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CASE NO.: Appeal (civil)  14185-14188 of 1996

PETITIONER: Tundal (Dead) by L.Rs. & Ors.

RESPONDENT: Munshi & Ors.

DATE OF JUDGMENT: 18/08/2006

BENCH: Arijit Pasayat & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T

Lokeshwar Singh Panta, J.

       These appeals are directed against the common judgment  and decree dated 5th January, 1995 passed by the learned  Single Judge of the High Court of Punjab and Haryana  dismissing Regular Second Appeal Nos. 724/1985,  1740/1990, 725/1985 and 307/1991 filed by the appellants- defendants against the judgment and decree of the Additional  District Judge (II), Faridabad.  The Additional District Judge  has dismissed the Civil Appeal No. 101 of 1983 preferred by  original defendant-appellant Tundal against the judgment  dated 7th June, 1983 of Sub-Judge First Class, Palwal,  decreeing the Civil Suit No. 232 of 1980 instituted by the  plaintiffs-respondents for possession of the land by way of  redemption.  We have taken up and heard these appeals  together as they involve same and identical issues and they  shall stand disposed of by this common judgment.         Brief facts giving rise to the filing of the appeals are that  one Smt. Mohori, widow of Dan Sahai, was the owner in  possession of the agricultural land comprising Khasra Nos.  871, 872, 873, 900, 901, 903 and 907 of Khatoni  No. 21 and  Khasra No. 576 of Khatoni No. 22, Khewat No. 7 admeasuring  14 bighas, 9 biswas situated in village Raidaska, Tehsil Palwal,  District Faridabad.  During consolidation proceedings, lands  measuring 45 kanals 8 marlas was allotted to Smt. Mohori in  lieu of old khasra numbers which was mortgaged by Smt.  Mohori with possession with original appellant-defendant No.  1 Tundal (now dead), vide registered Mortgage Deed dated 18th  September, 1951 registered on 25th September, 1951 for an  ostensible consideration of Rs. 2,200/- which amount was  reduced to Rs. 825/- in the decree of Civil Court and pursuant  to the said decree mutation of the land was sanctioned on 2nd  April, 1957.         Smt. Mohori died in the year 1967 and the mutation of  the inheritance was sanctioned in favour of the heirs  mentioned in the pedigree table given in paragraph 5 of the  plaint.  Hukam Singh-original plaintiff No. 6 and Dal Chand- plaintiff No. 7, respondents herein, have acquired rights in the  suit land on the basis of decree of Civil Court in Suit No. 200  dated 30th March, 1974 in respect of the shares of Khillu,  Rumali - widow, Ramvati - daughter and Pitamber son of  Giasi.  After the acquisition rights, Khillu was left with 1/6th  share whereas Rumali, Pitamber, Ramvati got 1/6th share  each.  The mutation of their shares was entered in the  Revenue Record, which was sanctioned on 12th October, 1974

