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Takan Ram and ors. Vs. NaraIn Das and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 781 of 1969
Judge
Reported inAIR1972P& H477
ActsLimitation Act, 1908 - Sections 19
AppellantTakan Ram and ors.
RespondentNaraIn Das and anr.
Cases ReferredRalla Ram v. Bhana Mal
Excerpt:
.....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 order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a..........under the mortgage of being redeemed. he submits that they had consciously been claiming the land as mortgagees. if in fact the period of redemption had already expired, then it was not necessary for them to describe themselves as mortgagees and in that contingency they could claim straightway as owners thereof and not as mortgagees. 10. lastly mr. jain contended that in any case the findings of the lower appellate court that as a result of the acknowledgment not only the existence of jural relationship is admitted but also the liability of being redeemed stands admitted, is a finding of fact and cannot be reconsidered in second appeal. in support of his submission, he placed reliance on ralla ram v. bhana mal, air 1933 lah 33. 11. after giving my careful consideration to the.....
Judgment:

1. This second appeal arises out of a suit for possession by redemption instituted by plaintiff-respondents. In the plaint the plaintiff-respondents averred that certain land (now left behind in Pakistan) was mortgaged in the year 1920 by their predecessor-in-interest Topan Dass to Megha Ram predecessor-in-interest of the defendant-appellants and that after the partition of the country, the defendant-appellants have been allotted land in lieu of the said land.

2. The defendant-appellants contested the suit and inter alia pleaded that the suit is barred by limitation.

3. The Trial Court dismissed the suit as being time-barred while the first appellate Court taking contrary view on this point decreed the suit. Hence this appeal at the instance of the defendant-appellants.

4. The only point argued and that arises for decision in this second appeal is as to whether the suit is within limitation. The plaintiff-respondents claim the suit within limitation on the strength of certain admissions contained in Exhibits P-1 to P-6, P. 11, P-12 and P-15, which, according to them, constitute an acknowledgement in terms of Section 19 of the Limitation Act, Act No. IX of 1908, (hereinafter referred to as the Act)--thereby extending the period of limitation for filing the suit for redemption.

5. Exhibits P-1 to P-6 are the claim applications submitted in the year 1948 by the defendant-appellants for allotment of land in lieu of the land left behind in Pakistan. Therein they claimed to the entitled to allotment of land in lieu of the land left behind in Pakistan of which they claimed themselves to be the mortgagees. Exhibit P-11 is the copy of the Jamabandi for the year 1963-64 recording the plaintiff-respondents as mortgagors and the defendant-appellants as mortgagees of the land in dispute and Exhibit P-12 is the copy of Khatauni Ishtmal repeating the entries of Exhibit P-11.

6. The Trial Court held that the contents of the above said documents do not tantamount to an acknowledgment in terms of Section 19 of the Act while Lower Appellate Court applying the ratio in Tilak Ram v. Nathu, AIR 1967 SC 935, held that the contents of documents Exhibits P-1 to P-6 do constitute an acknowledgment in terms of Section 19 of the Act.

7. Mr. H. L. Sibal, appearing for the defendant-appellants, advanced two arguments, viz.,

(1) that the admission in the claim applications were not voluntary and hence they cannot constitute an admission or acknowledgment of the liability to be redeemed of the land in question in terms of Section 19 of the Act, and

(2) that the admissions contained in Exhibits P-1 to P-6 merely admit the jural relationship but from that it cannot be inferred that the initial period of limitation of redemption was subsisting when the said admissions were made by the defendant-appellants.

As far as his first argument is concerned, I do not think there is any merit, as it makes no difference whether a person acknowledges his status voluntarily or he does so when he is required under any law in a certain contingency to describe his status. A similar question arose before a Division Bench of the Culcutta High Court in Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, AIR 1962 Cal 115. There the admissions were made in a balance sheet statutorily required to be submitted by the company and an argument was advanced that since the admission had to be made in pursuance of a statutory duty, so the same cannot be considered voluntary and hence it does not amount to an acknowledgment in terms of Section 19 of the Limitation Act. Refuting the argument, it was held that

'though there was a compulsion upon the managing agents to prepare the documents under the Companies Act and the articles of association, there was no compulsion upon them to make any particular admission. The admissions though made in discharge of their statutory duty were nevertheless conscious and voluntary admissions. A document was not taken out of the purview of Section 19, Limitation Act, merely on the ground that it was made under compulsion of law.' 8. It is the second argument advanced by Mr. Sibal that does not admit of any simple answer.

9. Mr. Jain, appearing for the plaintiff-respondents, has urged that once the defendant-appellants described themselves in the aforesaid documents to be mortgagees and the plaintiff-respondents as mortgagors and also mentioned the mortgage money due to them from the plaintiff-respondents, they were not only admitting the existence of the jural relationship, but also consciously asserting their rights as mortgagees as also their liability under the mortgage of being redeemed. He submits that they had consciously been claiming the land as mortgagees. If in fact the period of redemption had already expired, then it was not necessary for them to describe themselves as mortgagees and in that contingency they could claim straightway as owners thereof and not as mortgagees.

10. Lastly Mr. Jain contended that in any case the findings of the lower Appellate Court that as a result of the acknowledgment not only the existence of jural relationship is admitted but also the liability of being redeemed stands admitted, is a finding of fact and cannot be reconsidered in second appeal. In support of his submission, he placed reliance on Ralla Ram v. Bhana Mal, AIR 1933 Lah 33.

11. After giving my careful consideration to the arguments addressed by the counsel for both sides on the two points, I am of the opinion that the lower Appellate Court was right in coming to the conclusion that the defendant-appellants consciously and knowingly made the aforesaid admissions in the documents in question not only asserting their rights as mortgagees but also their liability as mortgagees.

12. If in fact the period of limitation had expired at the time when the documents Exhibits P-1 to P-6 came to be recorded and executed by the defendant-appellants, then it was very simple for them to have mentioned therein the date of the mortgage or year of the mortgage, which the relevant instruction required them to do. They could have also mentioned that the period of limitation had already expired but they did not do so and they squarely rested their claim for the land in question on their status as mortgagees. In view of the above, I am of the opinion that the admissions in Exhibits P-1 to P-6 do constitute an acknowledgment in terms of Section 19 of the Limitation Act and hence the suit of the plaintiff-respondents cannot be considered as being barred by limitation.

13. I am also in agreement with the contention advanced in the alternative by the learned Counsel for the plaintiff-respondents that an inference from the admissions incorporated in the documents in question to the effect that the persons concerned acknowledged the existing liability, is a question of fact. That being the position, then the clear finding of the lower Appellate Court to that effect cannot be reversed in second appeal.

14. For the reasons recorded above, I dismiss this appeal but, in the circumstances of this case, make no order as to costs.

15. Appeal dismissed.


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