1. This appeal under Section 100 of the Code of Civil Procedure is by the original defendant against whom the respondents herein had filed Regular Civil Suit No.7 of 1983 in the court of learned Civil Judge (J.D.) at Nakhatrana-Kutch seeking recovery of the possession of the land, admeasuring 7 acres and 25 gunthas of Survey No.82 on North side situated at village Nakhatrana-Kutch.
2. The case of the plaintiffs in the suit is that the plaintiffs purchased half of the land admeasuring 7 acres -25 gunthas from Survey No.82 from widow Rabari Sartabai of deceased Sava Sadan, who was brother of husband of defendant and who was having his one-half share as owner in the land bearing Survey No.82. The said land was purchased by registered sale deed dated 10.2.1972. However, the defendant had filed one Civil Suit No.28 of 1972 against the plaintiffs and co-owner of the land bearing Survey No.82 for declaration that the defendant was owner of the entire land of Survey No.82 and for permanent injunction restraining the plaintiffs from causing any obstruction in the enjoyment of the entire land of Survey No.82. The said suit of the defendant was allowed, against which the plaintiffs had preferred Civil Regular Appeal No.63 of 1979 and the appeal was partly allowed and the judgment and decree passed by the Trial Court granting declaration that the defendant was occupant of the entire area of Survey No.82 was set aside and rest of the judgment and decree passed by the Trial Court of granting permanent injunction against the plaintiffs from disturbing the possession of the defendant was confirmed and it was observed that the plaintiffs could recover possession of one-half of the land purchased by them from Survey No.82 by following due procedure of law. The plaintiffs have, therefore, filed this suit for declaration that the defendant is not entitled to hold possession of the land of Survey No.82 admeasuring 7 acres and 25 gunthas on the North side on the basis of the writing dated 7.3.1969 and for declaration that the possession of the defendant of the said land is unauthorized and illegal and the defendant is not entitled to such possession and the defendant be directed to handover the said land to the plaintiffs on the basis of the sale deed dated 10.2.1972.
3. The suit of the plaintiffs was resisted by the defendant by filing written statement at Exh.10 inter alia stating that on the basis of the sale deed dated 10.2.1972, the plaintiffs were not entitled to get possession from the defendant, that writing dated 7.3.1969 in favour of the defendant was not required to be registered and such writing dated 7.3.1969 established the transaction of mortgage in favour of the defendant and under such writing, the defendant is entitled to continue with the possession of the land and to get the possession from the defendant of the disputed land, the plaintiffs were required to file suit for redemption of the mortgage and the suit of the nature presently filed was not maintainable at law.
4. Learned Trial Judge on the basis of the appreciation of the evidence came to the conclusion that the plaintiffs have become absolute owners of the disputed land on the basis of the sale deed dated 10.2.1972 and by virtue of the judgment and decree passed by the Appellate Court in First Appeal No.63 of 1979, the plaintiffs became entitled to recover possession of the suit land from the defendant by following due procedure of law. Learned Trial Judge has further observed that by virtue of the decision in the above-referred First Appeal, it has been proved that the plaintiffs have become owner of the disputed land and the defendant cannot resist the claim of the plaintiffs on the ground that the defendant had become owner of the disputed land by adverse possession. Learned Judge however came to the conclusion that though the plaintiffs had become owner of the disputed property but the suit filed by the plaintiffs was not within the time limit and therefore, such time barred claim of the plaintiffs cannot be accepted. The Trial Court also came to the conclusion that the plaintiffs are also not entitled to have declaration to the effect that the defendant is holding possession of the suit land unauthorizedly and illegally and the plaintiffs were thus not entitled to recover possession of the suit land from the defendant.
