BALKAR SINGH Vs. PIARU

JUDGEMENT

(1.) Balkar Singh, defendant-appellant, sold some of his land vide sale deed dated 25th January, 1964 (Exhibit P.1) for a sum of Rs. 1500/- in favour of the plaintiff-respondent. This land along with some other land was lying mortgaged with one Gian Chand. Out of the sale consideration, plaintiff Piaru retained Rs. 412.50 for purposes of redeeming the land from Gian Chand the previous mortgagee. Later, on March 12, 1965, Piaru plaintiff filed an application under Punjab Redemption of Mortgages Act in the Court of Collector, Gurdaspur. This application was, however, dismissed by the Collector on November 13, 1967 for two reasons - firstly, that the mortgage in question was not subsisting and secondly, the petitioner could not redeem the land piecemeal. Thus, the plaintiff obviously could not take possession of the land as the same was already in possession of Gian Chand, mortgagee. As the sale deed Exhibit P.1 contained an agreement to the effect that in case the vendee, i.e., the plaintiff either could not take possession of the land sold on account of any legal or factual defect in the title of the vendor, or he lost the possession of the land on any account, then the vendee would be entitled to be compensated in the manner that he would be entitled to take possession of any equivalent area from the holding of the vendor according to his (vendee's) choice. Depending on this part of the agreement in the sale deed, the plaintiff filed the present suit for possession of 7 Kanals 19 marlas of land. After recording the evidence and hearing the learned counsel for the parties on either side, the trial Court decreed the suit. In appeal by the defendant Balkar Singh, the lower Appellate Court, however, modified the decree to the extent that instead of 7 kanals 19 marlas of land the plaintiff-respondent was entitled to 3 kanals and 16 marlas only. This was done on the basis of valuation of the two areas, i.e., the one sold vide Exhibit P.1 and the other claimed by the plaintiff in his plaint, as deposed to by the Patwari Halqa whose statement was recorded by the District Judge as a result of an application under Order 41, Rule 17 of the Code of Civil Procedure at the instance of the defendant, Balkar Singh.

(2.) The learned counsel for the appellant now vehemently contends that as per the contents of the agreement contained in the sale deed, Exhibit P.1 the respondent plaintiff is not entitled to the possession of the land for which a decree has been granted to him. The relevant part of this sale deed reads as follows :-

(3.) After hearing the learned counsel for the parties I find it difficult to accept the contention of the learned counsel for the appellant. It is well established on record that the move made by the respondent plaintiff under the Punjab Redemption of Mortgages Act, 1913, remained unsuccessful. As already pointed out, the land in question was held to be unredeemable for the reason that there was no subsisting mortgage and also for the reason that the plaintiff could not seek partial redemption. The finding of the competent authority that the redemption was not redeemable clearly points out the defect in the title of the vendor, that is, the appellant. His learned counsel, however, urges with some force that since this fact was known to the vendee, the latter now cannot plead that he was not aware of this defect in the title of the vendor or this is the defect of the type which was contemplated by the parties while executing Exhibit P.1 only. The factum that the land was under mortgage with Gian Chand was of course known to the vendee but the act that the land cannot be redeemed by him as there was no subsisting mortgage, to my mind, cannot be anything else than the defect in the title of the vendor. Further, I find that the plaintiff-respondent was entitled to succeed as he has rightly succeeded on the basis of the statement of the appellant himself. He as D.W. 3 has stated in no uncertain terms that at the time of the sale Exhibit P.1, the land in question was under tenants and on his asking the said tenants had attorned to the vendee-respondent. In fact these tenants surrendered the possession to the respondent. At a later stage, according to him, Gian Chand mortgagee forcibly took possession of the land from the plaintiff. If this position is factually correct, and I find no reason to disbelieve this, then the vendee had been put in possession of the property and he lost the same on account of the better title of the mortgagee. This too would fall within the first condition of the agreement as reproduced above. The contention of the learned counsel that the mortgagee had dispossessed the respondent through force and on that basis it cannot possibly be held that the vendee lost possession of the suit land on account of any factual or legal defect in the title, to my mind, is not correct. The possession was taken by the mortgagee on account of his better or superior claim to it. The vendee respondent obviously was not obliged either to commit criminal acts or to get involved in criminal litigation. Had it been a case that he was dispossessed by a person who had no title to the land, then the learned counsel for the appellant may be right in making the submission but if the mortgagee had a better right as he had to take possession of the property and the vendee respondent was deprived of the possession in recognisation of that right, then obviously the dispossession of the vendee is covered by the above noted first condition of the agreement, that is, he lost possession of the property on account of the factual and legal defect in the title of the plaintiff.