PHULI Vs. BHAG SINGH

JUDGEMENT

(1.) This revision petition bas been filed by Smt. phulli and two others against the judgment dated August 3, 1982 of the learned Additional District Judge, Kurukshetra, whereby he allowed the appeal filed by the opposite side and restrained the defendant-petitioners from dispossessing the plaintiff- respondent, from the suit land till the decision of the suit. Bhag Singh. and others filed a suit challenging the validity of the orders dated September 22, 1981 of the Collector extinguishing the mortgage made by the predecessor-ininterest of the petitioners and orders dated February 19, 1982 of the Commissioner rejecting the appeal against that order on the ground that the Revenue Authorities had no jurisdiction to pass the orders because the mortgage did not subsist on the day the application for restitution had been made. The predecessors-in-interest of the defendants had mortgaged with possession the suit land with the predecessor-in-interest of the plaintiffs before June 8, 1901, The defendants or their predecessors-in-interest had not got the land redeemed and with the afflux of time, the plaintiffs had become its owners long before 1980 when the application for restitution under Section 4 of the Punjab Restitution of Mortgaged Lands Act, 1938 (for short 'the Act') was filed. Along with the plaint, an application under Rules 1 and 2 of Order 39 of the Civil Procedure Code was filed for issuance a an injunction, restraining the defendants from taking possession of the suit land. Defendants appeared. They filed written statements in the suit and inter alia took up an objection that the Civil Court had no jurisdiction, though they put in a reply to the application for stay. After hearing the learned counsel fox the parties, the learned trial Judge came to the conclusion that Section 12 of the Act created a bar to the Civil Court entertaining and trying a suit regarding any claim to enforce a right under a mortgage declared extinguished under the Act or to question the validity of any proceedings under the Act. He rejected the application for issuance of an injunction. The plaintiffs went up in appeal. The learned Additional District Judge accepted the appeal and set aside the order of the learned trial Judge and allowed the application of the plaintiffs and issued an injunction restraining the defendants from dispossessing the plaintiffs from the suit land during the pendency of the suit.

(2.) Shri Gurdial Singh the learned counsel for the petitioners, argued that the Act was enacted as a measure of metal justice. It is apparent from the aims and objects of the Act that certain mortgages entered into before June 8 1901, the date on which the Punjab Land Preservation Act, 1900, come into force, were still in existence in spite of the fact that the mortgage money had been realised many times over from the profits of the land. This legislative measure was introduced to make a provision for the termination of such mortgages on payment of reasonable compensation when necessary and for the restitution of the possession of the land mortgages. This legislative measure should receive liberal interpretation at the hands of Courts.

(3.) A brief survey of the different provisions of the Act which determine the controversy raised in this revision petition:--Section 2 of the Act provides that notwithstanding anything contained in any enactment for the time-being in force, the Act will apply to any subsisting mortgage of land, which was effected prior to June 8, 1901. Section 3 thereof defines certain expressions used in the Act. Section 4 lays down the procedure for making an application of possession of the land mortgaged. Under Section 5 of the Act, on receipt of an application under Section 4 thereof the Collector has, after such inquiry, as may be prescribed by the rules, to record an order in writing, with reasons stating whether the mortgage in question is one to which the Act applies. Section 6 of the Act empowers the Collector to dismiss the application if he finds that the mortgage regarding the possession of which restitution is sought is not the one to which the Act applies. Under Section 7 of the Act, if the Collector comes to a finding that the mortgage is one to which the Act applies and that the value of benefits enjoyed by the mortgagee while in possession equal or exceed twice the amount of principal sum originally advanced under the mortgage, he shall make an order in writing that the mortgage be extinguished and if the mortgagee is still in possession, the mortgagor be put into possession of toe mortgaged land as against the mortgagee and that the title deeds, if any, be restored to the mortgagor. Sub-section (2) of this section does not concern us in this case. Section 10 provides for an appeal from an original or appellate order to the Commissioner when the order is made by the Collector and to the Financial Commissioner when the order is made by a Commissioner. By Section 10-A of the Act, the Financial Commissioner has been invested with powers of revision. Section 11 of the Act provides the period for limitation for filing the appeals. Section 12 of the Act, which is material for the purposes of this case is reproduced in extenso:--