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Kaka Singh Vs. Hazura Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1045 of 1972
Judge
Reported inAIR1983P& H68
ActsRedemption of Mortgages (Punjab) Act - Sections 4
AppellantKaka Singh
RespondentHazura Singh and ors.
Cases ReferredChanna Singh v. Smt. Majo
Excerpt:
.....i find that the contention of the learned counsel for the appellant is well-based. 3. it is well settled that if the collector dismisses an application for redemption without considering the merits of the case, the question of filing a suit to get rid of that order does not arise, nor would such a suit filed under the general law, be barred by limitation on that account. majo, (1976) 78 pun lr 726: (air 1976 punj 310), that the dismissal of an application for redemption by the collector on a technical ground like the application being premature, would to be hit by the stringent provisions of s......the period of limitation, i.e. one year. the contention is that on account of this default, the suit filed by the appellant was barred by limitation. both the courts below held the relevant issue against the appellant whose suit was dismissed.2. mr. h. l. sarin, learned counsel for the appellant has referred to the crucial document, i. e., the order ext. d2 and has submitted that the courts below have not interpreted the true import of the said order, as this order have not been passed on consideration of the merits of the case. as such, the question of filling the suit within one year did not arise. after hearing the learned counsel for the parties, i find that the contention of the learned counsel for the appellant is well-based. a bare perusal of the order ext. d2 indicates that.....
Judgment:

1. This second appeal has been filed by Kaka Singh plaintiff in the circumstances which are these. The appellant had mortgaged land measuring 22 bighas 14 biswas as detailed in the plaint for Rs. J652/- with Hazura Singh respondent No. 1 on June 3, 1956. Subsequently land measuring 46 Kanals and 1 Marla was carved out in lieu of the above land in consolidation proceedings. The appellant claimed that in spite of his requests made to respondent No. 1 to allow redemption of the mortgage on payment of Rs. 652/- , he did not permit the same. The suit was, therefore, brought for possession of the land in dispute by redemption. The suit was, contested by respondent No. 1 on various grounds, but for the purpose of the represent appeal, the only ground which is covered by issue No. 3 an on which arguments have been addressed is that the appellant had filed an application for redemption of land before the Collector who had dismissed the same on Oct. 13, 1959, vide order copy Ext. D2 and that no suit to set aside that order had been filed within the period of limitation, i.e. one year. The contention is that on account of this default, the suit filed by the appellant was barred by limitation. Both the Courts below held the relevant issue against the appellant whose suit was dismissed.

2. Mr. H. L. Sarin, learned counsel for the appellant has referred to the crucial document, i. e., the order Ext. D2 and has submitted that the Courts below have not interpreted the true import of the said order, as this order have not been passed on consideration of the merits of the case. as such, the question of filling the suit within one year did not arise. after hearing the learned counsel for the parties, I find that the contention of the learned counsel for the appellant is well-based. A bare perusal of the order Ext. d2 Indicates that the application filed by the appellant under s. 4 of the redemption of Mortgages (Punjab) Act was rejected merely on the ground that there was no proof in regard to an earlier mortgage effected on the same property. The observations of the same property. The observation of the Collector in this behalf may be noticed;

'It has nowhere, therefore been shown that the first mortgage was ever redeemed by any document nor payment has been proved. Since no proof is forthcoming as to when the original mortgage was done by means of any document o oral testimony, the date of first mortgage cannot be ascertained. The application, therefore, on the face of it, appears to be time-barred.'

Merely because there was no proof in regard to the existence or redemption of the earlier mortgage, the learned Collector was not justified in rejecting the application as time-barred, as was done by him. An order of this nature is a nullity and could be safety ignored. The question of filling a suit to set aside this order did not, therefore, arise nor can it be said on that basis that the present suit filed by the appellant was barred by limitation. the Court below appeared to have completely ignored this aspect of the mater and in such a situation, the illegality committed in this behalf has to be rectified.

3. It is well settled that if the Collector dismisses an application for redemption without considering the merits of the case, the question of filing a suit to get rid of that order does not arise, nor would such a suit filed under the general law, be barred by limitation on that account. It is held by a Full Bench of this Court in Channa Singh v. Smt. Majo, (1976) 78 Pun LR 726: (AIR 1976 Punj 310), that the dismissal of an application for redemption by the Collector on a technical ground like the application being premature, would to be hit by the stringent provisions of S. 12 of the Redemption of Mortgages (Punjab) act, and there was no bar to a suit being brought for the redemption of the mortgage under the general law, This ratio of the said authority squarely covers the present case. In this view of the matter, the appeal succeeds and the judgment and decree of the lower appellate Court and those of the trial Court are reversed. The suit of the appellant is decreed in the terms, as prayed.

4. In the circumstances of the case, the parties are left to bear their own costs throughout.

5. Appeal allowed.


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