5. The plaintiffs, therefore, filed Civil Regular Appeal No.15 of 1986 in the court of learned District Judge, Kutch at Bhuj. The appeal was heard and decided by the learned Extra Assistant Judge, Kutch at Bhuj, who came to the conclusion that the plaintiffs became entitled by virtue of the decision in their Appeal No.63 of 1979 to get declaration that the defendant is not entitled to hold possession and the plaintiffs can recover the possession from the defendant and therefore, by virtue of the earlier decision, the plaintiffs have become entitled to get declaration against the defendant. Learned Appellate Judge further came to the conclusion that earlier suit was filed by defendant in July 1972 which was after the sale deed dated 10.2.1972 in favour of the plaintiffs and the plaintiffs could not get possession from the defendant because of the injunction order passed by the Civil Court in the said suit against the plaintiffs and therefore, since the defendant continued to be in possession by virtue of the process of the Court below, the present suit of the plaintiffs could not be said to be time barred. Learned Appellate Judge also came to the conclusion that non-joining of co-owner Sartabai from whom the plaintiffs had purchased one-half share from Survey No.82 would not non-suit the plaintiffs as in earlier suit, Sartabai was joined by the defendant in her suit because the defendant was then wanting to get her title established in respect of the entire land of Survey No.82 and in the present suit, presence of Sartabai would not be necessary for recovery of the possession from the defendant because on the basis of the earlier judgment, the plaintiffs have already become entitled to recover possession from the defendant by following due process of law. Learned Appellate Judge ultimately came to the conclusion that the defendant being in illegal possession of the suit land, the plaintiffs are entitled to recover possession of the suit land from the defendant and the suit of the plaintiffs is required to be allowed. Thus, learned Appellate Judge allowed the appeal and declared the plaintiffs entitled to recover one-half portion of the land bearing Survey No.82 of village Nakhatrana, admeasuring 7 acres- 25 gunthas and also declared that the possession of the defendant over the suit portion of the land, was illegal. It is this judgment and decree, which is under challenge before this Court in this Appeal.
6. The appeal was admitted by order dated 9.3.1994 on the following substantial question of law:-
“Whether the decree for possession can be passed against present appellant (orig. defendant) in view of provision contained U/s. 53A of Transfer of Property Act in view of writing at Ex.36.”
7. Considering the pleadings of the parties and admitted evidence and in view of the principles of the law settled, in respect of the provisions of Section 53-A of the Transfer of Property Act, in my view, the above-substantial question of law does not arise for consideration of this Court. Learned advocates appearing for the parties also stated before the Court that since there is no question of protecting possession as and by way of part performance of the agreement and since no claim on the basis of the writing at Exh.36 is made for specific performance of the contract, this Court may formulate other substantial questions of law which may arise for consideration of this Court.
8. Learned advocate Mr. Vora appearing for the appellant stated before the Court that in view of the pleadings of the parties and on admitted evidence, this Court is required to consider as to whether when the possession of the disputed land was held by the appellant as mortgagee, simple suit for recovery of the possession was maintainable or the plaintiffs were required to file the suit for redemption of the mortgage to recover the possession from the appellant- defendant ? As against this, learned advocate Ms. Tanuja Kachchhi for Mr. Bavishi for the respondent stated before the Court that this Court may also formulate substantial question of law whether the plaintiffs were entitled to file simple suit for possession without asking for relief for redemption of the mortgage as the plaintiffs had already become entitled, in earlier proceedings, to file suit for recovery of the possession from the defendant.
9. This Court finds that the Courts in earlier proceedings as also in these proceedings, have held that the defendant is holding possession on the basis of the writing Exh.36. Such writing is stated to be the transaction of the mortgage. In earlier proceedings, the Appellate Court had held that though the plaintiffs had become owner of the disputed land by virtue of the sale deed, the plaintiffs would be required to file suit for recovery of the possession from the defendant. Therefore, neither in earlier proceedings nor in these proceedings, the question in connection with the rights flowing from Section 53-A of the Transfer of Property Act was the controversy. The controversy in the earlier suit was whether that the plaintiffs had become owner of the disputed property and since the plaintiffs were given liberty to file suit for recovery of the possession, the controversy in the present proceedings, is as to how and in which manner, the plaintiffs have become entitled to recover possession of the suit property. In view of the above, this Court finds that following substantial questions of law have arisen for consideration of this Court :-
(1) Whether the appellant holds possession of the disputed land as mortgagee ?
