ISHAR DASS Vs. ARJAN SINGH AND OTHERS

JUDGEMENT

(1.) This second appeal against the judgment and decree of the learned District Judge of Ferozepore has arisen out of a suit instituted by Arjan and six others, plaintiffs, all sons of Bhup Singh for possession of the land forming khewat No. 1424, Khatauni No. 3997, khasra Nos. 1547 and 1548, reference jamabandi years 1943-44 by redemption on payment of Rs. 4,000/- to Ishar Das defendant-appellant. The plaintiffs along with their mother Smt. Bholi (who) had died before the institution of the suit, by a registered deed dated 31st January, 1950, Exhibit D. 1, mortgaged with possession land comprising Khasra Nos. 1447 and 1448 for a sum of Rs. 4,000/- in favour of Ishar Das. The mortgagee was to account for the produce towards interest on the principal amount and in addition was also entitled to receive Rs. 300/- as interest. He was also required to build a wall arround the land, the cost of which was to be added to the mortgage money. The plaintiffs alleged that clause for payment of the sum of Rs. 300/- per annum was penal and thus not enforceable under the law. The defendant pleaded that the plaintiffs had previously put in an application before the Collector, Moga, for redemption of the mortgage under the provision of Redemption of Mortgages Act which was dismissed by him on 29th January, 1961, vide Exhibit D.2, that the suit was lodged after the expiry of a period of one year from this date and therefore, it was barred by time. He also mentioned about the sale of 7 kanals and 1 marla of land out of the mortgaged land for sum of Rs. 17,500/- in his favour, the mutation of which Exhibit D.4 was sanctioned by the Revenue Officer and consequently explained that the plaintiffs at the best could claim possession of the remaining area of the mortgaged land by redemption. He also averred that Rs. 850/- were spent by him on constructing the boundary wall and in terms of the mortgage deed he was entitled to claim the same and further that he was also entitled to receive Rs. 300/- per annum as interest in addition to the produce of the land and that the term in the mortgage deed relating thereto was not penal.

(2.) On payment of Rs. 5,220/- against the defendant, the mortgage amount was made payable by or on 30th November, 1963. The parties were left to bear their own costs. Ishar Das defendant went in appeal against the above. The plaintiffs also filed cross-objections claiming costs of the suit in the original Court. The District Judge dismissed both the appeal and the cross-objections. The appellants were also allowed costs in the appeal. The defendant has impugned the correctness and propriety of the judgment and decree of the first appellant Court. His learned counsel strenuously contended that the suit was barred by time, that the defendant did construct a compound wall and was entitled to claim Rs. 850/- as costs thereof and that he was entitled to claim Rs. 300/- per annum as interest in addition to the produce of the land.

(3.) There is no dispute about the fact that Sardara Singh one of the mortgagors filed an application under the provision of Redemption of Mortgages Act before the Collector, Moga, for redemption of 7 kanals 11 marlas of land comprising khasra Nos. 1447 and 1448 situate in village Moga. This was dismissed on 9th January, 1061. The present suit was filed on 16th April, 1962 evidently more than one year after the order of the Collector. It is also cannot be disputed that in the mortgage deed, Exhibit D.1 also, the khasra Nos. of the mortgaged land have been given as 1447 and 1448. The present suit has been filed for redemption of the land forming khasra No. 1547 and 1548. The mortgagors after the dismissal of Sardara Singh's petition by the Collector instituted a suit for declaration that by mortgage deed, Exhibit D.1 khasra Nos. 1447 and 1448 had been mortgaged and not khasra Nos. 1547 and 1548. The defendant resisted the suit which was dismissed on 23rd February, 1962. The learned Subordinate Judge from these facts inferred that since the identity of the land forming subject-matter of the proceedings before the Collector was different from the land now in dispute hence the suit was not barred by time because the order of the Collector, Exhibit D.2 had no bearing on it. The learned counsel for the appellant maintained that although the Khasra Nos. of the land given in the application put in by Sardara Singh were shown as 1447 and 1448 but in reality it related to the present land in dispute. I am not inclined to agree with him. If the plaintiffs had rest contended with the order of the Collector Exhibit D.2 and not filed a suit for a declaration that land forming Khasra Nos. 1447 and 1448 was mortgaged by them and not land forming khasra Nos. 1547 and 1548, the arguments advanced by the learned counsel would have some weight. It appears that Sardara Singh when filling his petition before the Collector meant to redeem the land forming Khasra Nos. 1447 and 1448. The learned Subordinate Judge's canclusions form the proved facts of the case were unexceptionable. Further, the learned counsel for the respondents-mortgagors urged that the order passed by the learned Collector, copy Exhibit D.2, if freely interpreted would mean that he refused to grant any relief in the Civil Court. According to him there was no necessity for the mortgagors to get the order of the Collector set aside before claiming redemption of the land because it was innocuous and did not stand in their way. He relied on Dewan Chand v. Raghbir Singh and others,1965 CurLJ 633, were the plaintiff had applied for redemption of his land under the Redemption of Mortgages Act. The Collector while dismissing the application for redemption said that questions arising in the case were too complicated to be decided by him and that they should be decided in the civil Court. The plaintiff brought a suit for possession in a Civil Court. It was held that the suit was not brought to get rid of the Collector's orders within the scope of Section 12 of the Redemption of Mortgages Act and therefore Article 14 of the Limitation Act was not applicable. The learned Judges in the above, reviewed the decisions given previously on this point in cases, Asa Ram v. Darba Mal, 1929 AIR(Lah) 513, Gangu v. Maharaj Das,1934 ILR 16, Prabhu Mal v. Chandan, 1938 AIR(Lah) 638, Tulsi Das v. Diala Ram, 1943 AIR(Lah) 176, for which detailed reference is not necessary here.