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by the competent authority.         The plaintiffs 6 and 7 filed Civil Suit No. 565/1974 for  the redemption of the suit land, which came to be dismissed  on 13th December, 1976 by the Revenue Court.  The appellant  No. 1-defendant No. 1 in the present civil suit, was reluctant  to release the suit land after receipt of the amount of  mortgage, so the plaintiffs-respondents instituted the present  suit impleading defendant Nos. 2-9 as proforma defendants- appellants herein as they were not available at the time of  filing of the earlier suit.         The suit was resisted and contested by original  defendant-appellant\026Tundal (now dead).  The other  defendants-appellants 3 to 5 and 7 to 10 in their written  statement have admitted the claim of the plaintiffs- respondents and also pleaded that they are entitled to get their  respective shares in the suit land after redemption.  The  original defendant-Tundal raised preliminary objections inter  alia that the mortgaged amount was Rs. 2,200/- and not Rs.  825/-; the plaintiffs or defendant Nos. 2 to 9 are not legal  heirs of Smt. Mohori and as the plaintiffs’ suit under Section 4  of the Punjab Redemption of Mortgages Act, 1913 (for short  "the Act") was dismissed by the Court therefore, the right of  redemption of the plaintiffs had extinguished and,  the suit of  the plaintiffs was liable to be dismissed.  The main defence  pleaded by the defendant No. 1 was that the suit was time  barred as the order of the Collector under the Act was  recorded on 30th July, 1974 and that the present suit was filed  after the stipulated period of one year.   On the pleadings of  the parties, the Trial Court framed as many as ten issues,  which were reproduced by the learned Single Judge in his  judgment and we do not think it necessary to reproduce them  again for unnecessarily burdening the record.  The learned  Trial Court passed preliminary decree in favour of the  plaintiffs for redemption of the suit land subject to the  condition of the payment of Rs. 825/- to defendant \026 appellant  No. 1 on or before 28th July, 1983.           Being aggrieved against the judgment and decree of the  Trial Court, defendant  No. 1 preferred appeal which came to  be dismissed by the First Appellate Court confirming the  judgment and  decree of the Trial Court.  Defendants- appellants filed four Regular Second Appeals before the High  Court, which came to be dismissed by a single judgment and  decree impugned in these appeals.         We have heard Ms. Madhu Tewatia, learned counsel for  the appellants and Mr. Arvind Kumar, learned counsel for the  respondents, who have taken us through the relevant material  on record.  Ms. Madhu Tewatia, learned counsel for the  appellants submitted that the order of the Collector dated 13th  July 1974 dismissing the suit of the plaintiffs filed under  Section 4 of the Act was based on merits after scrutiny of the  entire evidence placed on record by both the parties.  As such,  the present suit was barred by limitation, as the suit was not  filed within one year of the dismissal of the petition by the  Collector for redemption of the mortgage land.         In opposition to the contention of the learned counsel for  the appellants, the learned counsel for the respondents- plaintiffs urged that since all the three courts below have  recorded concurrent findings of fact on the legal issues as well  as the factual scenario of the controversy, therefore, this Court  in exercise of its jurisdiction under Article 136 of the  Constitution of India will not be obliged to interfere with the  well-reasoned judgments of the courts below.  The First  Appellate Court and the High Court have categorically held on  the assessment of the entire material on record that the  Collector in exercise of the jurisdiction under the Act has not

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recorded any finding on the merits of the case.           We have given our thoughtful consideration to the  respective contentions of the learned counsel for the parties  and examined the judgments of the courts below.  Order dated  30th July 1974 recorded by the Collector in the redemption  proceedings is placed on record as Exhibit P8.  It is not in  dispute that in the redemption proceedings filed by Khillu and  others under Section 4 of the Act, parties went to trial and led  their respective evidence in respect of their claims and counter  claims.  The Collector in his order had noticed the various  respective contentions raised by the parties in respect to the  notified shares of the plaintiffs’ rights, if any, and also what  will be the effect of non-impleadment of some of the persons  who have got rights in the property in dispute and further  whether the amount of mortgage was Rs. 2,200/- as stated by  the appellants-defendants or Rs. 825/- as pleaded by the  respondents-plaintiffs.    After noticing their contentions/pleas  raised by the parties, the Collector came to the conclusion that  since sufficient evidence had not been laid by the parties, no  finding could be recorded on the merits of the case.   Accordingly, the Collector came to the conclusion that the  petition for redemption of mortgage of the property in the  present form would not succeed and so the same was  dismissed.           To appreciate the contentions of the learned counsel for  the parties, we propose to refer to the relevant provisions of  the Act.  The scheme of the Act envisages that if petition for  redemption of the mortgage of the property is presented before  the Collector being a competent authority he shall deal with  the matter judiciously.  Under Section 4 of the Act, the  petitioner has to state the particulars of the land mortgaged,  the amount of mortgage and the factum of the deposit of the  mortgaged amount with the Collector.  Section 5 provides that  as and when the petitioner has been duly presented and the  deposit has been made, the Collector has to issue summons to  the mortgagees to appear on a date to be specified therein.   Under Section 8, the Collector has to enquire from the  mortgagee whether he admits that the petitioner is entitled  and whether he is willing to accept the sum in deposit in full  payment of the mortgage debt and in case the mortgagee is in  possession whether he is willing to surrender possession of the  mortgaged property.  If the mortgagee replies in the  affirmative, the Collector is to pass the order as laid down in  Section 6(a), (b), (c) and (d) of the Act.  In case, the mortgagee  admits the petitioner’s title to redeem but demands payment of  sum larger than pleaded by the petitioner, the Collector has to  enquire from the petitioner whether he is willing to pay larger  amount and in case the petitioner answers in affirmative, the  Collector shall fix a period not exceeding 30 days within which  the petitioner is to deposit the difference and in case the  petitioner makes such a difference good, the Collector is to  make order as laid down in Section 6(a), (b), (c) and (d) of the  Act.  In default of deposit of such amount within the  prescribed time, the Collector is to dismiss the petition.  In  case the mortgagee raises objection on any ground other than  the amount of deposit or if the petitioner is not willing to pay  the sum demanded by the mortgagee, the Collector can either  dismiss the petition or make a summary inquiry regarding the  objection raised by the mortgagee as contemplated under  Section 9 of the Act.  Thus, Section 9 of the Act envisages an  inquiry by the Collector with regard to the objection raised by  the mortgagee.  As noticed above, in the present case, the net  substance of the order of the Collector dated 30th July, 1974  reveals that the said order was not recorded on merits.  Thus,  the contention of the learned counsel for the appellant that the

