Allowed

Bakshish Singh and Others v. Ajay Vir Singh Gill and Others

Himachal Pradesh HC1 Aug 2022CS/42/2020

Case brief

AI extract

What is this about?

Appeal regarding rejection of a suit under Order VII Rule 11 CPC. The suit sought declaration of title and setting aside mortgagee's heirs' sale deeds based on alleged foreclosure under a simple mortgage. The single judge held the suit barred by law, limited, and for multiple legal defects including lack of cause of action and inability to declare ownership without possession or prayer for relief

What did the court decide?

Rejection of the plaint under Order VII Rule 11 CPC due to failure to disclose a valid cause of action, bar of law, and limitation.

Bakshish Singh and Others Vs Ajay… — Contract and Commercial Disputes | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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ON THE 1^st DAY OF AUGUST, 2022

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BEFORE

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HON’BLE MR. JUSTICE VIVEK SINGH THAKUR CIVIL SUIT NO.42 OF 2020

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Between

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BAKSHISH SINGH SONS OF SH TARA SINGH (DEAD) THROUGH LRS

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1(A) SH SHAMSHER SINGH,

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1(B) JAGIR SINGH

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1(C) HARMAIL SINGH

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I(D) BALDEV SINGH

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1(E) TAPENDER SINGH

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PLAINTIFFS NO.1(A) TO 1(E), ALL SONS OF LATE SHRI BAKSHISH SINGH, R/O VILLAGE HARIPUR TOHANA, P.O. SHIV PUR, TEHSIL PAONTA SAHIB, DISTT SIRMOUR, HIMACHAL PRADESH 173025.

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1(F) RESHAM KAUR

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(D/O. LATE SH BAKSHISH SINGH) W/O SH PURAN SINGH R/O VILLAGE PUJAMPUR, DISTT KARNAL, HARYANA 132001

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1(G) BALBIR KAUR (D/O LATE SH BAKSHISH SINGH) W/O SH JASWINDER SINGH R/O VILLAGE AND P.O. VIKAS NAGAR, DISTRICT DEHRA DUN, UTTRAKHAND. PIN 248001

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1(H) SURJEET KAUR, W/O LATE SH BAKSHISH SINGH, R/O VILLAGE HARIPUR TOHANA, P.O. SHIV PUR, TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR, HIMACHAL PRADESH 173025.

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1. BALBIR SINGH S/O LATE SH JASMER SINGH S/O

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LATE SH TARA SINGH

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R/O VILLAGE GENDIKHATA, P.O. GENDIKHATA KHAS TEHSIL AND DISTRICT HARIDWAR, UTTRAKHAND.

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HARJEET KAUR W/O LATE SH UDHAM SINGH S/O LATE SH JASMER SINGH S/O LATE SH TARA SINGH.

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R/O. VILL GENDIKHATA P.O. GENDIKHATA KHAS. TEHSIL AND DISTT HARIDWAR UTTRAKHAND.

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HARVINDER SINGH S/O LATE SH UDHAM SINGH S/O LATE SH JASMER SINGH S/O LATE SH TARA SINGH

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MOHINDER SINGH S/O SH PREM SINGH, S/O LATE SH TARA SINGH

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KARAM SINGH S/O SH PREM SINGH S/O LATE SH TARA SINGH

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PLAINTIFFS NO.2 TO 6 R/O. VILL GENDIKHATA P.O. GENDIKHATA KHAS TEHSIL AND DISTT HARIDWAR UTTRAKHAND.

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GURVINDER SINGH W/O LATE SH VIR VIKRAM JIT SINGH S/O SH PREM SINGH S/O LATE SH TARA SINGH R/O. VILL. HARIPUR TOHANA, P.O. SHIVPUR, TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH 173025.

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…..PLAINTIFFS

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(BY SHRI AJAY KUMAR DHIMAN, ADVOCATE, FOR PLAINTIFFS NO.1(A) TO 1(H) & 2 TO 7)

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AND

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AJAY VIR SINGH S/O SH SUKH DEV SINGH GILL S/O SH PYARA SINGH R/O. GILL AVENUE, SHIMLA ROAD NAHAN,

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DISTRUCT SIRMOUR HIMACHAL PRADESH.

