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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.615 OF 1992
Dharma Soma Tare & Ors. ... Appellants
V/s.
Harischandra Gangaram Tare ... Respondent
Mr.K.Y. Mandlik for Appellants
None for Respondent
CORAM: SMT.NISHITA MHATRE, J.
JUDGEMENT RESERVED ON: 26TH AUGUST, 2009
JUDGEMENT PRONOUNCED ON: 11TH SEPTEMBER, 2009
JUDGMENT:
1. This Second Appeal challenges the orders of both the trial Court as well as
the lower appellate Court by which the appellant’s suit has been dismissed. When
the appeal was admitted, the following substantial questions were raised:
“Whether the plaintiffs i.e. the appellants are entitled to exemption of the
Limitation Act in view of the provisions of the Order 7 Rule 6 of the CPC?”
“Whether the deed of 16.1.1967 is a mortgage deed and the plaintiffs were
entitled to redeem the mortgage at any time since the mortgage deed was not
registered under the Registration Act, 1908?”
2. The facts giving rise to the present appeal are as follows:
One Sitaram Tare was the owner of the suit land bearing Survey No.13/1 and Survey
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No.17, Hissa No.12 in Wadvali Taluka Kalyan, District Thane. Sitaram mortgaged
these lands with Respondent No.1 on 16.1.1967 for an amount of Rs.1500/-.
Sitaram required the money for his son’s marriage and it was agreed between the
parties that the mortgage could be redeemed within 5 years. Admittedly, the
mortgage deed has not been registered under the Registration Act. Sitaram expired
in 1975.
3. On 8.3.1982, the appellants, who are the heirs and legal representatives of
Sitaram, called upon the respondents not to obstruct their possession of the suit
lands. The respondents by his letter of 17.3.1982 informed them that Sitaram had
mortgaged the suit lands with him and therefore, they had no right over those lands
since Sitaram had failed to redeem the lands within five years as agreed. On
26.5.1982, the appellants called upon the respondents to accept Rs.1,500/- and to
hand over possession of the suit lands. The respondent refused to comply with the
request of the appellants and therefore, the appellants instituted RCS No.535 of 1982
before the Joint Civil Judge, Junior Division, Kalyan on 29.1.1982. This suit was filed
for redeeming the land on repayment of Rs.1500/- to the defendant i.e. the
respondent herein.
4. In his written statement, the respondent denied that the plaintiffs were entitled
to possession of the suit lands. He contended that the mortgage could not be
redeemed after so many years when the parties had agreed that it could be
redeemed only within five years.
5. The trial Court held after the evidence was recorded that the plaintiffs i.e. the
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appellants herein had proved that they were the heirs of Sitaram. They had also
proved that Sitaram had mortgaged the property for Rs.1500/- to the respondent and
that he had parted with possession of the suit property. However, the trial Court
denied the plaintiffs the relief of redemption of the mortgage since the suit had not
been filed within the period of limitation. The trial Court also construed the deed of
16.1.1967 as a mortgage by conditional sale.
6. Mr.Mandlik, the learned advocate for the appellants, submits that a suit for
redemption of a mortgage is required to be filed within 30 years from the date fixed
for redemption of the mortgage. He submits that since the deed of mortgage is not
registered in accordance with The Registration Act, 1908 it can be enforced at any
point in time and the appellants were entitled to the exemption from the law of
limitation under Order 7 Rule 6. The learned advocate then submits that the Plaintiff
is entitled to recover possession of the suit land as the defendant has no title or
interest of any nature in the suit land and, therefore, is not entitled to remain in
possession of the same. The learned advocate then relies on the judgment of the
learned Single Judge of this Court in the case of Devidas Krishna Salunke vs.
Tanubai w/o. Vasudeo Ghogare, 1999(1) Mh.L.J. 616 in support of his submission
that since the plaintiffs’ claim for possession was based on title and not on the ground
of dispossession, the suit was governed by the limitation prescribed under Article 65
of the Limitation Act. The learned advocate further submits that since no claim for
adverse possession had been made by the defendant in respect of the suit property,
the plaintiffs were entitled to possession of the suit property being the owners of the
suit land. He also points out that the judgment in the case of Virendra Nath v/s.
