JUDGMENT
R.L. Anand, J.
1. This is a defendant’s appeal and has been directed against the judgment and decree dated 3.9.2001 passed by the Additional District Judge, Sirsa, who, affirmed the judgment and decree dated 11.9.1997 vide which the suit of the plaintiff was decreed and a decree for declaration to the effect that the order dated 9.1.1991, passed by the Sub-Divisional Officer (Civil) Sirsa exercising the power of Collector, Sirsa, is illegal, without jurisdiction, null and void and the same was set aside and it was further directed by the trial Court that the plaintiff and proforma defendant have become owners in possession of the suit land. The trial Court also granted a decree of permanent injunction restraining the defendants from interfering into the cultivating possession of the plaintiff and proforma defendant.
2. Some facts can be noticed in the following manner. It is alleged by the plaintiff Boota Singh that he and proforma defendant Ghel Singh are the sons of Smt. Ant Kaur. She was mortgaged in possession of land measuring 445 Kanals 16 Marias. The land was mortgaged with possession with Smt. Ant Kaur by the defendants and mutation was sanction on 13.2.1959. Smt. Ant Kaur continued to be in possession over the land in question during her life time and the rights were inherited by her sons after she was no more. Her name still appears in the record of rights as a mortgagee in possession of the property in question. It was further averred by the plaintiff that the defendants had moved an application before the Collector, Sirsa on 9.6.1989 for redemption of the mortgage. Their request was allowed by the Collector vide order dated 9.1.1991. The order was challenged by the plaintiff in the civil suit on the ground that the land had been mortgaged on February 13, 1959 but it was not redeemed within a stipulated period of 30 years and the mortgagee has thus acquired ownership rights over the property in question. The Collector had ceased to have jurisdiction to decide the matter in respect of redemption of mortgage after the expiry of the period of limitation of 30 years. Thus, the plaintiff Shri Boota Singh has sought a declaration that he and defendant Shri Ghel Singh have become the owners of the property by efflux of time and defendants be restrained from interfering in their possession.
3. Notice of the suit was given to the defendants and they contested the suit. It was alleged by the defendants that mortgage was redeemed by Shri Gurcharan Singh in the lifetime of Smt, Ant Kaur, his own daughter. It has also been averred by the defendants that after the redemption, the possession of the property in question was taken by the mortgagor. However, mutation of redemption was not entered due to some inadvertence. According to the defendants they are in possession of the land in question as owners. It was further averred by the defendants that the parents of Boota Singh and Ghel Singh had expired and they were brought up by defendant Gurcharan Singh who was their maternal grandfather. It was also averred that a piece of land was given to them by defendant Gurcharan Singh for being used as their residence in the year 1984. Gurcharan Singh also spent a huge amount on the marriage of plaintiff Boota Singh. It was further averred by the defendant that application for redemption of mortgage was moved with the consent of Boota Singh and Ghel Singh on the advice of their counsel Ch. Uda Ram, Advocate, Sirsa. Proforma defendant Ghel Singh had made a statement in favour of the defendants but Shri Boota Singh did not make any statement on account of greed. Further it was averred by the defendant that the land was mortgaged for a sum of Rs. 1600/- in the year 1959. The land remained in possession with Shri Tehal Singh. However, the mortgage in favour of Tehal Singh was redeemed in the month of December, 1959 and the possession was handed over by Shri Tehal Singh to Smt. Ant Kaur on 18.12.1959, the date on which mutation of mortgage was sanctioned. It was further pleaded by the defendants that mutation of mortgage sanctioned on 13.2.1959 was wrong.