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RANVEER SINGH S/O LATE SMT PARAMJEET KAUR (W/O DALIP SINGH) D/O SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O WARD NO 3 BADRIPUR, TEHSIL PAONTA SAHIB DISTRICT SIRMOUR HIMACHAL PRADESH.

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JASPAL SINGH S/O LATE SMT PARAMJEET KAUR (W/O. DALIP SINGH) D/O SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O WARD NO 3 BADRIPUR, TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH

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HARPAL SINGH S/O LATE SMT PARAMJEET KAUR (W/O DALIP SINGH) D/O SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O WARD NO 3 BADRIPUR TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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GURMEET KAUR (W/O SH MOHAN SINGH) D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O VILLAGE TARUWALA P.O. AND TEHSIL PAONTA SAHIB DISTRICT SIRMOUR HIMACHAL PRADESH.

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AMARJEET KAUR (W/O SH SANGAT SINGH) D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O WARD NO 3 BADRIPUR TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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MANJEET KAUR @ BIMLA DEVI (W/O SH JOGINDER SINGH) D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O VILLAGE AKALGARH CHAWANIWALA P.O. SHIVPUR, TEHSIL PAONTA SAHIB DISTRICT SIRMOUR HIMACHAL PRADESH

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BALWANT KAUR (W/O SH CHANAN SINGH) D/O LATE SMT JAGIR KAUR D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O. VILLAGE & P.O. SHIVPUR TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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RAJINDER KAUR (W/O PARAMJEET SINGH) D/O LATE SMT JAGIR KAUR D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O VILLAGE BHUNGARNI P.O. SHIVPUR TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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SARANJEET KAUR (W/O SH TEJINDER SINGH) D/O LATE SMT JAGIR KAUR D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O VILLAGE TARUWALA, WARD NO 4, P.O. AND TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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NARENDER SINGH (S/O SH DARSHAN SINGH) S/O LATE SMT JAGIR KAUR D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O VILLAGE TARUWALA, P.O. AND TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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AMANPREET SINGH (S/O. SH CHARANJEET SINGH) S/O SATVINDER KAUR D/O LATE SMT JAGIR KAUR D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O VILL AND P.O. SHIVPUR, TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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GURPREET KAUR (D/O SH CHARANJEET SINGH) D/O SATVINDER KAUR D/O LATE SMT JAGIR KAUR D/O LATE SMT RATTAN KAUR D/O LATE SH BASANT SINGH R/O VILLAGE AND P.O. SHIVPUR, TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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MOHAN SINGH (S/O SH MAHENDER SINGH) D/O LATE SMT PRITTAM KAUR D/O LATE SH BASANT SINGH R/O VILL. SURAJPUR, P.O. BATA MANDI TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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DHANVEER SINGH S/O SH AMAR SINGH R/O VILLAGE BHUNGARNI, TEHSIL PAONTA SAHIB, DISTT SIRMOUR HIMACHAL PRADESH.

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16 RANJANA RAINA W/O SH VEERENDER SWARUP S/O SH SAROOP CHAND R/O BADRIPUR, TEHSIL PAONTA SAHIB, DISTRICT SIRMOUR HIMACHAL PRADESH.

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NETTER SINGH CHAUHAN S/O SH DHARAM SINGH S/O SH MANI RAM R/O VILL SHUBKHERA, TEHSIL & P.O. PAONTA SAHIB, DISTT SIRMOUR HIMACHAL PRADESH.

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VIPUL SHARMA S/O SMT SUNAINA KIRAN D/O SH ISHWAR CHAND R/O VILLAGE DEVI NAGAR, TEHSIL PAONTA SAHIB DISTRICT SIRMOUR HIMACHAL PRADESH.

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... DEFENDANTS

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JASVEER KAUR W/O LATE SH VIR VIKRAM JIT SINGH S/O SH PREM SINGH S/O LATE SH TARA SINGH R/O VILLAGE HARIPUR TOHANA, P.O. SHIVPUR, TEHSIL PAONTA SAHIB, DISTT SIRMOUR HIMACHAL PRADESH. PIN 173025

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GURMEET KAUR W/O LATE SH VIR VIKRAM JIT SINGH S/O SH PREM SINGH S/O LATE SH TARA SINGH R/O VILLAGE HARIPUR TOHANA, P.O. SHIVPUR, TEHSIL PAONTA SAHIB, DISTT SIRMOUR HIMACHAL PRADESH. PIN 173025

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GURDEV SINGH S/O LATE SH JASMER SINGH S/O LATE SH TARA SINGH R/O VILL GENDIKHATA P.O. GENDIKHATA KHAS TEHSIL AND DISTT HARIDWAR UTTRAKHAND.

