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CASE NO.: Appeal (civil)  325 of 2007

PETITIONER: Mohinder Singh

RESPONDENT: State of Punjab & Ors.

DATE OF JUDGMENT: 23/01/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

(Arising out of SLP (C) No. 17736 of 2003)  

S.B. SINHA, J.

Leave granted.  

       Assailing an order dated 28.08.2002 passed by the Financial  Commissioner (Revenue), Punjab, the appellant herein filed a writ petition  before the Punjab and Haryana High Court which by reason of the impugned  judgment dated 10.04.2003 has been dismissed.         The fact of the matter is as under:

       One Telu Ram s/o Hira, resident of Kotla Power House, Tehsil  Anandpur Sahib District Ropar, Punjab mortgaged 38 K \026 14 M of land with  the appellant and his brother Lachman Singh in equal shares on receipt of a  sum of Rs. 425/-.  On consolidation of the land, new Khasra Numbers 159,  160, 536, 538, 541, 545, 546, 547 and 549 were carved out in lieu of the old  Khasra Numbers.  

       Appellant herein claimed that he and his brother had been put in  possession of the said mortgaged land.  Without, however, redeeming the  mortgage, Telu Ram again mortgaged the said land in favour of Harjap  Singh, Sohan Singh, Surjit Singh and Manjit Singh.  In the said deed of  mortgage dated 21.11.1978, it was stipulated:

"I now mortgage 1/4th of the said land to Harjap  Singh son of Shri Jagat Singh, < of the said land to  Sohan Singh son of Shri Lachman Singh @  Bakhtawar Singh adopted son of Chanan Singh  and = of the said land in equal shares to Surjit  Singh and Manjit Singh sons of Mohinder Singh  son of Shri Jagat Singh, residents of Badhal,  Tehsil: Anandpur Sahib for Rs. 5000/- the half of  which is Rs. 2500/- and received Rs. 4075/- and  Rs. 500/- towards expenditure of registration and  Rs. 425/- is kept as Amanat with the mortgagees  for being paid to Lachman Singh and Mohinder  mortgagees which is to be paid to them and a  receipt is to be obtained for the said payment.  The  possession of the land is given today.  The income  of the land will  be adjusted against the interest of  the mortgage money."

       However, the mortgagors allegedly received the said sum of Rs. 425/-  from the mortgagees wherefor a receipt was allegedly granted on

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20.02.1979.  Indisputably, an application for redemption of mortgage was  filed by the heirs and legal representatives of said Telu Ram before the  Collector of the District on 17.06.1991.

       By a judgment and order dated 28.04.1992, the Collector directed  redemption of the said mortgaged property.  It is not in dispute that the  purported receipt dated 20.02.1979 had not been brought on records in the  said proceedings.

       The contention of the appellant that the same could not be done as he  or his brother were not parties in the said proceedings, however, appears to  be misplaced as it is stated at the bar that the endorsement was made in the  deed of second mortgage itself.

       A civil suit was filed by Harjap Singh and others questioning the said  order of the Collector dated 28.04.1992.  A decree was passed but an appeal  thereagainst was  filed by the heirs and legal representatives of Telu Ram  before the District Judge, Ropar which was allowed by an order dated  03.03.1997.  A second appeal preferred by the said Harjap Singh and others  has been dismissed by the High Court.

       Some of the lands in the mean time were sold by the heirs and legal  representatives of Telu Ram in favour of Bhagat Singh and others who filed  an application before the Assistant Collector, 1st Grade, Anandpur Sahib,  District Ropar for possession of the lands in terms of the order of the  Collector dated 28.04.1992.  Objections filed by the appellant in the said  proceedings were rejected.  However, an appeal was preferred thereagainst  by the appellant which by reason of a judgment and order dated 11.06.2002  was allowed.  A second appeal preferred by the respondents herein before  the Financial Commissioner Revenue, as indicated hereinbefore, was  accepted.

       It is not in dispute that the second mortgagees were the family  members of the appellant and his brother.

       It has also not been disputed that the matter had come up for  consideration before this Court on an earlier occasion from a judgment and  order passed by the High Court in the second appeal and the said special  leave petition was dismissed.  The direction for redemption of mortgage  issued by the Collector, therefore, attained finality.

       The contention of the appellant, that keeping in view of the fact that  the first mortgage was not redeemed, the second mortgage could not have  been directed to be redeemed, in the facts and circumstances of the case, is  misconceived.   

       From the conduct of the parties, it is evident that while creating the  purported second mortgage, the first mortgage was redeemed.  Harjap Singh  is the brother of Mohinder Singh, Sohan Singh is the son of Lachman Singh,  Surjit Singh and Manjit Singh are the sons of Mohinder Singh.  The second  mortgage deed was registered.  There was no reason why it was not acted  upon.

       The story that the aforementioned sum of Rs. 425/- was taken back  from the mortgagees by said Telu Ram admittedly had not been proved.  It  has been accepted before us that the said contention had not been raised in  the earlier proceedings.  On our query as to whether the said receipt had  been exhibited before the concerned authorities, it has been accepted that the  said receipt was not duly proved and marked as an exhibit in the proceeding  before the Collector.   

       In the civil suit, a finding of fact had been arrived at that the order for  redemption in favour of Telu Ram and Radha Krishan was valid in law.  As  indicated hereinbefore, the said decree passed by the Civil Court attained  finality.

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       Contention of the learned counsel for the appellant that the factum in  regard to the issuance of the said receipt having not been brought on records  in the earlier proceedings, the impugned order cannot be sustained, in our  opinion, is wholly fallacious.  If the receipt in question dated 20.02.1979  was to be brought on record, it was for the appellant to do so.  He having  failed to do so, in our opinion, now cannot be permitted to turn round and  contend that the said receipt should be taken into consideration by this  Court.

       The Financial Commissioner in his order dated 28.08.2002 has taken  into consideration all aspects of the matter.  It has been found that  miscarriage of justice had taken place.

       Keeping in view the factual background obtaining in this case, we  have no hesitation to hold that the appellant herein had raised unnecessary  objections in execution of the order of redemption passed by the Collector.   Even otherwise, the contention of the appellant is evidently barred by the  principles of constructive res judicata.  In any event, the said purported  receipt having not been proved in accordance with law, no reliance can be  placed thereupon.   

       For the reasons aforementioned, there is no merit in his appeal which  is dismissed accordingly with costs.  Counsel’s fee assessed at Rs. 25,000/-.