CHUNNIA Vs. KESHRI MAL

JUDGEMENT

(1.) THIS is a writ petition filed by the Chunnia and Mingu against Keshri Mal and others under Article 226 of the Constitution of India for issuance of an appropriate writ, order or direction in the nature of certiorari for quashing or setting aside the orders marked Annexures 2, 3 and 4 and for decreeing the suit of the petitioners for possession of the land in dispute as well as mesne profits,

(2.) THE relevant facts giving rise to this writ petition may be briefly stated as follows : The petitioners vide registered sale deed dated February 6, 1962, purchased agricultural land including land comprised in Khasra No. 247 measuring 4 Bighas and 13 Biswas situated at village Malawada from Dhula and Moda Meenas, who were members of Scheduled tribes. The land comprised in Khasra No. 247 had been mortgaged with possession by Dhula and Moda, vendors to non petitioner No. 1 Keshri Mal and so a right to ledeed the mortgaged -land was given to the purchasers, i.e. the petitioners at the time of execution of the sale -deed. Accordingly, the petitioners tendered mortgage money to Keshri Mal non -petitioner No. 1, but the latter refused to accept it. Hence, a notice was served on him on May 29, 1971 but inspite of written notice Keshri Mal did not accept the money and deliver the possession to the petitioner. The petitioners, therefore, instituted a suit for possession and mesne profits against Keshri Mal in the court of the Assistant Collector, Niinbahera In this suit Sheo Raj (now deceased) and his son Ghisa Lal were also impleaded as derendant3 because these persons were in actual possession of the disputed land at the time of filing of the suit. The Assistant Collector, after framing issues and recording the evidence of the parties decreed, the suit on July 30, 1976 and in pursuance of the decree, the petitioners got possession of the land in dispute on August 20, 1976. The legal representatives of Sheo Ram and his son Ghisa Lal, however, preferred an appeal before the Revenue Appellate Authority, Udaipur against, the judgment and decree of the Assistant Collector, Nimbahera, dated July 30, 1976, The Revenue Appellate Authority framed an additional issue regarding limitation on December 1, 1977 and remitted that issue to the Assistant Collector, Nimbahera, for giving his finding thereon. The Assistant Collector, thereupon, gave his finding on the issue of limitation against the petitioners and the Revenue Appellate Authority accepted the finding and dismissed the suit of the petitioner on the ground that it was barred by time. Aggrieved by the judgment of the Revenue Appellate Authority, the petitioners filed a second appeal in the Board of Revenue for Rajasthan, Ajmer. The Board of Revenue, Ajmer, vide its judgment dated January 21, 1981, summarily dismissed the appeal. Ghisa Lal and other non -petitioners, thereafter, obtained possession of the land under controversy by way of filing an application for restitution. Hence, the petitioners, being aggrieved by the judgments marked Annexures 2, 3 and 4, have invoked extraordinary jurisdiction of this Court by way of this writ petition.

(3.) IT has been strenuously urged before us by Mr. M.M. Singhvi, learned Council for the petitioners, that the Assistant Collector, Revenue Appellate Authority and finally the Board of Revenue for Rajasthan committed an error apparent on the face of the record in dismissing the suit of the petitioners for possession of the land in dispute and mesne profits on the ground that it was barred by limitation. According to the submission of Mr. M.M. Singhvi the limitation prescribed by the Law of Limitation in the former State of Mewar for filing such a suit was 60 years, and, as the land was mortgaged with possession with Keshri Mal by Dhula and Mod a in Samvat year 1986, the period for filing a suit for redemption of the mortgage was upto Samvat year 2046 and the suit filed in the year 1972 was clearly within limitation, The above contention has no force, because under the Law of Limitation in the former State of Mewar a suit for redemption on the basis of a registered mortgage deed could be filed within 60 years from the date when the cause of action accrued, but, if such a suit was based on an unregistered mortgage deed, the limitation for filing suit for redemption was 15 years from the date when the cause of action accrued. In the instant case, the petitioners could not succeed in showing that the land in dispute was mortgaged with possession to Keshri Mal in Samvat year 1986 by way of a registered mortgage -deed. It appears, on the other hand, that the mortgage deed was not even produced by Keshri Mal in the revenue courts, nor any copy thereof was brought on the record by the petitioners. If the mortgage deed was a registered one, the petitioners ought to have produced certified copy thereof in the revenue courts or should have called upon the mortgagee to produce the original and, in case, the mortgagee declined to produce it, the petitioners should have led secondary evidence to prove the fact that it had been duly registered. In the absence of any evidence that the mortgage deed was a registered one, the revenue courts rightly held that the period of limitation for a suit for redemption based on an unregistered mortgage deed was 15 years from the date of accrual of the cause r faction under the Law of Limitation in former State of Mewar In this view of the matter, the petitioner's suit for possession of the land in dispute with mesne profits could be filed upto Samvat year 2001, i.e. within 15 years from Samvat year 1986 in which year the land was mortgaged with possession to Keshri Mal by the mortgagors. As the petitioners admittedly instituted the suit in the year 1972, it was clearly barred by time because of having been filed beyond 15 years.