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…PERFORMA DEFENDANTS

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BY SHRI BHUPINDER GUPTA, SENIOR ADVOCATE WITH SHRI JANESH GUPTA, ADVOCATE, FOR R-1 SHRI KARAN SINGH KANWAR, ADVOCATE FOR R-7 & 14 SHRI DESH RAJ THAKUR, ADVOCATE, FOR R-15 TO 18 SHRI ASHOK K. TYAGI, ADVOCATE, FOR R-19 & 20 SHRI RAJNEESH K. LALL, ADVOCATE, FOR R-21 RESPONDENTS NO.2 TO 6, 8 & 9 TO 11 EX.PARTE Whether approved for reporting? Yes.

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This appeal coming on for pronouncement this day, the Court delivered the following:

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J U D G M E N T

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In this Civil Suit, defendants No.15 to 18 have

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filed an application OMP No.239 of 2021 , under Order VII Rule 11 of the Code of Civil Procedure (for short ‘CPC’), for rejection of plaint under Rules 11(b) & 11(d) of Order VII CPC, on the grounds that there is no right to sue for the relief claimed in the suit, suit is barred by Law of Limitation, and, cause of action and relief claimed is not recognized by law of land and, thus, suit is manifestly vexatious and meritless and abuse of process of law.

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In response, plaintiffs have claimed that the application is an abuse of process of law and is not maintainable, as the defendants No.15 to 18 have not come to the Court with clean hands and the application is bad on account of lack of better particulars, material information and it suffers from legal error. It has been claimed on behalf of the plaintiffs that for the pleadings in the plaint and documents filed therewith, suit filed by the plaintiffs is maintainable and no ground, as claimed by defendants No.15 to 18, is made out for rejection of plaint.

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Learned counsel for defendants No.15 to 18 have placed reliance on T. Arivandandam v. T.V. Satyapal & another, (1977) 4 SCC 467; Ajhar Hussain v. Rajiv Gandhi, 1986 (Supp) SCC 315; Liverpool & London S.P. & I Association Ltd. v. M.V.

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Sea Success I and another, (2004) 9 SCC 512; Swamy Atmanana & others v. Sri Ramakrishna Tapovanam and others, (2005) 10 SCC 51; Khatri Hotesl Private Limited & another v. Union of India and another, (2011) 9 SCC 126; Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) Dead through Legal Representatives & others, (2020) 7 SCC 366; Raghwendra Sharan Singh v. Ram Prasanna Singh (Dead) by Legal Representatives, (2020) 16 SCC 601; and Rajender Bajoria v. Hemant Kumar Jalan, 2021 SCC Online 764 : AIR 2021 SC 4594.

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Learned counsel for the plaintiffs has placed reliance upon C. Natrajan v. Ashim Bai and another, (2007) 14 SCC 183; Bhau Ram v. Janak Singh & others, AIR 2012 SC 3023; Kuldeep Singh Pathania v. Bikram Singh Jaryal, (2017) 5 SCC 345; and Srihari Hanumandas Totala v. Hemant Vithal Kamat and others, (2021) 9 SCC 99.

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I have heard learned counsel for the parties and has gone through the record as well as case law cited by them.

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In principle, there is no quarrel with respect to ratio of law related to Order VII Rule 11 CPC and cause of action, and the pronouncements of the Supreme Court relied upon by both sides.

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Basic principle is that for adjudicating an application under Order VII Rule 11 CPC, no other material

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except plaint and documents filed therewith are to be considered.

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Plaintiffs, alongwith proforma-defendants No.19 to 21, are successors-in-interest of Ram Singh. Defendants No.7 to 14 are successors-in-interest of Basant Singh, whereas defendant No.1 is purchaser of suit land from Rattan Kaur and Pritam Kaur, both daughters of Basant Singh, and defendants No.15 to 18 are subsequent purchasers of parts of suit land from defendant No.1.

