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Joginder Singh and ors. Vs. Gurdev Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular Second Appeal No. 975 of 1971
Judge
Reported inAIR1982P& H349
ActsLimitation Act, 1963 - Sections 3; Evidence Act - Sections 35
AppellantJoginder Singh and ors.
RespondentGurdev Singh and ors.
Cases Referred and Mt. Bhart v. Des Raj
Excerpt:
.....is that since the plaintiff-respondents have failed to produce and prove on record the original mortgage deed i. para 7.32 of the punjab land records manual clearly lays down that registrar and sub-registrar registering a document relating to the transfer of agricultural land shall send every month the particulars of the registered deed to the office kanungo, who in turn, would inform the field kanungo and the patwari in accordance with the requirements prescribed in the relevant form. a reading of these paras of the manual clearly indicates that the sub-registrar registering a document with regard to transfer of agricultural land is under a duty to inform the revenue officials about the same and those revenue officials in turn are under an obligation and duty to make the entries in..........civil litigation initiated by the defendants they had succeeded in securing the possession of the suit land. on the basis of their claim as mortgagors with effect from 11 the may, 1954 they filed the present suit for redemption of the land. the suit was contested by the defendants primarily on the ground that the same was barred by limitation as, according to them, prior to the purchase made by their predecessor-in-interest of the mortgage rights on 11th may, 1954, the same had been mortgaged in favour of gurdev singh and others and that mortgage had taken place more than sixty years prior to the filing of the suit.3. as already indicated, both the lower courts repelled the stand of the defendants and holding the suit to be within limitation, allowed the claim of the plaintiffs.4. the.....
Judgment:

1. In this Regular Second Appeal grouse against the concurrent decrees of the lower two Courts is about the redemption of the suit land in favour of the plaintiffs-respondents on payment of Rs. 400/-. The following facts furnish the necessary background of the case.

2. Sarwan Singh, the original owner of the land, had mortgaged the same with possession for a sum of Rs. 400/- with Kaka Singh, husband of predecessor-in-interest of the defendants. The plaintiffs claim that though they had got this land redeemed on 9th May, 1966, yet in subsequent civil litigation initiated by the defendants they had succeeded in securing the possession of the suit land. On the basis of their claim as mortgagors with effect from 11 the May, 1954 they filed the present suit for redemption of the land. The suit was contested by the defendants primarily on the ground that the same was barred by limitation as, according to them, prior to the purchase made by their predecessor-in-interest of the mortgage rights on 11th May, 1954, the same had been mortgaged in favour of Gurdev Singh and others and that mortgage had taken place more than sixty years prior to the filing of the suit.

3. As already indicated, both the lower Courts repelled the stand of the defendants and holding the suit to be within limitation, allowed the claim of the plaintiffs.

4. The solitary contention now raised by the learned counsel for the appellants is that since the plaintiff-respondents have failed to produce and prove on record the original mortgage deed i.e. pertaining to mortgage in favour of Gurdev Singh and others, the suit of the plaintiff cannot be held to be within limitation. The learned counsel urges with some amount of vehemence that as the plaintiffs are required to prove the exact date on which that mortgage had taken place, it cannot be assumed that the mortgage had been created within a period of sixty years. For making this statement the learned counsel relies on the provisions of S. 3 of the Limitation Act, 1963, and on the following precedents; Mohammad Akbar Khan v. Mt. Motai, AIR 1948 PC 36, Suraj Bali v. Rang Bahadur, AIR 1950 All 88, and Mt. Bhart v. Des Raj, AIR 1950 East Punj 157. In these judgments it has been laid down that the initial burden is always on the plaintiff to prove that the suit for redemption is within the period prescribed by the Limitation Act and in order to determine that, it cannot be assumed on the basis of the mutation or revenue entries that the mortgage was created on any particular date. Such type of entries only prove the existence or subsistence of the mortgage but not the actual date of mortgage. The learned counsel for the respondent-plaintiff does not dispute this legal position. He, however, maintains that in the case in hand, there is something more available on the record and that is the date of mortgage itself. This date is mentioned in column 13 of Exhibit P-10 i.e. mutation relating to mortgage created in favour of Gurdev Singh and others. What is required to be incorporated in this column of the mutation form is noted in the heading of this column and reads, 'Nature and date of transfer with particulars in case of sale and amount of mortgage debt in case of mortgage'. This entry reads as follows:--

'Rehan Bajaria Registry 13 Chet 1993 Jare Rehan Mublag Rs. 400. Bajaria Form No. 945.'

The English translation of this entry reads as follows :

'Mortgage through registered deed dated 13 Chet 1993, Mortgage amount Rs. 400.'

The learned counsel for the appellants submits that even this entry in Exhibit P-10 does not satisfy the requirements of law as interpreted in the above-noted judgments. He maintains that, firstly there was no obligation on the part of the Sub-Registrar on whose information this entry appears to have been made to communicate any particulars or the date of mortgage to the revenue officials, and, secondly, the revenue official making this entry in Exhibit P-10 was not under any duty or obligation to incorporate the date of mortgage and unless that is so, this entry would not be admissible in evidence in terms of S. 35 of the Evidence Act.

5. After giving my thoughtful consideration to this aspect of the matter, I do not find any substance in this submission of the learned counsel. Para 7.32 of the Punjab Land Records Manual clearly lays down that Registrar and Sub-Registrar registering a document relating to the transfer of agricultural land shall send every month the particulars of the registered deed to the office kanungo, who in turn, would inform the Field Kanungo and the Patwari in accordance with the requirements prescribed in the relevant form. Again, the form of mutation is prescribed by para 7.3 of this Manual. The subsequent paras contain the relevant instructions as to how this form is to be filled in or the revenue record in pursuance thereof has to be prepared. A reading of these paras of the Manual clearly indicates that the Sub-Registrar registering a document with regard to transfer of agricultural land is under a duty to inform the revenue officials about the same and those revenue officials in turn are under an obligation and duty to make the entries in accordance with the instructions contained in these paras. It was in pursuance of this procedure laid down in this Manual that the entries were made in Exhibit P-10. That being the situation, it cannot reasonably be disputed that the original mortgage was created on 13th Chet 1993 (B. K) equivalent to 26th March, 1937. This date, obviously, is within the period of limitation from the date of filing of the present suit. Thus, I do not find any infirmity in the concurrent findings recorded by the lower Courts on the point of limitation.

6. No other point has been urged by the learned counsel for the appellants.

7. In view of the discussion above, this appeal fails and is dismissed but with no order as to costs.

8. Appeal dismissed.


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