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Dhanuk Singh Vs. Tulsi Ram and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in15Ind.Cas.545
AppellantDhanuk Singh
RespondentTulsi Ram and ors.
Cases ReferredAkbar Khan v. Turaban
Excerpt:
.....wholly unsupported by evidence and so far as the record goes, it is obvious that it rests only on dhanuk singh's own word and that it is contradicted by the mutation proceedings of 1872, the record of which certainly goes to support the learned subordinate judge in his finding that it was a pure mistake and nothing else which led to dhanuk singh's being recorded as mortgagee of 15 biswansis instead of 5 biswansis. i am satisfied, however, that this course is unnecessary, because the plea in question was not taken in the written statement. i suppose the written statement may also be understood as raising the further question of limitation to which i shall come presently but it certainly contains no plea to the effect that dhanuk singh's possession over this share of 10 biswansis is based..........a mortgage, dated the 19th of october 1870, by one lachhman in favour of the defendant-appellant, dhanuk singh. the plaintiffs are transferees of the heirs of lachhman. the dead in suit purports to be a mortgage of a 5-biswansi share and mutation was applied for by lachhman and dhanuk singh of this share only and orders were issued accordingly by the revenue court which heard the application. i must take it, however, as settled by the finding of the lower appellate court, that, in consequence of a mere error or oversight by the subordinate officials entrusted with the carrying out of the orders of the mutation court, the name of dhanuk singh was recorded in respect of a 15-biswansi share instead of a 5-biswansi share. the denomination of these shares, i. e., their description in the.....
Judgment:

Piggott, J.

1. This is a suit for redemption of a mortgage, dated the 19th of October 1870, by one Lachhman in favour of the defendant-appellant, Dhanuk Singh. The plaintiffs are transferees of the heirs of Lachhman. The dead in suit purports to be a mortgage of a 5-biswansi share and mutation was applied for by Lachhman and Dhanuk Singh of this share only and orders were issued accordingly by the Revenue Court which heard the application. I must take it, however, as settled by the finding of the lower Appellate Court, that, in consequence of a mere error or oversight by the subordinate officials entrusted with the carrying out of the orders of the mutation Court, the name of Dhanuk Singh was recorded in respect of a 15-biswansi share instead of a 5-biswansi share. The denomination of these shares, i. e., their description in the village papers has since been altered in consequence of a partition of the mahal but for convenience sake, I propose to continue to speak of the share mortgaged as a share of 5 biswansis and the share in respect of which Dhanuk Singh's name was recorded by mistake as a share of 10 biswansis. The plaintiffs now come to Court op the allegation that Dhanuk Singh has possession as mortgagee only over a share of 5 biswansis but the extent of his mortgagee's rights' continues to be wrongly recorded in the village papers as if a share of 15 biswansis was actually mortgaged to him, It is clear from the documentary evidence which I have had to examine in the course of the argument that Dhanuk Singh's actual possession consists substantially in the receipt of profits from the larnbardar of the mahal. According to the rule of law now affirmed by this Court, Dhanuk Singh would be entitled year by year to sue the lambardar of the mahal for profits calculated on the basis of his mortgage possession over a share of 15 biswansis and so long as the entries in the Revenue papers stand unconnected, there would be an unrebuttable presumption that Dhanuk Singh actually possesses the right claimed by him and profits would have to be decreed on the basis of this presumption. Of course, if the plaintiffs had been prepared to admit that Dhanuk Singh was actually in possession as mortgagee over a share of 15 biswansis, their course would have been simple. They would have sued to redeem on the basis of the mortgage-deed of 1870 pleading at the same time that there was no other valid mortgage-debt on the share in Dhanuk Singh's possession and claiming to be entitled to redeem the whole on payment of the debt secured by the aforesaid deed of the 29th of October 1870. The plaintiffs, however, were not prepared to admit Dhanuk Singh's possession over this share of 10 biswansis and, inasmuch as it has been found in their favour by the lower Appellate Court that Dhanuk Singh is not in fact in possession of this share, I must take it that they were right in this attitude. They have accordingly asked the Court to decree redemption of the mortgaged share and at the same time to give them a declaration that Dhanuk Singh is not in possession as mortgagee of any other share in the mahal, 1 have referred to the written statement filed by the defendant in order to satisfy myself as to the precise grounds upon which he resisted the claim. In the judgment of the lower Appellate Court, it is noted that Dhaunk Singh endeavoured in the course of the trial to put forward the case that there had been an oral mortgage of a share of 10 biswansis for a sum of Rs. 200 over and above the registered mortgage of the 29th of October 1870. My attention has also been drawn to a document on the file which shows that some contention like this was put forward by Dhanuk Singh in the year 1898. The Court below has swept this contention aside as wholly unsupported by evidence and so far as the record goes, it is obvious that it rests only on Dhanuk Singh's own word and that it is contradicted by the mutation proceedings of 1872, the record of which certainly goes to support the learned Subordinate Judge in his finding that it was a pure mistake and nothing else which led to Dhanuk Singh's being recorded as mortgagee of 15 biswansis instead of 5 biswansis. I felt much inclined at one stage to remit an issue on this point in order to allow the defendant-appellant an opportunity of producing further evidence if available. I am satisfied, however, that this course is unnecessary, because the plea in question was not taken in the written statement. Dhanuk Singh there resisted the plaintiff's claim on the ground that he had acquired by adverse possession a prescriptive right as proprietor or mortgagee in respect of a share of 10 biswansis and he also pleaded certain foreclosure proceedings, with which I have now no concern, as they are found to have been abortive. I suppose the written statement may also be understood as raising the further question of limitation to which I shall come presently but it certainly contains no plea to the effect that Dhanuk Singh's possession over this share of 10 biswansis is based upon good and valid title derived from a mortgage transaction other than that embodied in the deed of 1876. This point, therefore, goes against the defendant on the pleadings, and there is no need to remit any issue concerning it.