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As per plaintiffs’ case, Basant Singh created a simple mortgage, without possession, on the suit land in favour of Ram Singh, for borrowing `800/-, with undertaking to pay the same within three years alongwith interest and also to pay penal compounding interest for default in making repayment of the loan and not to alienate or dispose of the mortgaged property till then. Mortgage Deed was registered with Sub Registrar on 26.6.1931, but before recording of the same in the Revenue Record, Ram Singh expired and, thus, mutation of mortgage was attested in favour of Tara Singh son of Ram Singh. Plaintiffs and proforma-defendants No.19 to 21 are successors-in-interest of Tara Singh.

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After death of Basant Singh and subsequent death of his wife, estate of Basant Singh was inherited by his two daughters Rattan Kaur and Pritam Kaur in equal shares.

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Rattan Kaur sold her share to defendant No.1 on 18.2.1999 and Pritam Kaur sold her share to defendant No.1 on 26.6.2000. Mutation No.1240 dated 7.8.2018 was attested by Revenue Authority deleting/omitting the names of plaintiffs and other persons, who, being successors-in-interest of Tara Singh, were recorded as mortgagees.

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Defendant No.1 sold parts of the land, purchased from Rattan Kaur and Pritam Kaur, to Netar Singh, Vipul Sharma, Ranjana Raina and Dhanvir, vide Sale Deeds dated 21.1.2019, 21.1.2019, 19.3.2019 and 20.5.2019, respectively. These purchasers are defendants No.15 to 18.

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Suit has been filed, seeking declaration that Mutation No.1240 of 2018 dated 7.8.2018; Sale Deeds No.171/1999 dated 21.1.2019, 175 dated 26.6.2019, 191/2019 dated 21.1.2019, 192/2019 dated 21.1.2019, 675/2019 dated 19.3.2019 and 1152/2019 dated 25.5.2019 are null and void and that plaintiffs and proforma-defendants No.19 to 21 are owners of the suit land; for permanent prohibitory and mandatory injunction against the defendants restraining them from interfering, raising illegal construction, creating any charge or changing the nature of or alienating the suit land in any manner and if defendants have raised illegal construction over the same then for direction to demolish the illegal construction raised by them.

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In Para-6 of the plaint, plaintiffs have stated that it was agreed by mortgagor Basant Singh to pay mortgage amount within three years and to redeem the land, failing which he had agreed to pay 75 paise (12 Annas) upto three years from the date of execution of the Mortgage Deed and failing which 2.00 per month with monthly compounding interest till realization of total amount. It has also been claimed that in terms of the mortgage, a sum of 10,15,86,956/- is recoverable from defendants No.2 to 14 being successors-in-interest of deceased Basant Singh, however, no prayer for such recovery has been made in the prayer clause nor Court Fee for claiming such recovery has been affixed.

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In Para-9 of the plaint, it has been stated that Basant Singh or is legal representatives have failed to redeem the mortgaged property within the period of thirty years which expired in the year 1961 and, therefore, their right to redeem the said property ceased to exist from 1961, losing right, title or interest of any kind over the suit land and, therefore, on the principle of foreclosure mortgagee Ram Singh and upon his death his legal representatives became owner of the suit land and, thus, alienation of the property by Rattan Kaur and Pritam Kaur is illegal and wrong and transferees from both of them have no right, title or interest of any kind in the suit land.

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In Para-17 of the plaint, it has been stated that cause of action arose in favour of the plaintiffs earlier when Rattan Kaur and Pritam Kaur executed Sale Deeds in favour of defendant No.1 and defendant No.1 got the mutation attested in his favour, and on dates when defendant No.1 executed Sale Deeds in favour of defendants No.15 to 18 and, lastly, on 3.1.2020, when plaintiff No.1 visited the suit land and was surprised to see that agents of defendants had started raising construction over the suit land. Further that, cause of action is still subsisting as the amount of mortgage has not been paid by the defendants till date and, thus, it has been claimed that suit is not barred by limitation.

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Indisputably, mortgage created in present case is “simple mortgage” which is defined in Section 58(b) of Transfer of Property Act, 1882 (hereinafter referred to as ‘TPA’), which reads as under:

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“58(b) Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgagemoney, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.”

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The aforesaid provision of TPA does not entitle a mortgagee to acquire right of ownership in the mortgaged property, rather it provides, as has also been done in

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Registered Mortgage Deed, mortgagor binds himself personally to pay the mortgage-money and agrees, expressly or impliedly, that in the event of his failing to pay, according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and proceeds of the sale to be applied in payment of mortgage-money.