(2) Whether the suit for declaration and possession on the basis of the judgment and decree passed in earlier proceedings, especially in Civil Appeal No.63 of 1979 was maintainable in absence of the prayer for redemption of the mortgage of the suit property ? And whether learned Appellate Judge was justified in allowing the appeal in such suit ?
10. On the above substantial question of law, I have heard learned advocates for the parties.
11. Learned advocate Mr. Vora for the appellant submitted that there was no dispute in earlier proceedings nor in the present proceedings that the appellant holds possession of the property as mortgagee under writing Exh.36. He submitted that earlier the suit was filed by the present appellant to get declaration in respect of Survey No.82 to the effect that the appellant had become absolute owner of the entire Survey No.82 by virtue of the writing Exh.36. However, in the said suit filed by the appellant, the finding was only to the effect that the appellant had not become owner of the property in question but there was no issue or controversy as regards the right of the appellant as mortgagee. Mr. Vora submitted that in fact, in the proceedings of earlier appeal, at the instance of the very plaintiffs, learned Appellant Court had observed that the present appellant was holding property as mortgagee. However, in that appeal, since the issue in respect of the possession of the property was not involved, the Appellate Court in the said appeal had kept it open to the plaintiffs to take appropriate legal proceedings for the purpose of recovery of the possession from the appellant but this however, does not mean that the plaintiffs are entitled to file a simple suit for recovery of the possession without praying for redemption of the mortgage. Mr. Vora submitted that when the appellant is holding the disputed land as mortgagee, she becomes entitled to hold and continue with the possession of the suit property till the mortgage is redeemed. He therefore, submitted that the possession of the appellant cannot be in any manner said to be illegal or unauthorized possession.
12. Learned advocate Mr. Vora submitted that under the writing at Exh.36, the appellant is entitled to get back the amount which was paid by her husband while getting writing at Exh.36 executed, wherein it is clearly stated that the disputed property was given in mortgage to the husband of the appellant by taking Rs.3,000/- from the husband of the appellant. Mr. Vora submitted that unless such amount is given back to the appellant by the plaintiffs for redemption of the mortgage, the plaintiffs would not be entitled to recover the possession from the appellant. He thus, submitted that simple suit of the plaintiffs for recovery of the possession of the disputed property from the appellant without praying for redemption of the mortgage and without either depositing or paying the mortgage amount to the appellant is not maintainable and when the suit itself was not maintainable, the Court below was not justified in passing any decree for recovery of the possession against the appellant. Mr. Vora also submitted that learned Trial Judge has not committed any error in holding that the suit of the plaintiffs was otherwise time barred because the plaintiffs knew that the plaintiffs had become owner of the property by virtue of the sale deed date d 10.2.1972, still the plaintiffs chose not to file suit for recovery of the possession till 1983 and he, therefore, submitted that even if the suit is held to be maintainable, then also since the suit was not filed within the prescribed time of three years, for recovery of the possession, in such suit, no relief could have been granted by the learned Appellate Judge and the learned Appellate Judge has thus committed an error in holding that the suit of the plaintiffs was within time limit. He thus submitted to allow this appeal on the above substantial question of law and restore the judgment and decree passed by the learned Trial Judge.
