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Govind S/O Bhagaji (Deceased) by His Heirs Vs. Sk. Rasheed S/O Sk. Hasan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 939 of 1979 with Civil Application No. 4336 of 1970
Judge
Reported in1982(1)BomCR648
ActsTransfer of Property Act, 1882 - Sections 53A and 58; Hyderabad Agricultural Lands Alienation Act, 1939 - Sections 10; Hyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 1; Transfer of Property (Bombay Provision for Uniformity and Amendment) Act, 1959
AppellantGovind S/O Bhagaji (Deceased) by His Heirs
RespondentSk. Rasheed S/O Sk. Hasan and ors.
Appellant AdvocateKarkar and ;A.V. Sawant, Advs.
Respondent AdvocateR.M. Agarwal, Adv. for respondent Nos. 1 to 4
DispositionAppeal dismissed
Excerpt:
.....to believe--commissioner considering extensive information and anonymous petitions and undertaking detailed scrutiny. income tax act 1961 s.132 - 2 in possession of the suit lands who enjoyed usufruct thereof for 20 years......defendant no. 4 put defendant no. 1 and the father of defendant no. 2 in possession of the suit lands who enjoyed usufruct thereof for 20 years.4. when the said period of twenty years was over plaintiff no. 4 and her children plaintiff nos. 1 to 3 filed in the court of civil judge, j.d. sillod a suit being regular civil suit no. 35 of 1970 for redemption and possession of the suit land.5. the defendants in their written statement denied the said mortgage transaction. according to them the said land belonged jointly to the said shaikh hassan husband of plaintiff no. 4 and his brother shaikh bandu and that under the agreement of sale dated 15-12-1948 (15-3-58-f) plaintiff no. 4 and the said shaikh bandu had agreed to sell the said land to defendant no. 1 and father of defendant no......
Judgment:

D.M. Rege, J.

1. This is a second appeal by the original defendants against the order and judgment of the Extra Assistant Judge, Aurangabad dated 15-10-1979, dismissing the defendants appeal being Regular Civil Appeal No. 67 of 1977 against the judgment and order of the learned Civil Judge, J.D., Sillod dated 20-2-1977 whereby he had decreed the plaintiff's suit for redemption and possession of Survey No. 70/1 admeasuring 14 acres 5 gunthas of Modha Kd.

2. The land concerned in this suit is Survey No. 70/1 admeasuring 14 acres and 5 gunthas of village Modha Kd.

3. The said land is half of original Survey No. 70 admeasuring 28 acres and 10 gunthas. According to the plaintiffs initially the said land S.N. 70/1 being half of the original Survey No. 70 belonged to the husband of plaintiff No. 4 and father of the plaintiff Nos. 1 to 3 one Shaikh Hassan who had died in police action in the year 1948. On his death the said land came in possession of plaintiff No. 4. Under a usufruct registered deed of mortgage dated 13-1-1949 (13 Is finder 1358-F) plaintiff No. 4 had mortgaged the said land to defendant No. 1 and his brother the father of defendant No. 2 for consideration of Rs. 1600/- for a period of 20 years. Accordingly under the said deed of mortgage defendant No. 4 put defendant No. 1 and the father of defendant No. 2 in possession of the suit lands who enjoyed usufruct thereof for 20 years.

4. When the said period of twenty years was over plaintiff No. 4 and her children plaintiff Nos. 1 to 3 filed in the Court of Civil Judge, J.D. Sillod a suit being Regular Civil Suit No. 35 of 1970 for redemption and possession of the suit land.

