SIS RAM Vs. SUKH LAL

JUDGEMENT

(1.) THE plaintiff-appellant has filed this appeal against the judgment and decree of the Additional District Judge, Karnal, dated July 24, 1970, whereby the decree of the trial Court dismissing his suit was maintained.

(2.) THE appellant filed a suit against Sukh Lal and others defendants-respondents, for a declaration to the effect that he had become the owner of one-half share of the suit land and that the sale of a portion of the said land by Shrimati Patori in favour of Sukh Lal, respondent, on June 6, 1968, was not binding on him. It was alleged in the plaint that Data Ram was the original owner of the land and he mortgaged orally the suit land in favour of Jawahra for a sum of Rs. 440/- for which the mutation was sanctioned on Nov. 30, 1903. It was alleged that Data Ram died before 1947, and the appellant, Sukh Lal, respondent, and several others being his heirs, became the mortgagors qua the suit land. It was also alleged that Jawahra mortgagee also died before 1947 and Hardeva and others became the mortgagees being the heirs of Jawahra. The appellant and Sukh Lal, respondent, filed an application in the Court of the Revenue Assistant, Karnal, against the mortgagees for redemption of the mortgage and also deposited Rs. 440/ -. By order of the Revenue Assistant dated May 8, 1947, the redemption was ordered in favour of the appellant and Sukh Lal, respondent. It was further alleged that the share of the mortgagors other than the appellant and Sukh Lal, respondent, came to be mortgaged with them and the possession of the and was also given to them. The mutation was sanctioned in their favour of June 9, 1947. According to the appellant, the mortgage was more than 60 years' old at the time of sale by Shrimati Patori on June 6, 1968. so, he and Sukh Lal, respondent, had become the owners of the land, in suit, in equal shares and Shrimati Patori mortgagor had no right to sell the land inasmuch as she had lost all rights in the land by efflux of time. The sale made by Shrimati Patori mortgagor, to Sukh Lal, respondent, was not binding on him to the extent of one-half share. The suit was contested by the defendants-respondents on various grounds and on the pleadings of the parties, the following two preliminary issues were framed by the trial Court: 1. Whether the person recorded as mortgagors owners of the suit land are not necessary parties in this case ? 2. It being the very case of the plaintiff that the share of mortgagors other than the plaintiff and defendant No. 1 came to be mortgaged with the plaintiff and defendant No. 1 in consequence of the redemption order obtained by them on May 8, 1947, whether the plaintiff can claim extinction of the right of redemption of this mortgage on the ground that the original mortgage by Data Ram was created in the year 1903 ?

(3.) RELIEF. No finding was given on issue No. 1, issue No. 2 was found against the appellant and consequently, his suit was dismissed by the trial Court, his suit was dismissed by the trial Court. In appeal, the finding of the trial Court on issue No. 2 was maintained. Feeling aggrieved against the same, the appellant has come up in second appeal to this Court. 3. According to the findings of the lower appellate Court, the position of the other co-mortgagors was that of co-sharers with the mortgagors who redeemed the mortgage and, therefore, no question of extinction of the right of ownership, by lapse of time, arose in the present case. It was also held that the provisions of S. 92 of the T. P. Act, (hereinafter called the Act) were not altercated to the present case in view in Janardhan Bhagwan Dass v. Sham Lal Nand Lal, AIR 1959 Punj 170, wherein, according to the learned Additional District Judge, it was held that the mortgagor, who has redeemed the whole mortgage, cannot be taken to have been subrogated to all the rights of the original mortgagees. The learned counsel for the appellant contended that both these findings, arrived at by the lower appellate Court, are erroneous, in law, as well as on facts. According to the learned counsel, it has nowhere been held in Janardhan Bhagwan Dass's case (AIR 1959 Punj 170) (supra), that a co-mortgagor who has redeemed the whole mortgage could not be taken to have been subrogated to all the rights of the original mortgagee. Even though the provision of the Act, as such are not applicable, argued the learned counsel, yet the principles of S. 92 of the Act have always been made applicable on the principles of justice, equity and good conscience and, therefore, in equity the appellant and Sukh Lal, respondent, had been subrogees qua the other non-redeeming co-mortgagors and the limitation for redemption qua the non-redeeming co-mortgagors was 60 years from the date of the original mortgage which, in the present case, was in the year 1903. In support of his contention, the learned counsel relied upon Ram Chander v. Prabhu Dayal, AIR 1955 NUC (Punj) 5719. The decision in the said case was given in Regular Second Appeal No. 789 of 1951 decided on Feb, 9, 1955. The learned counsel also relied upon a Full Bench judgment of the Madras High Court in Valliamma v. Sivathanu, AIR 1964 Mad 269, which was later on also affirmed by the Supreme Court in Valliama Champaka Pillai v. Sivathanu Pillai, AIR 1979 SC 1937. On the other hand, the learned counsel for the respondents, submitted that the position of a redeeming co-mortgagor is that of a charge holder. He does not become the mortgagee qua the non-redeeming co-mortgagors. According to the learned counsel, the redeeming co-mortgagor is only entitled to enforce the charge on the mortgaged property and he has no other right qua the non-redeeming co-mortgagors who are co-sharers in the property redeemed earlier. In support of his contention, the learned counsel placed reliance on Mahommad Ali v. Ghulam Nabi, AIR 1936 Lah 290 ; Ganeshi Lal v. Joti Pershad, AIR 1953 SC 1 ; Kedar Lal v. Hari Lal, AIR 1952 SC 47 ; Lakshmi Pilla v. Easwara Pillai, AIR 1977 Ker 148 (FB); Aziz Ahmad Khan v. Chote Lal, AIR 1928 All 241 and Kenchappa v. Rokhade Nagappa, AIR 1957 Mys. 1 (FB ).