2. The Court of first instance framed very proper issues in the case and took all the evidence tendered by either party. It decreed the plaintiff's suit for redemption but refused to allow him any further relief on the ground that a suit for a mere declaration was barred by limitation under Article 120 of the first Schedule to the Indian Limitation Act (IX of 1908). The finding on this question of law was reversed by the lower Appellate Court which there upon proceeded to determine all the question of fact involved in the issues framed by the first Court. On the question of possession, the finding of the lower Appellate Court is entirely against the defendant and is binding on me in second appeal. The effect of that finding is that the defendant is not shown to have acquired any prescriptive title as mortgagee or otherwise in respect of the share of 10 biswansis by 12 years' adverse possession and farther that the plaintiffs and not the defendant Dhanuk Singh were in actual possession of this share at the time of the institution of the suit. The lower Appellate Court has accordingly granted the plaintiffs their claim for redemption and has added to its decree a declaration making it clear that the defendant is not in actual possession as mortgagee of any share in this mahal over and above the share ordered to be redeemed

3. Now, the question raised before me in second appeal is only whether that portion of the decree of the lower Appellate Court, which grants the plantiffs this declaration ought not to be set aside, on the ground that any suit for a declaration in respect of this share of 10 biswansis was, under the circumstances, barred by limitation. The law on this subject was laid down by this Court in Francis Legge v. Rambarary Singh 20 A. 35 and in Akbar Khan v. Turaban 5 A.L.J. 637 : A.W.N. (1908) 252 : 4 M.L.T. 444 : 31 A. 9 : 1 Ind. Cas. 557. I am bound by these rulings and I have only to see whether they precisely over the facts of the present case. If this were a mere suit for a declaration, the plaintiffs would have to show on what date the right to obtain the declaration sought for accrued to them and would have to satisfy the Court that the said right did not accrue to them more than six years before the suit. As a matter of fact, there was nothing said on the point in the plaint and the plaintiffs' case is not that they are coming to Court for a mere declaration so as to be bound by the provisions of Article 120 aforesaid but that the relief sought by them in the way of declaration is ancillary to their claim for redemption and is of such a nature that the Court is bound to entertain it so long as the suit for redemption itself is within time. I have jointed out that the circumstances of this case are peculiar and there is no doubt that the nature of the presumption laid down in Section 201 of the Agra Tenancy Act (Local Act II of 1901) will operate very seriously against the plaintiffs if they are not allowed relief in this suit. If it were not for that presumption, it might be contended that the declaration sought for by the plaintiffs was superfluous and that it could be refused on the mere ground that no adequate necessity for granting it was shown. As the case stands, unless the plaintiffs can obtain from the Civil Court some form of decree on the strength of which the Revenue Courts will be prepared to correct the mistaken entry in the papers, they stand to lose the benefit of the finding in their favour on the question of possession arrived at by the lower Appellate Court. I incline to think that where a claim for a declaration is merely ancillary to the claim for same other relief put forward in the same suit and where the granting of such declaration appears to the Court clearly necessary in order to give the plaintiffs suitable and adequate relief upon his main claim, the suit will be governed as regards limitation merely by the Article of the first Schedule of the Indian Limitation Act applicable in respect of the main relief claimed, To put the matter from a different point of view, I am of opinion that a Civil Court has an inherent right so to frame its decree as to embody in that decree any finding upon a question of fact, which it has arrived at in the course of the suit in the determination of an issue fairly arising out of the pleadings and the determination of which was necessary in order to grant the plaintiffs appropriate relief in respect of their main claim.

4. Now, in the present case, I think that the plaintiffs were entitled in their suit for redemption as such to ask the Court to give them some adjudication regarding the extent of the share actually mortgaged to the defendant Dhanuk Singh or the extent of the share actually in his possession as mortgagee. The incorrect entry in the village papers threw a doubt upon the extent of that share and left the plaintiffs in such a position that a decree simply ordering redemption of the mortgage of the 29th of October 1870 as such would fail to give the plaintiffs the full relief to which, they were entitled. It has occurred to me that the plaint might have been framed so as to ask the Court to decree in favour of the plaintiffs possession by redemption upon payment of the mortgage-debt provided in the deed of the 29th of October 1870 either of the share of 5 biswansis or of such share in the mahal in suit as might be found to be actually in possession of Dhanuk Singh mortgagee A suit thus framed might have evaded the difficulty which has been raised regarding the operation of Article 120 of the first Schedule to the Indian Limitation Act but it would have been a mere evasion. On the findings which have been actually arrived at, the lower Appellate Court would have given the plaintiffs upon a suit framed as I have suggested in substance the very decree which it has passed, that is to say, a decree for redemption of the biswansi share coupled with a formal expression in the decree of the Court's finding that nothing over and above this 5 biswansi share was in the possession of the mortgagee. I think, therefore, that no sufficient case has bean made out in second appeal for interference with the decree which has been passed in this case. I dismiss the appeal with costs.


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