GURDEV SINGH Vs. PARTAPA

JUDGEMENT

(1.) The facts giving rise to the litigation out of which this second appeal has arisen are as follows. One Partapa mortgaged certain land with Gauhar Singh and Mehar Singh on 21-8-1919. The mortgage was of simple nature but it appears that according to one of the conditions the mortgagees were entitled to take possession on the happening of certain contingencies. Taking advantage of this condition Gauhar Singh and Mehar Singh brought a suit for possession of the mortgaged property and obtained a decree on 20-1-1932. They made sevearal efforts to obtain possession in execution of the mortgage decree but for reasons into which it is not necessary to go here, they failed in this. The last execution application was made by Gauhar Singh on 19-1-1944. The Sub-Judge, in whose Court it was filed, returned it for presentation to the proper Court on the ground that he had no jurisdiction to entertain it. After that Gauhar Singh made another application to the District Judge, who sent it for disposal to Sheikh Maqbul Ahmad, Sub-Judge, on 21-1-1944. On 2-2-1944, Sheikh Maqbul Ahmed issued a warrant for possession of the land and adjourned the case to 11-8-1944. On that day Gauhar Singh was absent and the execution application was dismissed in default. He made an application for restoration of his previous application on the same day but before the application could be restored or in fact any order could be passed thereon, Gauhar Singh appeared in Court on 13-5-1944, and stated that he did not wish to proceed with the application because he had possession of the land. It may here be mentioned that consolidation of holdings took place in the village in which the above mentioned land was situate and Rai Singh, who was all along in the possession of the land, was allotted certain other land in lieu of it. It is alleged that the Girdawar Kanugo to whom the warrant of possession issued under the orders of Sh. Maqbul Ahmad had been sent for execution, went to Partapa's village on 23-4-1944, accompanied by a Patwari and awarded to the decree-holder the possession of the land which partapa had obtained by virtue of consolidation of holdings and not the land which he had originally mortgaged to Gauhar Singh and Mehar Singh and about which they had obtained the decree. The Girdawar and the Patwari also made a report in respect of the delivery of possession to Gauhar Singh and Mehar Singh. Relying upon this report Gauhar Singh and Mehar Singh had a mutatation entered by the Patwari showing them as mortgagees in possession of the land. On this Partapa instituted the present suit for a declaration. The lanu which is the subject-matter of the suit is the one which had come to his share in the consolidation of holdings and to which related the mutation, Partapa a allegations were that though he had mortgaged this land with Gauhar Singh and Mehar, Singh and though, they had obtained a decree for possession in respect thereof, they had lost all right to it, because the possession of the land had always remained with him and Gauhar Singh and Mehar Singh did not obtain possession by execution of their decree within twelve years of the date thereof. He denied that the decree-holders were ever put in possession of the land and maintained that the possession was still with him. He further contended that the delivery of possession to the decree-holders even if it took place on 23-4-1944 was illegal and ineffective, inasmuch as the twelve years period fixed by law for execution of the decree had expired by then and the last application for execution which Gauhar Singh had made had been dismissed and no proceedings were pending at that time. No reference was made in the plaint to the proceeding relating to the consolidation of the holding and obviously the statement of fact contained therein that it was the suit land that had been mortgaged by the plaintiff (Partapa) to the defendants (Gauhar Singh and Mehar Singh) and the decree in the latters favour had been passed in respect of that land was incorrect. The defendants resisted the suit mainly on the grounds (1) that the plaintiff not being in actual possession of the suit land could not maintain an action for mere declaration and (2) that possession had been awarded to them by Girdwar Kanugo and the Patwari in execution of the warrant which had been validly issued by Sh. Maqbul Ahmad and consequently no question of limitation arose. So far as the wrong statements of fact made in the plaint and mentioned above are concerned, the defendants appeared to have taken no notice of them. On the other hand, they too stated in so many words, in their written statements that the mortgage as well as the decree obtained by them against Partapa in the previous case related to the suit land. The following issues were raised by the trial Court: 1. Did defendants get legal possession of the land in dispute in pursuance of their decree and if not (what is?) its effect? 2. If issue No. 1 is proved, then whether plaintiff, can challenge the mutation proceedings? 3. Is plaintiff in possession and consequently he can sue for a declaration?

(2.) All the three issues were found for the plaintiff and the suit was decreed. The defendants after having unsuccessfully appealed to the District Judge have now preferred this second appeal.

(3.) The trial Court in its final judgment has oaken due notice of the fact that the suit land was not the subject-matter of the mortgage and the decree obtained by Gauhar Singh and Mehar Singh did not relate to it. But it appears that the mistakes on the questions of fact under which both the parties laboured and which were incorporated in their pleadings were not detected till the Patwari came into the witness-box and proved the report regarding the delivery of possession (Ex. D- 1). The reason why the mistakes did not come to light at the time the issues were framed evidently was that the trial Court did not take the trouble of examining the parties. Had it done so and interrogated the parties on the principal questions involved, as it was its duty to do, I have no doubt that the plaintiff as well as the defendants would then have explained the real position. The pity of it is that even when the Patwari made the statement, the trial Sub-Judge recorded it more or less like a machine and without trying to understand what the real position was. A mere perusal of Ex. D-l makes it clear that the numbers of fields mentioned in the decree-sheet with which the warrant of pos-session was accompanied were of the fields, which were the property of Partapa before the consolidation of holdings but the fields of which possession was delivered to the decree-holders were those that he had got by virtue of consolidation of holdings. It goes without saying that at the time the Patwari gave the evidence, Ex. D-1 must have been before the Court. In fact, the Patwari's evidence related to this document and to what was contained therein and yet the trial Sub-Judge while taking down the Patwari's statement recorded these words: A warrant for possession of the land in dispute was received from a Civil Court by the Girdawar Kanugo and possession was to be delivered to defendants. Prom what I have said above and from what is contained in Ex. D-1, it is clear that the warrant of possession did not relate to the land in dispute. It related, and could only relate, to the land which Partapa had mortgaged with Gauhar Singh and Mehar Singh and about which they had been granted the decree. Had the trial Sub-Judge taken an intelligent interest in the proceedings of the case, he would never have recorded this statement and much of the confusion which resulted therein would have been avoided.