R.S.A No. 3446 of 1985 (O&M) ::1::
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
R.S.A No. 3446 of 1985 (O&M)
Date of decision : October 28, 2009
Malkiat Singh and others,
...... Appellant (s)
v.
Jit Singh and others,
...... Respondent(s)
***
CORAM : HON’BLE MR.JUSTICE AJAY TEWARI
***
Present : Mr. G.S.Dhariwal, Advocate
for the appellants.
***
1. Whether Reporters of Local Newspapers may be allowed to see the
judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
***
AJAY TEWARI, J (Oral)
This appeal has been filed against concurrent judgments of the
Courts below dismissing the suit of the appellants challenging the order
dated 9.1.1980 passed by the Assistant Collector Ist Grade Nabha
redeeming 23 bighas of land in favour of the respondents.
It is not disputed that the predecessor-in-interest of the
respondents had sold the land in dispute to the predecessor-in-interest of the
appellants. In a suit filed by the minor sons, the sale was held to be not
affecting the rights of the plaintiffs subject to their paying Rs.1021.69 to the
vendees. The suit was decreed in the year 1945. The vendor (defendant in
the earlier suit) died in the year 1979. Consequently, the reversioner moved
R.S.A No. 3446 of 1985 (O&M) ::2::
an application for redemption of mortgage, which has been allowed.
Since this appeal was filed as far back as 1985, no question of
law was proposed. However, subsequently counsel for the appellants has
proposed the following questions :-
” i) Where reversioners challenge the sale by a male
proprietor seeking a declaration that the sale would not
bind them after the death of the vendor and the Court
accepts their plea and decrees the suit, can the Court
convert the sale into a mortgage ?
ii) And if the answer to the question is in negative,
what is the limitation for filing of suit for possession on
the basis of decree after the death of vendor proprietor ?”
Counsel for the appellants has argued that in the decree it was
mentioned that the sale had been converted into a mortgage. He has relied
upon various judgments to argue that such a conversion could not have been
made. However, this point has been dealt with by the lower appellate Court
by holding that though in law a mortgage could not have been created yet
since the decree of 1945 was allowed to become final, it does not lie in the
mouth of the appellants to challenge the same.
It was next argued that since the decree was to take effect only
on the death of the vendor, the instant suit challenging the conversion (into
mortgage) was maintainable.
In my opinion, this cannot be so. The said decree, such as it
was, bound the parties and by allowing it to become a final, the appellants
could not have the right to challenge it thereafter in independent
proceedings on the ground that the decree was to take effect at a future date.
R.S.A No. 3446 of 1985 (O&M) ::3::
The decree had crystalized the rights of the appellants and if the appellants
felt that the decree was illegal and that the mortgage could not have been
created it was open to them to challenge the same by filing an appeal against
the same.
Question No. (i) having, thus, been decided against the
appellants, question No. (ii) does not arise.
Consequently, this appeal is dismissed with no order as to
costs.
As the main appeal has since been dismissed, all the pending
civil miscellaneous applications, if any, also stand disposed of.
( AJAY TEWARI ) October 28, 2009. JUDGE `kk'