act describe the right of the mortgagor to redeem on payment of
the mortgage amount. The said judgment is hardly applicable to the facts of
the present case. In the instant case, the plaintiff has claimed possession
and in the alternative possession after redemption of the mortgage. In view
Regular Second Appeal No. 419 of 1987 [15]
of the above, it cannot be said that the usufructuary mortgagee who
continues in possession for more than 30 years is entitled to protect his
possession. The right of redemption is not lost with the effflux of time. The
second question of law is, thus, answered in favour of the plaintiff and
against the mortgagee.
Coming to the third question of law, it may be noticed that
earlier the plaintiff has filed application dated 29.01.1959, Exhibit D-2, for
redemption before the Assistant Collector Ist Grade, Kaithal. The Assistant
Collector has ordered on 30.01.1959 that mortgage money be deposited and
the notice be issued to the second party for 10.02.1959. The said application
was dismissed in default on 19.11.1959, Exhibit P-4. The said application
discloses that the land was mortgaged with the second party for a sum of
Rs.2500/-. The record of proceedings before the Assistant Collector has
been produced by DW3 Din Dayal who has produced a copy of application
for redemption Exhibit D-2. DW5 Bahal Singh defendant No.1 has deposed
regarding the terms of the mortgage. From his statement, the amount of
mortgage comes to Rs.2200/- and another sum of Rs.25000/- i.e., total
Rs.27200/-. Therefore, the statement of DW5 Bahal Singh sufficiently
prove the amount of mortgage can be Rs.27200/- and on payment of such
mortgage amount, the plaintiff is entitled to redemption.
The plaintiff has sought possession on the basis of title and in
the alternative by redemption of mortgage. Since the land is proved to be
mortgaged for an amount of Rs.27200/-, the suit of the plaintiff for
possession by redemption is decreed on deposit of mortgage amount of
Rs.27200/- within three months from today and the judgment and decree of
the Courts below are set aside. On such deposit, the land shall stand
Regular Second Appeal No. 419 of 1987 [16]
redeemed and the plaintiff shall be entitled to possession from the
defendants in accordance with law. The suit is, thus, decreed in the
abovesaid terms with no order as to costs.
August 26, 2009 ( HEMANT GUPTA ) ks JUDGE