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