4. On the above pleadings of the parties, the following issues were framed:
(1) Whether the plaintiff and proforma-defendant are owners in possession of the suit land as alleged ? OPP
(2) If issue No. 1 is proved, whether the order dated 9.1.1991 passed by Shri Hawa Singh SDQ(C) Sirsa exercising the powers of Collector Sirsa is illegal, null and void, nonest, without jurisdiction, against the principles of natural justice, not binding on the rights of the plaintiff and proforma defendant and is liable to be set aside, as alleged? OPP
(3) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
(4) Whether the suit is not maintainable in the present form? OPD
(5) Whether the suit land was got redeemed during the time of Ant Kaur, If so, to what effect? OPD
(6) Whether the suit is barred by limitation? OPD
(7) Whether the mortgage money has been withdrawn by the plaintiff, if so, to what effect? OPD
(8) Whether defendants No. 1 to 8 are entitled to special costs under Section 35-A CPC? OPD
5. The parties led evidence before the trial Court and finally the suit of the plaintiff was decreed. Aggrieved by the judgment and decree of the trial Court, the defendant filed the appeal before the first Appellate Court and the first Appellate Court dismissed the appeal for the reasons given in paras No. 8 to 13 of the judgment dated 3.9.2001:
“8. A fair trial was conducted by the learned trial judge. The parties were given fair number of opportunities to bring on record all the evidence within their knowledge and power. The claim of the plaintiff found favour with the learned trial Judge who decreed the suit of the plaintiffs. Feeling aggrieved by the judgment and decree of the lower Court, the defendants/appellants have preferred this appeal.
9. Arguments have been addressed by S/Shri N.D. Malik and R.P. Jindal, Advocates, the learned counsel for the appellants, and Shri H.S. Smaugh, Advocate, the learned counsel for respondent No. 1.
10. It is an admitted fact that the land in question measuring 45 Kanals 16 Marias was mortgaged by Gurcharan Singh defendant No. 1 in favour of Smt. Ant Kaur in the year 1959 for a sum of Rs. 1600/-only. It is the case of the plaintiff that the land was mortgaged on 13.2.1959 whereas the defendants have urged that the land was earlier mortgaged with possession of the property to subsequent mortgagee Ant Kaur in the month of December, 1959 and that is how the mutation was sanctioned in favour of Smt. Ant Kaur on 18.12.1959. A perusal of mutation No. 2462 (Ex.P.1) on which the Partal Patwar is Ex.P.1 would show that the mutation of mortgage had been entered by the Halqa Patwari on 13.2.1959. It is evident from Ex.P.1 that the mutation was entered in the presence of the Lambardar of the village who had affixed his seal on it. The mutation had been sanctioned by the AC IInd Grade on 18.12.1959, A perusal of Jamabandi Ex.P.2 would show that Smt. Ant Kaur is recorded as mortgagee in possession over the land in question in the year 1961-62 and the entry was repeated in the subsequent jamabandi for the year 1965-66 (Ex.P.3). There is no document on the record to lend credence to the story of the defendants that the land was earlier mortgaged with Tehal Singh who had delivered possession to Smt. Ant Kaur in the month of December, 1959 and the mutation was thus sanctioned on 18.12.1959, it has been testified by Shri Sewa Singh (DW1) that no mutation was entered or sanctioned in respect of the mortgage in favour of Tehal Singh and its subsequent redemption in the month of December 1959. Therefore, the testimony of Shri Tehal Singh (DW4) would not help the defendants much.
11. It has been urged on behalf of the appellants that the Circle Patwari had entered the mutation on 13.2.1959 without recording source of information and without getting signatures of any person and also without recording the factum of mortgage in the daily book maintained by him. The land was under the possession of Tehal Singh mortgagee on 13.2.1959. The entry recorded in favour of Ant Kaur that the land was mortgaged on 13.2.1959 is against the procedure recorded in Clauses 7.16 and 7.17 of the Punjab Land Records Manual. The Patwari is legally bound to ascertain whether a deed is in writing or not in respect of a mortgage. He should have given brief note in column No. 15 of the counterfoil of the register. The Patwari should have ascertained whether the possession had passed to Smt. Ant Kaur on 13.2.1959 or not. However, he did not follow the procedure while entering the mutation of mortgage on 13.2.1959. It has also been urged that the defendants are in possession of the land in question since they had redeemed the property during the life time of Smt. Ant Kaur. The entries in fard jamabandis and Khasra Girdawaris Ex.P.3 to P.9 are misleading because they are in favour of Smt. Ant Kaur, a dead person. The Canal Girdawaris also lend corroboration to his contention that the defendants are in actual physical cultivating possession of the property. Reliance has been placed upon Narain Dass v. Chetan Dass, 1987 P.L.J. 99 for taking into consideration the entries in the Nehri Khasra Girdawaris. It has been further urged that the revenue official had not ascertained the identity of the property and the person in possession while entering mutation on 13.2.1959. No public enquiry was made by the revenue officer while sanctioning the mutation as is the law and is also observed in Gunnel Singh v. Prem Kaur and Ors., 1950 to 1988 Latest Judicial Reports (sic) and Pritam Kaur v. Madan Mohan and Ors., 1991 (1) L.J.R. 122.