13. As against the above said arguments advanced by learned advocate Mr. Vora, learned advocate Mr. Tanuja Kachchhi for the respondents submitted that the suit of the plaintiff was in proper form and the plaintiffs were not required to pray for redemption of the mortgage. She submitted that the plaintiffs had already become entitled to file suit for recovery of the possession from the defendant by virtue of the decree passed in earlier proceedings. She submitted that in earlier Court proceedings, the Court had already held that the present appellant is not entitled to hold and retain the possession of the disputed land. She submitted that the suit of the present appellant was dismissed and in fact, declaration was made in favour of the plaintiffs that the plaintiffs have become absolute owner of the disputed land. Only thing which was required to be done, as per the earlier judgment and decree, was to file simple suit for recovery of the possession from the plaintiffs. She, therefore, submitted that non-making of any prayer for redemption of the mortgage while praying for recovery of the possession of the suit land would not non-suit the plaintiffs, especially when the plaintiffs were already held to be the owner of the suit land. As regards the issue of limitation, she submitted that the Appellate Court has rightly observed that the plaintiffs could not have filed suit for recovery of the possession against the appellant because there was already injunction against the plaintiffs in the earlier proceedings and till the earlier proceedings were concluded, the plaintiffs were not entitled to file any suit and therefore, the plaintiffs have rightly not filed any suit for recovery of the suit. The present suit was filed by the plaintiffs for recovery of the possession within the prescribed time limit of three years after the earlier proceedings were terminated in favour of the plaintiffs. She, therefore, submitted that learned Appellate Judge has rightly held that the suit of the plaintiffs was within the time limit. As regards writing Exh.36 is concerned, learned advocate for the respondents submitted that the said writing was subject matter of earlier proceedings and it was held that the defendant has not become owner of the suit property and it was further held that the defendant's possession was unauthorized possession and not as owner of the suit land. She, therefore, submitted that since the plaintiffs are owners of the suit land, only relief, which the plaintiffs could have asked for, as per the decision of the earlier proceedings, was for recovery of possession of the suit land. She, therefore, submitted that the suit of the plaintiffs was in proper form and therefore, the learned Appellate Judge has not committed any error in holding that the plaintiffs have become entitled to recover one-half portion of the land of Survey No.82, and also rightly declared the possession of the appellant as illegal.
14. Having heard learned advocates for the parties and having perused the judgment and decree passed by the Courts below as well as the judgment and decree passed in earlier proceedings with records and proceedings available to the Court in respect of the present proceedings, it appears that writing Exh.36 was a writing of mortgage. Terms of the said writing clearly reveal that one-half portion of Survey No.82 was held by the husband of the appellant as owner and remaining one-half of Survey No.82 was handed over to the husband of the appellant by his brother as mortgage by taking mortgage amount of Rs,3,000/- from him. The relevant terms of writing Exh.36 are as under:-
“The land came in my share. Possession is with you. I have taken Rs.3,000/- from you till now. You are still to give Rs.2,000/- to me by coming Diwali. I can get this land back from you by paying Rs.5,000/- to you and as and when I give this amount to you, I will get back the land and I will not sell the land to anybody till such time and on payment of such amount, you will release the land to me.”
15. The above writing Exh.36 clearly depict that the possession of the land was given and allowed to be retained by the husband of the appellant by taking Rs.3,000/- and thereafter Rs.2,000/- and it was provided that on repayment of such amount, the suit land was to be given back to the original owner, who was brother of the husband of the appellant. Such transaction between the parties could neither be said to be 'agreement to sell' nor 'sale', but the same was clearly the transaction of mortgage. It is required to be noted that in earlier proceedings, the Appellate Court had also observed that, at the best, the possession of the appellant could be said to be of mortgagee. Therefore, the appellant held and continued to hold possession of the disputed land under writing Exh.36 as mortgagee. The first substantial question of law is thus answered accordingly. As held by the Hon'ble Supreme Court in the case of Sardar Govindrao Mahadik and Another Vs. Devi Sahai and others reported in (1982)1 SCC 237, if land is held by mortgagee, doctrine of part performance, as per Section 53-A of the Transfer of Property Act, is not applicable. Therefore, as stated earlier, substantial question of law, as formulated while admitting the appeal, is not called for consideration.
