KAMLI Vs. DHANI RAM

JUDGEMENT

(1.) In 1880 Mst. Indira wife of Baldev is recorded in the revenue papers as occupancy tenant in Khasra No. 154 in the village Sotai Tehsil Ballabgarh. On the 5th of November, 1883 Mst. Indira executed a mortgage deed in favour of Tota Ram by means of which she mortgaged certain pieces of land including Khasra No. 154. The plaintiffs in this case are the successors-in-interest of the mortgagee while the defendants are successors-in-interest of the mortgagor. On 14th April, 1944, the successors-in-interest of the mortgagor made an application before the Special Collector, Gurgaon, under section 4 of the Restitution of Mortgaged Lands Act 4 of 1938 praying for restitution of possession of the mortgaged land. The Collector passed an order under section 7 of the Act extinguishing the mortgage and putting the mortgagors in possession without payment of any redemption money. The plaintiffs thereupon filed the present suit out of which this second appeal arose for a declaration that they had become absolute owners of the land and the proceedings before the Special Collector were ultra vires as on that date there was no mortgage in subsistence. The defendants in reply pleaded that the mortgage was void ab initio as it had been made by a tenant in respect of an occupancy tenancy without the consent of the landlord and, therefore, the suit was not competent. It was further averred in the written statement that the Special Collector had jurisdiction to pass the order that he did not that in any case the mortgage was without consideration and necessity.

(2.) Various other pleas were raised by the defendants which need not be considered in this appeal. On the issues framed the trial Court came to the conclusion that the mortgage in dispute was recorded in the revenue papers in the year 1891-92 and, therefore, there was a subsisting mortgage in 1944 when the application was made before the Special Collector and on this finding the plaintiff's suit was dismissed. On appeal the Senior Sub Judge, Gurgaon, held that the mortgage in question was valid in law from the date it was made and that the right to redeem the mortgage was extinguished after the expiry of 60 years from 5th of November, 1883 and, therefore, an application before the Special Collector on 14th of April, 1944 related to a mortgage which did not at that time subsist. On these findings the appeal was accepted by him and the plaintiff's suit was decreed. The defendants have come to this court in second appeal.

(3.) Shri D.N. Aggarwal, the learned counsel for the appellants has argued before me that the limitation for redeeming the mortgage in the present case would stars only an delivery of possession to the mortgagee and that as possession was delivered to the mortgagee in 1891-92, therefore the application before the Special Collector on 14th April, 1944 related to a subsisting mortgage. There is no force in this contention. The lower appellate Court after going into the circumstances of the case has found that possession was delivered to the mortgagee in 1889 on the date of the mortgage and that being so it cannot be said that the limitation for redemption started from 1891 even if the contention of the learned counsel is accepted. The mortgage deed specifically states that the possession has been delivered to the mortgagee and this statement in the mortgage deed has been accepted by the lower appellate Court.