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suit was barred by limitation as the order of the Collector was  not challenged by the plaintiffs within one year does not merit  acceptance.  Ms. Madhu Tewatia, learned counsel for the  appellants, has made reference to paragraph 6 of the  judgment of this Court in Harbans Singh and Anr. v. Guran  Ditta Singh and Anr. [(1991) 2 SCC 523], which reads as  under:- "6.  It is clear that an order passed by the Collector  under Sections 6 to 11 is only conclusive for what  was decided therein and if the adjudication made by  the Collector in summary proceedings are sought to  be reopened, certainly, unless the order is got over,  either by the mortgagor or by the mortgagee, or any  person claiming right, title or interest through them  being an aggrieved person within the meaning of  Section 12, the order of the Collector binds the  parties or the persons claiming right, title or interest  from the parties. Take for instance, there is a  dispute as in the present case about the mortgage  money before the Collector. Kala Singh disputed the  money secured of hypothecation but had  compromised and agreed to pay the amount  mentioned in the mortgage bond, namely, Rs. 850- Rs. 10 in each of the mortgages disputed but in the  suit filed within one year he reiterated his original  stand. Had the same stand been taken by the  respondents disputing the mortgage money,  certainly it would not be open to the respondents as  successor in interest of the mortgagor to contend  that the money advanced under the mortgage was  not Rs. 850, but something less. That is not the  case in the present suit. They agreed to pay Rs. 850  as decided by the Collector and sought redemption  in the civil suit. Thereby they are not seeking to set  aside the order of the Collector, but they are seeking  redemption of the mortgage. Take another instance  where the mortgagor disputed the execution or  validity of the mortgage, bond itself and the finding  was recorded against the mortgagee, i.e. the  mortgage bond was not either executed or is void for  being vitiated by fraud, coercion or undue influence,  etc. The mortgagor successfully avoided the  mortgage by a specific order passed by the Collector  under the relevent provisions of the Act. If no suit  was filed within a period of one year, the findings of  the Collector become conclusive between the  mortgagee and the mortgagor and it is not open to  assail the order of the Collector after one year in a  suit of foreclosure or sale by the mortgagee.  Therefore, what was prohibited by Section 12 is only  the substance of the order and not the form."

       The above extracted paragraph of the judgment lays  down that if no suit was filed within a period of one year, the  findings of the Collector become conclusive between the  mortgagee and the mortgagor and it is not open to assail the  order of the Collector after one year in a suit of foreclosure or  sale by the mortgagee.  Section 12 of the Act prohibits the  substance of the order and not the form in which the order is  couched by the Collector.  Even if by the order, the petition is  dismissed not the form of the order but the substance will  determine the application of the period of limitation prescribed  by the Limitation Act.  In support of our view, we are fortified  by the decision of this Court in Shivlal & Ors. Vs. Sultan & Ors.  [(1969) 2 SCC 883].  In the facts and circumstances of the

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case and in the light of the above-settled proposition of law, we  do not find any perversity or illegality in the judgment and  decree of the courts below warranting interference in these  appeals.         In result, for the foregoing reasons, the appeals are  devoid of merits and are dismissed accordingly.  Parties are  left to bear their own costs.