HIGH COURT OF CHATTISGARH AT BILASPUR
Second Appeal No 566 of 1995
Prakash Chand Bajaj
...Petitioners
Versus
1. Bundabai
2. Ramji
3. Birendra Pratap
4. Narendra Pratap
...Respondents
(Appeal under Section 100 of the Code of Civil Procedure,
1908)
! Mr. H.B. Agrawal, Senior Advocate with Mr. J.K. Gupta, Advocate for the appellant
^ Mr. Y.C. Sharma, counsel for the respondents
Honble Mr. Justice T.P. Sharma
Dated:28/07/2009
: Judgment
JUDGMENT
(Delivered on 28th July, 2009)
1. This is second appeal challenging the judgment & decree
dated 22-4-95 & 27-4-95, respectively, passed by the 4th
Additional District Judge, Raipur in Civil Appeal No.2247/95,
affirming the judgment & decree dated 15-1-93 passed by the
12th Civil Judge Class-II, Raipur in Civil Suit No.73A/92,
whereby learned Civil Judge Class-II has declared the
document dated 8-2-74 cancelled and directed for re-
conveyance of possession of the suit land to the respondent.
2. Judgment & decree are challenged on the ground that the
suit filed by the respondent was hopelessly time barred and
both the Courts below have not considered the question of
limitation.
3. Brief facts giving rise to filing of this second appeal
are that one deed in the form of sale deed was executed
relating to the disputed property by the defendant in favour
of the plaintiff dated 8-2-74 (Ex.D-1) and out of the
property mentioned in Ex.D-1 one sale deed was executed by
the defendant in favour of the plaintiff vide sale deed dated
28-6-78 (Ex.P-1). The present respondent has filed suit for
declaration and cancellation of sale deed dated 8-2-74 on
payment of the amount of mortgage of Rs.1,000/-, and for
recovery of possession in which it has been pleaded that the
present respondent/plaintiff has mortgaged his property to
the appellant/defendant and a document in the form of sale
deed was executed to secure the loan transaction, and in lieu
of interest, possession of the property was transferred to
the appellant. After part payment of the mortgage amount re-
conveyance deed Ex.P-1 relating to remaining property was
executed by the appellant in favour of the respondent, but
even after receiving notice the present appellant has not
executed the re-conveyance deed and has declined to receive
remaining part of mortgage amount and has also declined to
return the possession of remaining part of the land
originally mortgaged. The suit was filed on 9-7-80 when the
plaintiff/appellant has failed to reply the notice and not
acted upon in accordance with notice, inter alia much after
three years of the execution of sale deed.
4. In the written statement, the present appellant has
specifically denied the alleged transaction as mortgage in
the form of nominal sale and transfer of possession in lieu
of interest. The present appellant has also denied the
allegation that after receiving part payment of mortgage
amount he has executed re-conveyance deed and specifically
alleged that the suit for declaration and cancellation of
sale deed is barred by limitation.
5. After appreciating the evidence adduced on behalf of the
parties, learned Civil Judge has decreed the suit and by
affirming the judgment & decree passed by learned Civil
Judge, learned lower appellate Court has dismissed the
appeal.
6. Following substantial question of law has been
formulated for decision of this appeal: –
“Has the lower appellate Court erred in law
in holding that the suit filed by the
plaintiff was within limitation?”
7. I have heard learned counsel for the parties and perused
the impugned judgment & decree as also the record of Courts
below.
8. Learned Senior Advocate appearing on behalf of the
appellant vehemently argued that the suit was simply for
cancellation of sale deed and for recovery of possession,
therefore, the suit in present form shall be governed by
Article 59 of the Limitation Act, 1963 (for short `the Act,
1963′) and not by Article 65 of the Act, 1963. Learned
Senior Advocate further argued that even the suit of this
nature shall be filed within three years in accordance with
the general provisions of limitation provided under Article
113 of the Act, 1963 and any suit filed after the period of
three years shall be barred and shall be dismissed in terms
of Section 3 of the Act, 1963. Learned Senior Advocate also
argued that learned Civil Judge was under obligation to
dismiss the suit on the ground of limitation and the lower
appellate Court ought to have allowed the appeal and
dismissed the suit only on the ground of limitation, but the
Court below has not considered the substantive question of
law relating to limitation and decreed the suit, and also
dismissed the appeal filed on behalf of the appellant.
