Dismissed

Bir Chand (Deceased) through LRs Thakur Chand and Others v. Devi chand @ Devi Ram (Deceased through LRs Devi Singh and Others

Himachal Pradesh HC17 Jul 2024RSA/13/2023

Case brief

AI extract

What is this about?

In a regular second appeal, the High Court of Himachal Pradesh dismissed the appellant/plaintiff's appeal. The trial court had held that the mortgage money was deposited in 2012 under Section 62 of the Transfer of Property Act, preventing the plaintiff from claiming ownership via afflux of time. The High Court affirmed the lower courts' findings as there was no substantial question of law.

What did the court decide?

The appeal was dismissed, and the pending miscellaneous applications were also dismissed. No order as to costs. Interim order, if any, stands vacated.

Bir Chand (Deceased) through LRs Thakur Chand… — Property and Title | Himachal Pradesh HC (2024)

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2024:HHC:12289

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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RSA No.13 of 2023 Decided on: 17.07.2024

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Bir Chand (deceased) through his LRs. Thakur Chand & others … Appellants. Versus Devi Chand alias Devi Ram (deceased) through his LRs. Devi Singh & others … Respondents.

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Coram

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Hon’ble Mr. Justice Ajay Mohan Goel, Judge.

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Whether approved for reporting?¹ Yes

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_____________________________________________________ For the appellants : Mr. Maan Singh, Advocate. For the respondents : Respondents No.1 (a) and 1 (b) are ex parte .

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None for respondents No.2(a) & 2 (b). Mr. G.R. Palsra, Advocate, for respondents No.3 and 4.

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Ajay Mohan Goel, Judge (Oral)

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By way of this Regular Second Appeal, the appellant/plaintiff assails the judgment and decree passed by learned Court below, in terms whereof, a suit for declaration filed by the plaintiff/appellant was dismissed and so was the fate of the appeal.

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Brief facts necessary for the adjudication of the present appeal are that appellant/ plaintiff (hereinafter to be referred as ‘plaintiff’) filed a suit for declaration that he had become owner of the

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1 Whether reporters of the local papers may be allowed to see the judgment?

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2024:HHC:12289

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suit land on the failure of the defendants to redeem the same within the permissible time limit as per law and all rights, title and interest of the defendants upon the suit land stood extinguished under law and the suit land was under exclusive ownership and possession of the plaintiff. As per the plaintiff, one Shri Kundan, predecessor-ininterest of the defendants had mortgaged the suit land in favour of the predecessor-in-interest of the plaintiff, namely, Ramu. After the death of original mortgagee his rights in the suit land were inherited by Devi Ram and after Devi Ram, the plaintiff. After the death of original mortgagor the defendants succeeded him. The mortgage was oral and enjoyed by the original mortgagor and after his death, by the defendants. As the predecessor-in-interest of the defendants failed to redeem the suit land by 22.06.1990, the plaintiff had become owner thereof and the defendants were having no right, title or interest thereupon. It was further the case of the plaintiff that as in the months of July and August, 2012, defendants started proclaiming their right to redeem the suit land, accordingly, cause of action accrued in favour of the plaintiff to file the suit and hence the suit, as the defendants have failed to admit the claim of the plaintiff. 3. The suit was contested by defendants No.1, 3 and 4, who inter alia took the stand that they had the right to redeem the suit land at any time and they had already filed appropriate application

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2024:HHC:12289

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before the competent Court to the said effect. As per them, the mortgage was with possession.

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On the basis of the pleadings of the parties, learned Trial Court framed the following issues:-

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“ 1. Whether the plaintiff has become owner in possession of the suit land by way of afflux of time, as alleged? OPP. 2. Whether the suit of the plaintiff is not maintainable? OPD.

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3. Whether the plaintiff has no locus-standi to file the present suit? OPD.

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4. Whether the plaintiff has no cause of action to file the present suit? OPD.

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5. Relief.”