Mohd. Jamil & Ors., (2004) 6 SCC 140 in support of his submission that when the
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nature of the possession of the defendant was as a mortgagee and the plaintiffs were
ready and willing to pay the amount to redeem the mortgage, it ought to have been
held by both the Courts below that the defendant was in permissive possession of
the suit land.
7. The question therefore is, whether the suit has been filed within the period of
limitation. The suit as framed is one for redemption of the mortgage which was
created in 1967 in favour of the defendant. The parties had agreed that the
defendant would be put in possession of the suit land in return for a loan of Rs.
1,500/- which Sitaram required for his son’s marriage. This amount was to be repaid
within five years, failing which Sitaram agreed to sell the land to the defendant by
accepting an additional amount from the defendant. Thus, the document though not
registered is obviously one of a mortgage by conditional sale. The parties have
proceeded in Court on the basis that this is a mortgage by conditional sale. The
limitation prescribed for filing such a suit to redeem or recover possession of
immovable property which has been mortgaged is 30 years under Article 61 of the
Limitation Act. Admittedly, the document has not been registered and, therefore, both
the Courts below have held that the title does not pass to the defendant on the basis
of the mortgage deed. Therefore, the period of limitation which has to be considered
is with respect to the possession of the immovable property on the basis of title. The
limitation prescribed under the Limitation Act for such a suit is three years. Therefore,
in my opinion, the suit which has been filed in 1982 is barred by limitation. The view
of the both the Courts below regarding the issue of limitation must be upheld.
8. In the case of Devidas Krishna Salunke (supra), a suit was filed for restoration
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of the possession of a property on the ground that it belonged to the plaintiff and that
the defendant was in permissive possession thereof. The plaintiff’s claim that he
owned the property was neither disputed by the defendant nor was any plea of
adverse possession raised by the defendant. From the material on record and on the
analysis of the evidence the Court held that the suit was not based merely on the
claim of dispossession for it to be governed by Article 64 of the Limitation Act. The
Court held that the claim for possession was based on title of the plaintiff to the suit
property. The Court therefore held that the applicability of Article 64 does not arise
and instead the limitation prescribed under Article 65 was accepted as the correct
period of limitation in the facts and circumstances of the case. In my view, this
judgment is not relevant in the facts of the present case and therefore, it does not
take the appellant’s case any further. The deed on which the plaintiff relies is dated
16.1.1967 and therefore viewing the situation from any angle, the suit is barred by
limitation.
9. In the case of Virendra Nath (supra), the Supreme Court has observed that a
mortgagor has no right to eject a mortgagee unless the mortgage is redeemed. Even
though the mortgage has not been effected by a registered instrument if the entry of
the person is on the land as a mortgagee, the nature of his possession would
continue to be that of a mortgagee. This would be so unless there is evidence to
show at any point of time that he asserted his adverse title by representing his
possession as a mortgagee and continued in adverse possession for the prescribed
period of more than 12 years to the knowledge of the mortgagor. The Court also held
that there was no need for a substantial plea on the part of the original owner to
indicate that the other person was to be in permissive possession.
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10. In my opinion, this judgment would not be applicable to the facts and
circumstances in the present case as the Supreme Court was dealing with the UP
Consolidation of Holdings Act 1953 and the UP Zamindari Abolition and Land
Reforms Act, 1950. In the present case, a mortgage by conditional sale was
executed. The Defendant was in possession of the suit land, pursuant to this deed.
Therefore, it was not necessary for the Defendant to claim title by adverse
possession.
11.
The trial Court and the appellate Court have rightly held that since the
document on the basis of which the suit was filed for redemption of the suit land was
not registered the limitation prescribed under Article 61 (a) or (b) would not be
applicable. These articles would be applicable in case of a registered mortgage deed.
It is for this reasons that the trial Court and the appellant Court held that the limitation
prescribed under Article 61(a) and (b) would not be applicable. Therefore, the suit for
possession of the suit land would be on the basis of title. The limitation prescribed for
such a suit being 3 years, the suit was filed by the plaintiffs was not maintainable.
12. In the circumstances, the Appeal is dismissed.
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