5. The defendants in their written statement denied the said mortgage transaction. According to them the said land belonged jointly to the said Shaikh Hassan husband of plaintiff No. 4 and his brother Shaikh Bandu and that under the agreement of sale dated 15-12-1948 (15-3-58-F) plaintiff No. 4 and the said Shaikh Bandu had agreed to sell the said land to defendant No. 1 and father of defendant No. 2 for a consideration of Rs. 2000/- and that on receipt of the earnest money of Rs. 250/- both of them delivered possession of the suit land to the defendant No. 1. After the execution of the said agreement the remaining balance consideration amount of Rs. 1750/- was paid to Fatmabai, plaintiff No. 4 and the said Shaikh Bandu from time to time and that thus they were paid entire money. According to the defendants although the entire money was paid to plaintiff No. 4 and Bandu no receipts were passed by them to the defendants for the same nor was any registered sale deed executed inspite of the above payments. They, however, contended the they were in actual possession of the suit land not under any mortgage deed by the plaintiff No. 4 but under the said agreement of sale and such their possession was protected under section 53-A of the Transfer of Property Act. They also claimed the ownership of the suit land by adverse possession S.A. The trial Court on the issues raised on the pleadings held that Sk. Hassan, husband of plaintiff No. 4 was the exclusive owner and possessor of the suit land at the time of his death that the suit land was mortgaged by plaintiff No. 4 to defendant No. 1 and the father of defendant No. 2 for a period of 20 years by effecting a registered mortgage deed on 13th In finder 1358 (13th January, 1949), that plaintiff No. 4 was not competent to mortgage the entire piece of land and to the extent of 7/8th share of the suit land the said mortgage deed was void, that the defendants were not the owners of the suit land, that they did not prove that on 15th Beheman 1358-F, plaintiff No. 4 and Bandu had agreed to sell the land to defendant No. 1 for consideration of Rs. 2000/- and had obtained the entire amount as alleged, that plaintiff No. 4 alone was not competent to enter into a contract along with Sk. Bandu in favour of the defendant No. 1 but however it did not have any effect on other co-owners, that the plaintiffs were entitled to recover possession of the suit land by redeeming the mortgage free from any encumbrance without making any payment, that the possession of the defendants was not protected under section 53-A of the Transfer of Property Act and that they were no the owners of the land by adverse possession. The Civil Judge, therefore, decreed the suit.

6. Against the said judgment and order of the trial Court the defendants filed and appeal to the District Court, Aurangabad. The Extra Assistant Judge, District Court, Aurangabad, who heard the said appeal held that the plaintiff No. 4 had executed a mortgage deed in favour of defendant No. 1 and the father of defendant No. 2 and that she alone was competent to deal with the property, that plaintiff No. 4 and the said Sk. Bandu had not agreed to sell the suit land to defendant No. 1 and father of defendant No. 2 and hence no agreement was arrived at between them in respect of sale on 15-3-1939-F. (15-1-1948) as alleged by the defendants, that the Civil Court had jurisdiction to entertain the suit in the form it was filed and that plaintiffs were entitled to possession as prayed for. He wrongly dismissed the said appeal.

7. Against the said judgment and order of the Appellate Court the present appeal has been filed.

8. The main question of law that has been raised by the learned Counsel for the appellant-original defendants is as to the jurisdiction of the Court to entertain and try the suit as framed.

9. According to the learned Counsel the suit being for redemption of usufructum mortgage and possession executed in old Hyderabad State territory, only Taluqdar under section 10 of the Hyderabad Agricultural Lands Alienation Act had jurisdiction in respect thereof.

10. The learned Assistant Judge in appeal has while negativing the said contention pointed out that the jurisdiction of the Taluqdar under the said provisions of the Act depended on the question whether the plaintiff and/or defendant came within the notified agriculturalist class and that the defendants not having produced any material to that effect, it could not be held that the Civil Court had no jurisdiction.

11. As I would presently point out, on the close examination of the provisions of the said Act the same Act were not applicable to the mortgage in this suit.

12. Provisions of section 10(2) of the said Act on which the learned Counsel for the appellant has relied deal with the power of Taluqdar in respect of certain mortgages. It provides :---

Produced and, therefore, it could not be said whether the

Section 10(2):- If a member of an agricultural class has before commencement of this Act made a mortgage of his land with or without a condition intended to operate by way of conditional sale, the Taluqdar shall be competent, on the application of any party, at any time during the currency of the mortgage to take action in the following manner.

Section 3 of the said Act provides :---'The Government shall, by notification in the Jarida determine from time to time, what bodies of persons in any district or districts are to be deemed to be agricultural classes and what agricultural groups are to be included in such classes for the purposes of this Act.'

13. The reading of the said provisions show firstly, that it applied to mortgages executed before the coming into force of the said Act which was some time in 1939. The suit mortgage however was executed on 13-1-1949 i.e. after coming into force of the said Act. Further, to apply the said provisions, it required to be shown that the mortgager belonged to an agricultural class which is required to be so determined by a notification in a gazette under section 3 of the Act. No such notification was produced and therefore, it could not be said whether the said mortgage by plaintiff No. 4 was by a member of the agricultural class. Apart from that, the jurisdiction is to be exercised by the Taluqdar under the said provisions only on an application being made by any party to him. There is nothing to show that any such application for the reliefs mentioned in the Clauses (a), (b) and (c) of sub-section (2) of section 10 was made by any of the parties to the Taluqdar so as to attract the provisions of section (10).

