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Sadhu Singh Vs. Chanda Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 216 of 1956
Judge
Reported inAIR1957P& H108
ActsPunjab Restitution of Mortgaged Lands Act, 1938 - Sections 12; Code of Civil Procedure (CPC) , 1908 - Sections 9; Limitation Act, 1908 - Schedule - Article 14; Evidence Act, 1872 - Sections 114
AppellantSadhu Singh;chanda Singh and ors.
RespondentChanda Singh and ors.;sadhu Singh
Appellant Advocate H.L. Sarin, Adv.
Respondent Advocate F.C. Mital, Adv.
DispositionAppeal dismissed
Cases Referred(B) and P. B. Thiruvenkatacharyulu v. Secy
Excerpt:
.....decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any..........on 6th august, 1943 sadhu singh applied for restitution of the mortgaged land in the court of the special collector, lahore, under the provisions of the punjab restitution of mortgaged lands act, 1938 (punjab act no. iv of 1938). apparently this application was contested on behalf of the mortgagees and on 6th march, 1945, the collector ordered redemption of the mortgages on payment of rs. 77/-odd. the mortgagees filed an appeal in the court of the commissioner at lahore but its fate is not known in view of the partition of the country during the pendency of that appeal. the village in which the land in dispute is situate was a part of the lahore district but on partition it fell to the territory of india & is now a part of tahsil patti, district amritsar. sadhu singh then applied to the.....
Judgment:

Bishan Narain, J.

1. This second appeal has been filed by Subedar Major Sadhu Singn against the decision of the Additional District Judge, Amrit-sar, dismissing his appeal and affirming the judgment of the trial Court to the effect that the possession of the property in dispute should be given to the plaintiffs.

2. The land in dispute at one time belonged to Jagat Singh father of Subedar Sadhu Singh. On 27th June, 1895, he mortgaged his Jand with Dhanna Singh for Rs. 900/-. Then on 16th November, 1900 he mortgaged it again with Dhanna Singh for Rs. 1600/-. The third mortgage was effected by him on 11th December, 1905, in favour of Dhanna Singh for Rs. 2,000/- and finally the fourth mortgage was effected on 3rd June, 1914, for Rs. 3,850/-.

This time the mortgage was by Jagat Singh in favour of Pal Singh, Tehl Singh and Mehl Singh sons of Dhanna Singh. On 6th August, 1943 Sadhu Singh applied for restitution of the mortgaged land in the Court of the Special Collector, Lahore, under the provisions of the Punjab Restitution of Mortgaged Lands Act, 1938 (Punjab Act no. IV of 1938). Apparently this application was contested on behalf of the mortgagees and on 6th March, 1945, the Collector ordered redemption of the mortgages on payment of Rs. 77/-odd.

The mortgagees filed an appeal in the Court of the Commissioner at Lahore but its fate is not known in view of the partition of the country during the pendency of that appeal. The village in which the land in dispute is situate was a part of the Lahore District but on partition it fell to the territory of India & is now a part of Tahsil Patti, District Amritsar. Sadhu Singh then applied to the Assistant Collector, Amritsar for possession and he took possession of the property on 21st May, 1950.

Apparently the mortgagees again filed an appeal against the Special Collector's order but it was dismissed by the Financial Commissioner by his order dated 10th April, 1953. Thereupon the mortgagees filed the present suit on 6th July, 1954, for possession of the mortgaged land on the basis of the usufructuary mortgage dated 3rd June, 1914 out of which this appeal has arisen. The plaintiffs allege that they are entitled to possession of the land under the said mortgage deed. The suit was contested oh various grounds but it is not necessary to refer to them in this appeal.

The only two points that have been argued before me on behalf of the defendant-appellant ore that the suit is barred by time and that in any case the order of the Special Collector ordering redemption of the mortgages was within the jurisdiction of the Special Collector. and that a civil suit is not maintainable to contest that order. I shall first deal with the question of limitation.

The contention of tha learned counsel for the appellant is that Article 14 of the Indian Limitation Act applies to this case and as the suit was not filed within one year of the order of the Special Collector dated 6th March, 1945, the present suit is barred by time. Mr. Sarin in support of his argument has strongly relied on the decision of a Division Bench of this Court reported in Kaura v. Bam Chand, AIR 1925 Lah 385 (A). In that judgment the learned Judges were dealing with Punjab Act II of 1913 and it was laid down-

'When an order passed under a special Act is declared by that Act to be conclusive, it cannot be Ignored and no relief is open to the aggrieved party unless that order be set aside.'

It was further observed that an individual who takes advantage of a summary procedure must suffer its disadvantages as well as enjoy its benefits. Accordingly it was held that a mortgagor's right to redeem which would otherwise.be with-in limitation is barred if the action is brought later than a year of the date of an order passed to the plaintiff's detriment by the Collector on an applcation under Punjab Act No. II of 1913.

Their Lordships were dealing with an Act in which it was laid down in Section 12 that any party aggrieved by an order under various sections of that Act may institute a suit to establish his rights in respect of the mortgage, but, subject to the result of such suit, if any, the order shall be conclusive. Under that Act it is, therefore, open to a party to challenge the order of the Special Collector by a suit filed in civil Court. Article 14 of the Indian Limitation Act prescribes a limitation of one year from the date of the order for a suit to set aside the order made by an officer In official capacity.

