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Amir Shah And Ors. vs Tula Pande And Ors.

High Court Of Judicature at Allahabad|27 April, 1915


JUDGMENT Piggott, J.
1. The question, raised by this second appeal is whether the lower Appellate Court was justified in dismissing the suit brought by the plaintiffs-appellants now before me, on the ground that it was barred by limitation: stated somewhat more strictly, the precise point is whether the lower Appellate Court was justified in so dis-misaing the suit, without, formally recording a certain finding of fact which, it is contended, has not been recorded. The plaint as filed was somewhat curiously drafted. The land in suit was stated to be revenue-free land appertaining to a certain ivaqf created in favour of a shrine, known as the shrino of Hazrat Shah Nandpir in the Ghazipur District. The plaintiffs claimed to be the trustees of the said shrine. They impleaded three defendants, though the allegations in their plaint are entirely directed against Tula Parde, defendant No. 1. There is no explanation of the appearance of the defendants Nos. 2 and 3 on the record, beyond the remark that they have been impleaded as pro forma defendants. I may add that they are not impleaded in the 2nd appeal now before me. With regard to the defendant Tula, it is alleged that he was the tenant of the land specified in the plaint; but that he had succeeded without the plaintiffs' knowledge in getting himself recorded in the village papers as being in possession of a 3/5th share in the said land as mortgagee. It was said that there was no asliat, reality or substance, in the alleged mortgage. It was further stated that these facts came to the knowledge of the" 'plaintiffs when they sued the said Tula for arrears of rent. Tula pleaded the mortgage and eventually, the decision was in his favour as regards the 3/oth share of which he claimed to be the mortgagee. The date of the decision of the Revenue Court against the plaintiffs on this point, namely, the 26th November 1911, was stated as the date of the origin of the cause of action. In the last paragraph of the plaint, while specifying the reliefs sought, the plaintiffs for the first time admitted in a casual sort of way that they were aware that the defandant Tula was claiming to hold under two mortgage-deeds of specified dates. The decree asked for is one for recovery of possession, on the ground that the land specified at the foot of the plaint is muafi land forming part of an endowment in favour of the shrine of Hazrat Shah Nandpir, which no one was entitled to mortgage, sell, or transfer in any other way. Then follows the specification of two mortgage-deeds alleged to be in themselves null and and void, and a prayer that they may be declared to be so. The dates of the mortgage-deeds are given according to the Fasli era. The earlier of the two is dated sometime in the year 1853 or 1854 A.D. while the date of the latter, which is the more important for the purpose now before me, corresponds with 5th February 1859. The lower Appellate Court has recorded a finding that the persons who were, on the dates borne by these deeds, the trustees or managers of the shrine executed the mortgages in question in favour of Tula Pande, who thus became the inortgageeof a 3/5th share in the land in suit, the whole of which had been his occupancy holding.
2. That Court also points out that the defendant's status as mortgagee to this extent was recognized at the Settlement of 1884 A.-D., and that in tha years 1866 and 1890 attempts to claim from him the rent of the land in suit had been defeated to ths extent of the 3/5th share held on mortgage, upon the defendant's setting up the mortgages in question. The Court below holds it clearly proved that from the year 1866 onward, if not earlier, the defendant has been successfully asserting against the managers of the shrine his right to hold possession under the mortgages now called in question. On these findings the learned Subordinate Judge has dismissed the suit as barred by the 12 years rule of limitation, whether Article 134 or Article 144 of Schedule I to the Indian Limitation Act, No. IX of 1908, be applied. He supports himself by the decision of a Full Bench of this Court in Behari Lal v. Muhammad Muttu 20 A. 482 : A.W.N. (1898) 128. It is contended before me that the Court of first instance had recorded a finding to the effect that the defendant Tula had failed to prove that the mortgages in question were for valuable consideration, and that the lower Appellate Court should not have dismissed the suit without expressly reversing that finding. I have pointed out already the form in which the plaint was drawn up. The mortgage or mortgages under which the defendant Tula claimed to hold were indeed assailed as null and void, but the only reason put forward was that the property said to be mortgaged was trust property and so inalienable. The plaintiffs avoided mentioning the particular mortgage-deeds which they desired to assail until the very end of their plaint, and even then never suggested that the person or persons who had executed these mortgages had received no consideration. The point was not raised by the pleadings and the defendant was not put to proof of the passing of consideration, even supposing that he could be expected, after the lapse of 50 or 60 years, to produce any evidence on the question of consideration other than the recital in the deeds themselves. The decision of the lower Appellate Court proceeds on the assumption that there was an actual contract of mortgage between the trustees of the endowment on one side and the defendant Tula on the other, that is to say, an actual transfer by way of mortgage which could only be called in question on the ground of the limited rights of the transferor in the property purporting to be dealt with. I think this is a reasonable view of the case on the facts as stated in the judgment of the lower Appellate Court. Apart from this, the decision of that Court has been supported before me on another ground. What the appellants now before me say is that, in the absence of an express finding that Tula was an assignee for valuable consideration from the then trustees of the waqf, the ease is covered and limitation saved by the provisions of Section 10 of the Indian Limitation Act, No. IX of 1908. The principle laid down by that section was introduced for the first time in the Limitation Act No. IX of 1871 which came into force on the 1st of July 1871. The later of the two mortgage-deeds now sought to be attacked bears a date more than 12 years prior to the coming into force of the Act above mentioned. According to the principle laid down in Jagmnlm Goswami v. Ramchandra Goswami 31 C. 314 the present suit would in any case be barred by the fact that Tula had been in possession, holding as mortgagee from the trustees of the endowed property, for 12 full years and more, prior to the coming into force of the Limitation Act of 1871. On these grounds I hold that this appeal fails and I dismiss it with costs.
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Amir Shah And Ors. vs Tula Pande And Ors.


High Court Of Judicature at Allahabad

27 April, 1915
  • Piggott