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In present case, mortgagor had agreed to pay the borrowed money within three years. Therefore, right to recovery the borrowed amount accrued after three years, i.e. in the year 1934 (26.6.1934).

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Article 62 of the Limitation Act, 1963 provides that a suit to enforce payment of money secured by mortgage can be filed within 12 years, when the money sued for becomes due. Therefore, limitation to file a suit for recovery of amount due in present case, in terms of Section 58(a) of TPA, expired on 26.6.1946, but during that period no suit was filed by the mortgagee or his successors-in-interest for recovery of the mortgage-money or recovery thereof by selling the mortgaged-property.

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In the plaint, right to ownership has been claimed on the basis of principle of foreclosure. There is no any such principle in law of the land creating right of mortgagee to acquire ownership in the mortgaged property automatically, declaring him owner.

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Rights and liabilities of mortgagee have been provided in Chapter-IV of TPA and Sections 67 and 68 are relevant for adjudication of present lis and claim of parties, which read as under:

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“67. Right to foreclosure or sale :- In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage-money has become due to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the Court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold.

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A suit to obtain a decree that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure.

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Nothing in this section shall be deemed-

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(a) to authorize any mortgagee, other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or

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(b) to authorize a mortgagor who holds the mortgagees rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure: or

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(c) to authorize the mortgagee of a railway, canal or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale; or

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(d) to authorize a person interested in part only of the mortgage-money to institute a

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suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, served their interests under the mortgage.

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67A. Mortgagee when bound to bring one suit on several mortgages : - A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67 , and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.

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Right to sue for mortgage-money :- (1) The mortgagee has a right to sue for the mortgage-money in the following cases and no others, namely-

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(a) where the mortgagor binds himself to repay the same;

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(b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;

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(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;

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(d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor:

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Provided that, in the case referred to in clause (a), a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage-money.

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(2) Where a suit is brought under clause (a) or clause (b) of sub-section (1), the Court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security and, if necessary, retransfers the mortgaged property. ”

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Section 67 provides that nothing in this Section shall be deemed to authorize any mortgagee, other than a mortgage by conditional sale or a mortgage under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or usufructuary mortgage as such or a mortgagee by conditional sale as such to institute a suit for sale. Therefore, in a case of simple mortgage, right to foreclosure is not available. Thus, claim of the plaintiffs, on the basis of principle of foreclosure, is misconceived being not available under law.

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Section 67 also provides a right to obtain a decree from the Court to sell the property after mortgage-money had become due to the mortgagee, any time before passing of decree of redemption of mortgage property or payment or deposit of mortgage-money.

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It is apt to record here that present suit is not a suit by mortgagee for a decree to sell the property for

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recovery of mortgage-money. Even otherwise, such suit after 26.6.1946 would have been time barred, in view of limitation prescribed in Article 62 of the Limitation Act.

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Section 68(1)(a) gives right to sue for mortgagemoney where the mortgagor binds himself to pay the same, as is the case in present suit, for undertaking given by the borrower to repay the same within three years from the date of creation of simple mortgage, plaintiff(s) may have such right. However, proviso to Section 68(1) provides that in such case a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgagemoney. As, in present case, now mortgaged property has been sold to Defendants No.1 and 15 to 18. They shall not be sued for repayment of the mortgage-money. It is also apt to record that suit has not been filed for recovery of mortgagedmoney under Section 68 of the TPA. In any case, such suit would have also been barred by limitation as provided under Article 62 of the Limitation Act.

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One prayer in the suit is for declaration that plaintiffs and proforma-defendants are owners of the suit land. Admittedly, plaintiffs and proforma-defendants are not in possession. Section 34 of Specific Relief Act, 1963, provides as under:

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“34. Discretion of court as to declaration of status or right. - Any person entitled to any legal character; or to any right as to any property, may institute a suit

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against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

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Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

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Explanation: A trustee of property is a "person interested to deny" a title adverse to the title of someone who is not in existence, and for whom, if in existence, he would be a trustee. ”

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In present case, suit simpliciter for declaration that plaintiffs and proforma-defendants are owners of the property is not maintainable as plaintiffs have not sought relief of possession of the property without which, in view of aforesaid provision of Section 34 of Specific Relief Act, no declaration of ownership shall be made by the Court. Otherwise also, there is no provision in the Act to acquire ownership in the mortgaged property subject matter of simple mortgage.