14. Further section 20 of the said Act which deals with the exclusion of the jurisdiction of the Civil Court provides that no Civil Court shall have jurisdiction in any matter which the Government or any Government Officer is empowered by this Act to dispose of. As I have pointed out above, the aforesaid provisions of section 10 of the said Act relied upon by the learned Counsel for the appellant would not apply to the suit mortgage and if that were so, it cannot be said that the Government Officer or the Government was empowered by this Act to deal or dispose of the question arising in respect of the suit mortgages.

15. I may further state as rightly pointed out by the learned Counsel for the respondent that the provisions of section 21 of the said Act show that there is no absolute bar to the jurisdiction of the Court. For section 21 provides that :---

'Every Civil Court which passes a judgment or order involving permanent alienation or mortgage or lease of the land of a member of an agricultural class, shall send to the Taluqdar a copy of such judgment or order'.

Sub-section 2 of the said section provides :---

'When it appears to the Taluqdar that any Civil Court has passed a decree or order contrary to any of the provisions of this Act, the Taluqdar may file a revision application in the Appellate Court.'

16. The question of jurisdiction as regards the suit mortgage has to be considered at the time when the mortgage period expired and right of redemption accrued to the mortgagar. In this case 20 years' period stipulated by the mortgage expired on 12-1-1969 and then only the right of redemption of plaintiff No. 4 came into existence.

17. At the time admittedly the said provisions of Hyderabad Agricultural Lands Alienation Act were already repealed and were not existent. The said Hyderabad Agricultural Lands Alienation Act was repealed by Hyderabad Tenancy and Agricultural Lands Act which dealt with the question of tenancies of Agricultural Lands only and had nothing to do with the question arising under a mortgage or as to the relationship between the mortgagor or mortgagee. The result, therefore, is that on the repeal of the said Hyderabad Agricultural Lands Alienation Act, by the Hyderabad Tenancy and Agricultural Lands Act, the former Act ceased to have any application to the suit mortgage.

18. Further, by a subsequent Act, viz., Bombay Act No. LVII of 1959 the provisions of Transfer of Property Act, 1882, were extended to the Hyderabad Area with the result that all mortgages in that area on coming into force of that Act were governed by the Transfer of Property Act.

19. The result, therefore, is that in any view of the matter, the Civil Courts would have jurisdiction to entertain and try the said suit which was for redemption of mortgage and for the possession of the mortgaged property. The learned Appellate Judge was, therefore, right in holding that the Civil Court only had jurisdiction to entertain the suit.

20. On the material on record, no other substantial question of law would arise in this second appeal.

21. Looking to the documents and evidence led, it appears to me that the learned Appellate Judge was right in characterising the evidence led on behalf of the defendant to support their case, as to the agreement of sale in their favour by the plaintiff No. 4 and Shaikh Bandu dated 15th December, 1948 as inconsistent, discrepant and unbelievable and in holding that the said agreement which was on a plain piece of paper as not properly proved. If one looks to the documents closely the conclusions arrived at by the learned Appellate Judge appear to be supported by one more circumstances if the said agreement of sale in respect of the suit properly in favour of defendant No. 1 and father of defendant No. 2 was really executed by plaintiff No. 4 and Shaikh Bandu on 14-12-48, then it is strange that to the said mortgage in respect of the suit properly executed by plaintiff in favour of defendant No. 1 and father of defendant No. 2 within a month thereafter i.e. on 13-1-1949 the said Sk. Bandu would be an attesting witness.

22. As the learned Judges of the lower courts have rightly pointed out that in view of the agreement of sale not being proved and in view of the mortgage transaction being proved properly on the lapse of 20 years from the date of mortgage the right of redemption of the mortgaged property in favour of the plaintiff No. 4 had accrued and thus the plaintiffs were entitled to file a suit for redemption and ask for possession.

23. On the facts and circumstances of this case, no other question of law arises and is urged by the learned Counsel for the appellant for consideration to this second appeal.

24. The result, therefore, is that the appeal is dismissed with costs. Orders of the lower courts are confirmed.

25. In the Civil Application No. 4337/79 taken out by the appellant rule is discharged. No order as to costs.


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