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On the strength of evidence which was led by the parties in support of their respective contentions, the issues so framed were answered as under:-

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“ Issue No.1 : No Issue No.2 : Yes Issue No.3 : Yes Issue No.4 : Yes Relief : Suit of the plaintiff is dismissed as per operative part of the judgment”

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Learned Trial Court after relying upon the judgment of

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Hon’ble Supreme Court of India in Singh Ram (D) Thr. L.Rs. vs. Sheo

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2024:HHC:12289

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Ram & others, 2014 (4) Civil Court Cases 591 (S.C.) , held that special right of usufructuary mortgagor under Section 62 of the Transfer of Property Act to recover possession commences only when mortgage money is paid out of rents and profits and party out of rents and profits and partly by payment or deposited by mortgage and until then the limitation does not starts. Learned Trial Court also held that a usufruct mortgagee was not entitled to file a suit for declaration that he had become owner merely on expiry of 30 years from the date of mortgage. It also held that Ext.D-5 to Ext.D-8 demonstrated that the mortgage money was deposited with SubDivisional Collector on 10.10.2012 and in terms of the law declared by Hon’ble Supreme Court, right to recover possession only commences when the mortgage money was paid and until then limitation do not start. It held that as in the case till the year 2012, limitation does not starts, the usufructuary mortgage was not entitled to file the suit for declaration that he had become owner merely on the expiry of 30 years from the date of mortgage. It also held that the suit was also not maintainable as the plaintiff was not having any cause to file and maintain the suit.

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Learned Appellate Court upheld these findings again by referring to the judgment of Hon’ble Supreme Court relied upon by learned Trial Court. It held that the law as declared by Hon’ble

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Supreme Court in Singh Ram’s case (supra) was rightly applied by learned Trial Court and the view taken by learned Trial Court and the appreciation of the evidence by learned Trial Court called for no interference.

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Feeling aggrieved, the plaintiff has filed this Regular Second Appeal.

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During the pendency of these proceedings, the Court was informed that the plaintiff had purchased part of the suit land and was making an endeavour to purchase the remaining portion thereupon. On the prayer of the appellant, the matter was deferred on certain dates, but today the matter was heard for admission as learned counsel for the appellant submitted that the parties were not willing to sell the remaining portion of the suit land to the appellant.

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Having heard learned counsel for the parties and having carefully gone through the judgments and decrees passed by learned Courts below, this Court is of the considered view that this appeal does not involves any substantial question of law.

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The relief prayed for by the plaintiff has been refused by learned Trial Court by holding that the plaintiff had not become owner in possession of the suit land by afflux of time, by relying upon the judgment of the Hon’ble Supreme Court in Singh Ram’s case (supra). Hon’ble Supreme Court in the said judgment has been

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pleased to hold that special right of the usufructuary mortgagor under Section 62 of the Transfer of Property Act to recover possession commences in the manner specified therein, i.e. when mortgage money is paid out of the rents and profits or partly out of rents and profits and partly by payment or deposited by mortgagor and until then, limitation does not start and usufructuary mortgagee is not entitled to file a suit for declaration that he has become an owner merely on the expiry of 30 years from the date of the mortgage.

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After taking note of the said adjudication by Hon’ble Supreme Court, learned Trial Court by referring to Ext.D-5 to Ext. D-8 held that the mortgage money stood deposited by the parties concerned before Sub-Divisional Collector on 10.10.2012 and hence the suit as filed was not maintainable.

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This Court concurs with the findings that were returned by learned Trial Court and were affirmed by learned Appellate Court. The factum of deposition of the mortgage money on 10.10.2012 before Sub-Divisional Collector, Kullu is clearly borne out from the record and these findings being clear cut findings of fact and further in view of the law declared by Hon’ble Supreme Court, the plaintiff not being entitled for the relief as was claimed by him in the Civil Suit, this Court does not finds any infirmity in the judgments and

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2024:HHC:12289

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decrees that have been passed by the learned Courts below and further it does not finds that any substantial question of law is involved in this appeal.

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Accordingly, present appeal is dismissed, so also the pending miscellaneous applications, if any. No order as to costs. Interim order, if any, stands vacated.

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(Ajay Mohan Goel) Judge

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July 17, 2024 (Rishi)

Bir Chand (Deceased) through LRs Thakur Chand and Others v. Devi chand @ Devi Ram (Deceased through LRs Devi Singh and Others

Case brief

What is this about?

What did the court decide?

Bir Chand (Deceased) through LRs Thakur Chand and Others v. Devi chand @ Devi Ram (Deceased through LRs Devi Singh and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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