The High Court dismissed an appeal against an order dismissing a civil suit for declaration of ownership and correction of revenue entries. The Court held that mortgagees cannot become owners by efflux of time.
The appeal was dismissed without any substantive relief being granted to the appellants.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
RSA No.2852 of 2009 (O&M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2852 of 2009 (O&M) Date of decision:05.05.2014
Nasruddin and others
....Appellants
Versus
Mehmooda and others
....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present:- Mr. Ashwani Bakshi, Advocate for the appellants.
Mr. B.S.Rana, Advocate for respondents No.1, 2 & 4 to 7.
RAKESH KUMAR GARG, J
Appellants filed the instant suit for declaration to the effect that they along with defendants No.29 to 34 and their predecessorsin-interest are recorded as mortgagees in possession of the agricultural land bearing Khewat/Khata No.116/150, Rect.No.10, Killa No.13(8-0) situated within the revenue estate of village Aklimpur, Ferozepur, Tehsil Ferozepur Jhirka, District Gurgaon, whereas defendants No. 1 to 28 are recorded as mortgagor/owners of the suit land. As per further averments, plaintiff-appellants had purchased the mortgagee rights to the extent of ½ share in the suit land from Hukam Chand, a recorded mortgagee with all rights appurtenant
Kadian Savita 2014.05.09 14:04 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.2852 of 2009 (O&M)
2
thereof, vide sale deed dated 31.12.1987 and since then they were in possession to the extent of ½ share and remaining ½ share was in possession of defendants No.29 to 34 as mortgagees.
It is the further case of the appellants that they had acquired ownership rights by prescription with lapse of time and extinguishment of all rights, title and interest as owner/mortgagors failed to redeem the suit property and to obtain its possession within the prescribed period of limitation of 30 years. Defendants No.1 to 28 had got absolutely no interest in the suit property and the plaintiffs along with defendants No.29 to 34 have become full fledged owners of the suit land whereas revenue entries in the revenue record in column of ownership were continuing in favour of defendants No.1 to 28 which are illegal, null and void and not binding upon their rights and the same are liable to be corrected.
Upon notice, defendants No.1, 2, 4 to 7, 16, 18, 20, 22 to 24 and defendants No.10 and 26 appeared. Defendants No.1, 2 and 4 to 7 filed their joint written statement controverting the submissions made in the suit submitting that the suit land has been partitioned up to Financial Commissioner Haryana and further possession has been transferred. The plaintiffs have filed the present suit by concealing the material facts. The plaintiffs and defendants No.29 to 34 have no right, title or interest in the suit land and the said proceedings are legal and binding upon the plaintiffs.
Kadian Savita 2014.05.09 14:04 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.2852 of 2009 (O&M)
3
Defendants No.15, 16, 18, 20, 22 to 24 filed their joint written statement admitting the claim of the plaintiffs.
Defendants No.10 and 26 have filed their joint written statement taking some preliminary objections of maintainability, cause of action, estoppel and jurisdiction. In reply on merits, it is submitted that the plaintiffs and defendants No.29 to 34 have no right, title or interest in the suit land. They have never been in possession of the suit land. If the plaintiffs are proved to be mortgagees, it was a usufructuary mortgage and no fixed period was provided in deed. The answering defendants have all right to redeem the suit land. The defendants are coming in possession of the suit land. The plaintiffs have no right to seek declaration of ownership and correction of revenue entries. Defendants No.10 and 26 took the similar stand as taken by defendants No.1, 2, 4 to 7 and prayed for dismissal of the suit.
On the basis of the pleadings of the parties, following issues were framed:-
Kadian Savita 2014.05.09 14:04 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.2852 of 2009 (O&M)
4
The evidence was recorded by the trial Court and after hearing learned counsel for the parties, the suit was dismissed with costs.
While dismissing the suit, trial Court found that suit land had already been partitioned between the parties and appellants failed to prove the possession over the suit land and thus, they were not entitled to relief as prayed.
Feeling dis-satisfied from the findings recorded by the trial Court, plaintiffs filed an appeal before the First Appellate Court which was also dismissed vide impugned judgment and decree dated 27.11.2008.
Apart from upholding the findings of the trial Court that the appellants were out of the possession at the time of filing of the suit and the suit was filed by concealing the material facts, it was
Kadian Savita 2014.05.09 14:04 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.2852 of 2009 (O&M)
5
further held that the appellants cannot claim themselves to be owners in possession by efflux of time on the ground that the land was not got redeemed within stipulated time.
Still not satisfied, aggrieved plaintiffs have filed the instant appeal challenging the judgments and decrees of the Courts below submitting that following substantial questions of law arise in this appeal:-
ii) Whether the learned Courts below committed an illegality by non-suiting the appellant/plaintiffs on the ground that they have not specifically challenged the partition proceedings ignoring the categoric averments made in para No.5 of their plaint?
iii)Whether learned Courts below have committed an illegality in dismissing the suit and appeal of the appellant/plaintiffs on the ground that they had not challenged the partition proceedings ignoring the fact that the revenue authorities were forums of limited jurisdiction and in the partition proceedings pending before them question of title was neither raised nor decided, whereas the present suit is concerned with the question of title?
Kadian Savita 2014.05.09 14:04 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.2852 of 2009 (O&M)
6
iv)Whether the learned Courts below have erred in law in giving undue weightage to the rapat roznamcha prepared during the partition proceedings over the subsequent revenue record while holding that appellant/plaintiffs are no more in possession of the suit land ignoring the fact that rapat roznamcha is merely a paper transaction?
Learned counsel for the appellants has vehemently argued that partition proceedings in which the appellants were not party cannot be made the basis to non-suit them and the Courts below have gravely erred in law in giving undue importance to the factum of partition of the suit land as the same was not binding upon them as a right of full owners of the suit land vested in them by efflux
Kadian Savita 2014.05.09 14:04 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.2852 of 2009 (O&M)
7
of time.
Be that as it may, this Court is of the opinion that in view of the law laid down by Hon'ble the Supreme Court in the case of Ram Kishan and others vs. Sheo Ram and others 2008(1) PLR 1 wherein it has been held that once a mortgagee always a mortgagee and the fact that appellants themselves are claiming that they were in possession of the suit land as mortgagees, they cannot become the owners in possession by efflux of time.
In view of the aforesaid, this Court is of the opinion that no substantial questions of law, as raised, arise in this appeal.
Dismissed.
May 05, 2014 savita
(RAKESH KUMAR GARG) JUDGE
Kadian Savita 2014.05.09 14:04 I attest to the accuracy and integrity of this document High Court Chandigarh
3 issues framed by the court
Whether partition proceedings not impleading appellants can bar relief in a title suit?
Whether appellants can claim ownership by efflux of time as mortgagees?
Whether dismissal of the suit involves illegality regarding title questions versus partition records?
Colour shows how this judgement treated each authority
Ram Kishan and others vs. Sheo Ram and othersExplained¶64
Ram Kishan and others vs. Sheo Ram and others 2008(1) PLR 1
2 provisions across 1 enactments
Nasruddin and others
Mehmooda and others
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