12. A perusal of mutation Ex.P1 would show that the entry had been made on 13.2.1959 in the presence of the Lambardar who had affixed his own seal. The Patwari was not required to make an entry in the daily book in respect of the mortgage. The mutation was duly sanctioned by the AC IInd Grade meaning thereby that he had made relevant inquiries before he was convinced that it was a genuine transaction and that the mortgagee was in actual physical possession of the property. The presumption is attached to the acts done by the officers in the discharge of their official duties, that they had acted in accordance with the rules, it were the defendants who were required to prove to the contrary but the evidence on record is indeed not sufficient to conclude that the Revenue Officers had not acted in accordance with the rules.
13. There is sufficient evidence on record to believe that the land had beer mortgaged on 13.2.1959. However, the mortgage was not redeemed within the stipulated period of 30 years. The plaintiff and his brother Ghel Singh had automatically become the owners of the land in question in view of Jagdev Singh and Ors. v. Prem Parkash Kaur, (1997-2)116 P.L.R. 68. It is evident that the learned Collector, Sirsa had transgressed his jurisdiction while allowing the plea of redemption of mortgage made on behalf of the defendants/appellants. Therefore, there are no grounds to differ in opinion with the learned trial Judge and his findings on all the issues are hereby affirmed.”
Still not satisfied with the decisions of the Courts below, the present appeal has been filed.
6. I have heard the learned counsel appearing on behalf of the appellant and with his assistance have gone through the record of the case and am of the considered opinion that this appeal deserves to be dismissed in limine.
7. Faced with this difficulty, the counsel for the appellant submitted at the first instance that the suit of the plaintiff was time barred. He submitted that in pursuance of the alleged mortgage the possession of the land in question was never delivered to the mortgagee and in these circumstances, it was obligatory on the part of the plaintiff-mortgagee to file the suit within 12 years.
8. I am not in a position to subscribe to the argument raised by the learned counsel for the appellant for the reasons that from the pleadings of the parties it is clear that mortgage was created on 13.2.1959 and the mortgage was with possession. In these circumstances, the defendant could redeem the property within 30 years from the date of the mortgage. It was never got redeemed. In these circumstances, any order passed by the Revenue Authorities ordering for the redemption of the land was illegal and without jurisdiction and the Civil Court has the jurisdiction to entertain the suit. Present is a suit for declaration by Shri Boota Singh and his brother Ghel Singh on the ground that since the mortgage has not been redeemed within a span of 30 years, therefore, they have become the owners of the land in question by efflux of time. There is no cogent proof that the land was got redeemed by the present appellant or their predecessors within 30 years from 13.2.1959. Rather it is a admitted case that earlier this land was mortgaged with possession with one Shri Tehal Singh. From Tehal Singh it was got redeemed in the
month of December, 1959 and thereafter, the possession was given to Smt. Ant Kaur the mother of the plaintiff and proforma defendant.
9. On the contrary, it is established on the record that mutation was sanctioned in favour of Smt. Ant Kaur on 13.2.1959 and mutation was with regard to mortgage with possession.
10. In this view of the matter, I do not see any illegality in the impugned judgments.
The appeal is hereby dismissed in limine.