16. However, the question would still remain to be considered as to whether the the suit of the present nature would be maintainable against the appellant when the appellant has been holding the possession of the property as mortgagee. For answering question No.(2), following proved facts are relevant:-
16.1. That by purchasing the suit land, the plaintiffs had stepped in the shoes of the mortgagor. In the earlier suit, the claim of the appellant to have become absolute owner of the entire land bearing Survey No.82 was refused. Still however, the Courts below in those proceedings recognized the possession of the suit land of the appellant and it was observed that the plaintiffs can recover possession of the suit land from the appellant by due course of law. In that proceedings, there was no such issue as to whether the plaintiffs were entitled to recover the possession from the appellant by simple suit for recovery of possession or by suit for redemption of mortgage. Simply because in the earlier proceedings, the appellant was not held to be owner of the disputed land as claimed by her, it would not debar the appellant to retain the possession of the suit land as a mortgagee till such mortgage is redeemed on payment of mortgage amount to the appellant. In the earlier proceedings, learned Trial Judge has clearly observed that the continuous possession of the dispute land of the plaintiffs is corroborated by recital of unregistered mortgage deed, which was exhibited in earlier proceedings as Exh.213, presently as Exh.36. The said finding of the Trial Court was also confirmed in the appeal.
17. At this stage, reference to the following judgments of the Hon'ble Supreme Court is required to be made.
17.1. In the case of Virendra Nath, through P.A. Holder R.R. Gupta Vs. Mohd. Jamil and others reported in 2004(6)SCC 140. The Hon'ble Supreme Court has observed that, 'even though mortgage was not by registered instrument, the mortgagor has no right in law to eject the mortgagee until the mortgage is redeemed'. Though the facts in the said case were concerning the claim as regards acquiring of title by adverse possession, but such claim was examined by the Hon'ble Supreme Court in the context of possession of mortgagee.
17.2. As per the above law laid down by the Hon'ble Supreme Court, even if the mortgage is not registered, still the mortgagee in possession on the basis of such unregistered mortgage deed is entitled to hold and continue with possession till the mortgage is redeemed. Therefore, possession from such mortgagee could be recovered only by filing suit for redemption of the mortgage.
18. In light of the above-settled principles of law, if we look at the claim in the suit filed by the plaintiffs, the plaintiffs have actually claimed for possession of the suit land on the ground that on the basis of writing dated 7.3.1969, the appellant is not entitled to hold possession legally and therefore, the possession of the appellant is unauthorized and illegal. Such claim is based on the document of sale deed 10.2.1972. Thus, ultimate relief asked for in the suit is to get the possession of suit land from the appellant. The suit is not for redemption of the mortgage. Therefore, in my view, even if the plaintiffs have become owner of the suit land, the plaintiffs have just stepped in the shoes of the mortgagor and the appellant would be entitled to hold and continue with possession of the suit land till the plaintiffs pay up the mortgage amount to the appellant and redeem the mortgage. Such is not the suit filed by the plaintiffs and therefore, in my view, the suit of the present nature of the plaintiffs is not maintainable and therefore, in the present suit, the Appellate Court was not justified to hold the plaintiffs entitled to recover possession of the suit land and to declare the possession of the appellant as illegal. The possession of the appellant was continued to be one under writing of mortgage Exh.36 so long as the plaintiffs are permitted to recover possession of the suit land from the appellant after following due procedure of law and the due procedure of law would be only of filing suit for redemption of mortgage against the appellant. Thus, both the substantial questions of law are answered accordingly and the ultimate result would be that the judgment and decree passed by the Appellate Court below would not stand scrutiny of law and thus required to be quashed and set aside.
19. Accordingly, the appeal is allowed. Judgment and decree passed by the lower Appellate Court in Civil Regular Appeal No.15 of 1986 is quashed and set aside and the judgment and decree passed by the learned Trial Judge is restored.
20. Record and Proceedings be sent back to the concerned Trial Court.
omkar Sd/-
(C.L. SONI, J.)