9. On the other hand, learned counsel for the respondents
submits that the question of limitation shall be determined
on the basis of allegations made in the plaint and not on the
basis of allegations made in the written statement, if the
plaintiff fails to prove his case that the document was not
of mortgage but was sale of the suit land, the Court was
empowered to dismiss the suit. Learned counsel further
argued that the respondent/ plaintiff has pleaded in the
plaint that the document was in the form of sale deed, but it
was not sale and was mortgage, and in lieu of interest the
possession was delivered which is punishable under the law.
Learned counsel also argued that virtually, the mortgage was
usufructuary mortgage in accordance with clause (d) of
Section 58 of the Transfer of Property Act, 1882 (for short
`the Act, 1882′) and to recover possession based on mortgage
limitation shall begin from the date of denial/when the
possession becomes adverse to the plaintiff and such suit
shall govern by Article 65 of the Act, 1963.
10. On perusal of the plaint it is clear that the suit was
for declaration & cancellation of sale deed, virtually, the
mortgage deed is in the form of sale deed for recovery of
possession after paying the mortgage amount in which it has
been specifically pleaded that possession parted to the
appellant is in lieu of future interest. Section 58 of the
Act, 1882 defines mortgage. Clause (d) of Section 58 of the
Act, 1882 defines usufructuary mortgage which reads as
follows: –
“(d) Usufructuary mortgage.-Where the
mortgagor delivers possession or expressly or
by implication binds himself to deliver
possession of the mortgaged property to the
mortgagee, and authorizes him to retain such
possession until payment of the
mortgagemoney, and to receive the rents and
profits accruing from the property or any
part of such rents and profits and to
appropriate the same in lieu of interest, or
in payment of the mortgage-money, or partly
in lieu of interest or partly in payment of
the mortgage-money, the transaction is called
an usufructuary mortgage and the mortgagee an
usufructuary mortgagee.”
11. Under clause (d) of Section 58 of the Act, 1882,
mortgage by transferring possession in lieu of interest is
permissible.
12. Limitation of the suit shall be reckoned on the basis of
plaint allegation. Plaint allegation clearly shows that it
was suit for redemption of mortgage property, recovery of
possession and for declaration of the instrument, not for
only cancellation of instrument. In case of cancellation or
setting aside an instrument, limitation is three years in
accordance with Article 59 of the Act, but in case of
recovery of possession which is main relief in this case, on
the basis of mortgaged property and for redemption or
recovery of possession of immovable property the limitation
provided in Article 61 of the Act, 1963 is 30 years, but if
the suit is for redemption of mortgage and recovery of
possession on the basis of adverse possession, such suit
shall be governed by Article 65 of the Act, 1963, which reads
as follows: –
“Article 65.-For possession of immovable
property or any interest therein based on
title.
Explanation-For the purpose of this Article-
(a) where the suit is by a remainderman, a reversioner
(other than a landlord) or a devisee, the possession of the
defendant shall be deemed to become adverse only when estate
of the remainderman, reversioner or devisee, as the case may
be, falls into possession;
(b) where the suit is by a Hindu or Muslim entitled to the
possession of immovable property on the death of a Hindu or
Muslim female, the possession of the defendant shall be
deemed to become adverse only when the female dies;
(c) where the suit is by a purchaser at a sale in execution
of a decree when the judgment-debtor was out of possession at
the date of the sale, the purchaser shall be deemed to be a
representative of the judgment-debtor who was out of
possession.”
13. In the present case, suit was for redemption of mortgage
and recovery of possession of the property mortgaged under
clause (d) of Section 58 of the Act, 1882. When the
defendant failed to return possession and execute re-
conveyance deed, the suit was for redemption of mortgage deed
and recovery of possession, and limitation for such suit was
12 years in accordance with Article 65 of the Act, 1963.
14. The lower appellate Court has rightly decided the
question of limitation in favour of the respondent and the
Court below has not committed any illegality. For the
aforesaid reasons, the substantial question of law is decided
as negative and on the basis of aforesaid finding, the
present appellant is liable to be dismissed and it is hereby
dismissed.
15. The appellant shall bear his own cost of suit and
appeal, and also bear the cost of opposite party. Advocate
fees as per schedule.
16. Decree be drawn up accordingly.
JUDGE