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Plaintiffs have sought declaration to declare the Sale Deeds and mutations executed and attested during the period from 18.2.1999 to 25.5.2019. Suit has been filed on 13.1.2020. A per plaint, cause of action firstly arose to the plaintiffs at the time of execution of Sale Deeds by Rattan Kaur and Pritam Kaur, which were executed on 18.2.1999 and 26.6.2000.

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…19…

¶148

Schedule in Part-III of Limitation Act, 1963 provides limitation with respect to suits related to declaration. Article 58 of the Limitation Act provides three years limitation to obtain any other declaration from the date when right to sue first accrues. The word “first” has been used between the words “sue” and “accrues”, meaning thereby that where suit is based on multiple cause of actions, period of limitation shall begin from the date when the right to sue first accrues. In present case, as stated in Para-17 of the plaint, first cause of action accrues in favour of the plaintiffs and proformadefendants with respect to transfer of the mortgaged property by legal representatives of mortgagee on 18.2.1999 and 26.6.2000. Therefore, limitation to seek declaration against the Sale Deeds was upto 18.2.2002 and 26.6.2003, when Rattan Kaur and Pritam Kaur sold their share to defendant No.1. Thereafter, defendant No.1 sold parts of the property to defendants No.15 to 18. As challenge to Sale Deeds executed by Rattan Kaur and Pritam Kaur is barred by limitation, therefore, subsequent Sale Deeds by defendant No.1 shall not revive the right of the plaintiffs to assail the Sale Deeds executed by Rattan Kaur and Pritam Kaur and in absence of challenge to those Sale Deeds for setting aside of those Sale Deeds, declaration to the effect that subsequent Sale Deeds are null and void is not maintainable as unless or until Sale Deeds executed by Rattan Kaur and Pritam Kaur are declared

¶149

Civil Suit No.42 of 2020

¶150

…20…

¶151

null and void there shall be no reason to declare the subsequent Sale Deeds null and void. Therefore, suit with respect to this prayer is also liable to be dismissed being beyond the period of limitation from the date when the right to seek declaration with respect to selling of the mortgaged property accrued in favour of the plaintiffs. Not only for this but also provision contained in proviso to Section 68(1) of TPA, which provides that the transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage-money, the suit is not maintainable against defendant No.1 and defendants No.15 to 18 and, thus, declaration prayed with respect to them is also barred by law.

¶152

Though plaintiffs have attempted to make an illusory cause of action, but from the record it is apparent that they have failed to disclose legal, valid and enforceable cause of action in their favour and against the defendants. The plaint is liable to be rejected on this count also.

¶153

Plaint with respect to declaration sought by the plaintiffs is not maintainable. Therefore, relief of permanent prohibitory and mandatory injunction is also not maintainable, particularly when plaintiffs are neither in possession nor owners of the property or entitled to be declared as owner of the property.

¶154

Plaint is also lacking mandatory statement with respect to valuation of suit. Though in Para-6 of the plaint, it

¶155

Civil Suit No.42 of 2020

¶156

…21…

¶157

has been claimed that plaintiffs are entitled for recovery of `10,15,86,956/-, but no such prayer has been made for such recovery and in absence of that suit simpliciter for declaration and injunction should have been filed in the Court of first resort and, therefore, plaint was liable to be returned under Order VII Rule 10 CPC. However, for the findings returned hereinabove that suit is barred by law, no order is ordered to be passed on this count.

¶158

Prayer has been made for declaring the Sale Deeds null and void, but without affixing requisite Court Fee for such declaration as payable on the basis of valuation of property in Sale Deeds. Plaintiffs may have been directed to affix appropriate Court Fee. But as the suit has otherwise been found barred by law, therefore, direction for affixing appropriate Court Fee is neither necessary nor being passed. 35. In view of above discussion, the suit is barred by law and it is not disclosing valid cause of action entitling the plaintiffs to file and maintain the suit. Hence, OMP No.239 of 2021 is allowed and consequently the plaint is rejected.

¶159

The suit stands disposed of, in the aforesaid terms, so also pending applications if any.

Bakshish Singh and Others v. Ajay Vir Singh Gill and Others

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Bakshish Singh and Others v. Ajay Vir Singh Gill and Others

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