KISHAN SINGH Vs. MITHU SINGH

JUDGEMENT

(1.) THIS case came up for hearing before me sitting singly earlier, but since the question involved was not free from difficulty and was likely to arise in many cases, it was thought in the fitness of things that the matter be decided by a larger Bench. It is in these circumstances that this case has come up before this Division Bench.

(2.) THE only point to be determined in this appeal by us is as to whether the order of the Collector (Exhibit P. 4), dt. 20th Aug. 1968, whereby he dismissed on merits the application filed by the plaintiff-mortagagor under S. 4, Redemption of Mortgages (Punjab) Act, 1913 (hereinafter referred to as 'the Act'), holding that the applicant (plaintiff) had failed to prove that he was the mortgagor qua the land, in dispute, was an order without jurisdiction or within jurisdiction. It is not disputed and is a common case of the parties that if the said order of the Collector was within jurisdiction, then the suit must be filed within one year thereof for the setting aside of the said order and in case it is held to be without jurisdiction, then the necessity of getting the same set aside as such did not arise.

(3.) TO recapitulate, the facts are that on 4-6-1923, Bahal Singh mortgaged 37 kanals 10 marlas of land to Harnam Singh (now deceased) for Rs. 440/ -. Mutation in this behalf, Exhibit P. 1, was sanctioned in the name of the said Harnam Singh. After the death of Bahal Singh, the estate was mutated in the name of his widow Shrimati Mallan vide mutation sanctioned on May 29, 1941, copy marked, Exhibit P. 2. The aforesaid Shrimati Mallan made a gift of her share in the joint estate to Mithu Singh vide gift deed dt. Aprl 8, 1958, copy marked, Exhibit D. 1. Thus, the plaintiff Mithu Singh became the mortgagor and Harnam Singh (deceased), the mortgagee. The present suit was filed for possession by way of redemption of the land measuring 36 kanals 8 marlas. The suit was contested inter alia on the ground that the mortgaged land was never gifted by Shrimati Mallan to Mithu Singh, plaintiff, as alleged. It was also pleaded that the plaintiff was estopped from filing the suit because the two applications made by him to the Collector for redemption of the land had been dismissed. It was further pleaded that the suit was barred by limitation. The trial-Court found that since the plaintiff had not filed the suit within one year of the order of the Collector dt. 20-8-1968, Ex. P. 4, the suit was barred by time. It was further found that the plaintiff had not been able to prove that he was the mortgagor, as alleged. Consequently, the plaintiff's suit was dismissed. In appeal, the learned District Judge reversed the said findings of the trial Court and came to the conclusion that the suit was within limitation as the order of the Collector, Ex. P. 4, was without jurisdiction and that no suit was necessary to be filed to set aside the same. The other finding of the trial Court was also reversed as it was held that the plaintiff was a mortgagor, as alleged in the plaint. As a result, the plaintiff's suit was decreed and a preliminary decree under O. XXXIV R. 7, Civil P. C. , was passed. Dissatisfied with the same, the defendant came up in second appeal to this Court.