The present suit however relates to Act No. IV of 1938. Section 12 of the 1938 Act lays down that no civil Court shall have jurisdiction to entertain any claim to enforce any right under a mortgage declared extinguished under this Act, or to question the validity of any proceedings under this Act. Thus under the 1938 Act civil Courts have no Jurisdiction whatsoever to entertain a suit challenging the decision of the Collector extinguishing the mortgage.

This provision of law is very different' fromSection 12 of Act No. II of 1913. When an order ispassed under the 1938 Act then civil Court cannot set aside that order unless it be held that theorder was without any jurisdiction. The presentcase is precisely of that nature. The mortgagees'claim is that the order passed by the Special Collector relating to the present mortgage was without jurisdiction. When an order is passed without jurisdiction or in excess of authority it is a nullity and need not be set aside.

If the act or an order of an officer is illegal or ultra vires it does not require to be set aside and Article 14 of the Limitation Act has no application vide inter alia Secy, of State v. Paredoon Jijibhai Divecha, AIR 1934 Bom 434 (B) and P. B. Thiruvenkatacharyulu v. Secy, of State for India Jn Council, ILR 57 Mad 501: (AIR 1934 Mad 147) (C). I am. therefore, of the opinion that Article 14 of the Indian Limitation Act has no application in this case. It is conceded that the suit for possession under the 1914 mortgage independently of the order of redemption made by the Collector is within time. Accordingly I reject this contention of the learned counsel for the appellant,

3. It was then argued that the order of the Special Collector was made validly in the exercise of jurisdiction vested in him and therefore this suit is not competent. Both the lower Courts have held that 1914 mortgage is independent of the previous mortgages. If this be so then the Special Collector would have no jurisdiction to extinguish it in view of Section 7 read with Section 2 of the Punjab Restitution of Mortgaged Lands Act, 1938. This is not disputed by the learned counsel for the appellant.

His contention is that the finding given by the lower Courts is not warranted by the documents on the record. After going through the various transactions given above the learned counsel pointed out that the mutation relating to the mortgage of 1900 discloses that the transaction of that year consisted of the previous mortgage of Rs. 900/- and of the new mortgage for Rs. 700/-bringing the total to Rs. 1600/-. It is clear to my mind from this mutation entry that the 1900 transaction was a mortgage in addition to the 1895 mortgage.

Similarly the documents P. 10 and P. 17 show that the 1905 mortgage was is addition to the previous mortgages. The question however, still remains whether the 1914 mortgage was independent of the previous mortgages or not. The original, mortgage deed is not forthcoming on this record. The lower Courts have held that this document is in possession of the defendant who has not. deliberately produced it in spite of the application by the mortgagees asking him to do so.

The lower appellate Court has drawn a presumption against the defendant to the effect that if that mortgage deed had been produced it would have shown that the 1914 mortgage is independent of the previous mortgages. This is a finding of fact, The learned counsel took me through certain documents to show that the original mortgage deed is not in possession of his client. But considering the entire matter it is clear that the defendant got it back from the Special Collector's Court. Sadhu Singh made an application (Ex. p.6) on 13th June, 1950, to the Collector, Amritsar, for return of the mortgage deed dated 27th June, 1895. and other mortgages.

Next day the necessary order was made by the Collector and the defendant took possession of the document at pages 23/24 of the file (Ex. P.4). The index Ex. P.3 shows that on those pages was a document executed by Jagat Singh in favour of Pal Singh. The only mortgage that was effected by Jagat Singh, father of Sadhu Singh, in favour of Pal Singh, Tehl Singh and Mehal Singh was the mortgage of 1914 and the previous mortgages had been executed in favour of Dhanna Singh alone. From this it is clear that the defendant got possession of the original mortgage deed of 1914 and the lower appellate Court was right in drawing a presumption against the appellant for not producing that document in Court.

Moreover the mutation relating to this mortgage shows that it was an independent transaction. It is clear from the mutation 17 that it was an independent mortgage. The language used in the mutation relating to previous mortgages is different from the language used in tills mutation. In the previous mutations the older mortgages are mentioned but not in Ex. P.7. The reasonable Inference is that the 1914 document had no connection with the previous mortgages.

There was a lapse of about nine years between the mortgages of 1905 and 1914 and it is quite possible that all the mortgagors up to 1905 may have been redeemed earlier and this mortgage was effected not in connection with the previous mortgages but in connection with some other requirements. I, therefore, see no reason to Inter- . fere with this finding of the lower Courts that the 1914 mortgage is independent of the previous mortgages.

That being so the Special Collector. Lahore, had no jurisdiction under the 1938 Act to extinguish this mortgage. It is conceded that if the order of the Special Collector does not affect the rights of the parties then the plaintiffs are en- titled to a decree for possession under the 1914 mortgage. I, therefore, hold that the plaintiffs' suit was rightly decreed by the lower Courts. (4) The result is that this appeal fails and is dismissed with costs.


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