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Shanti and ors. Vs. Chhoto and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberR.S.A. No. 1019 of 1971 and C. Misc. 890-C of 1983
Judge
Reported inAIR1983P& H321
ActsRedemption of Mortgages (Punjab) Act, 1913 - Sections 12; Transfer of Property Act - Sections 5 and 52
AppellantShanti and ors.
RespondentChhoto and anr.
Cases ReferredMiss Bedlani v. A. Hoogewerfe
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..........of the mortgage. hence the suit for the declaration to the effect that they were not owners of the suit property. the suit was contested and it was pleaded that the right of redemption still existed. the trial court found that the plaintiffs had not become the owners of the suit land by prescription, as alleged. as a result, their suit was dismissed. in appeal, the learned additional district judge, affirmed the said finding of the trial court and, thus, maintain the decree dismissing their suit. dissatisfied with the same, they have come up in second appeal to this court.3. during the pendency of the appeal, the defendants-respondents filed civil miscellaneous application no. 890-c of 1983, wherein certain subsequent events were pleaded and it was prayed that the appeal he dismissed as.....
Judgment:

1. This is plaintiffs' second appeal whose suit for the declaration has been dismissed by both the Courts below.

2. The plaintiffs filed the suit on the allegations that Mst. Ram Kaur mortgaged the property, in dispute with Raja Ram for Rs. 135 and 10 annas on the 10th Phagan 1957 Bk. And delivered its possession to the mortgagee. Raja Ram, mortgagee, is dead and the plaintiffs are his heirs. Mutation of the estate left by Raja Ram, mortgagee, had been sanctioned in their favour. Mst. Ram Kaur, the mortgagor, is also dead and Mst. Chhoto is her heir. The mutation in respect of her estate has been sanctioned in her favour. The limitation for redemption had expired and as such, they had become the owners of the property, in dispute. The limitation for redemption was stated to be 60 years from the date of the mortgage. Hence the suit for the declaration to the effect that they were not owners of the suit property. The suit was contested and it was pleaded that the right of redemption still existed. The trial Court found that the plaintiffs had not become the owners of the suit land by prescription, as alleged. As a result, their suit was dismissed. In appeal, the learned Additional District Judge, affirmed the said finding of the trial Court and, thus, maintain the decree dismissing their suit. Dissatisfied with the same, they have come up in Second Appeal to this Court.

3. During the pendency of the appeal, the defendants-respondents filed Civil Miscellaneous Application No. 890-C of 1983, wherein certain subsequent events were pleaded and it was prayed that the appeal he dismissed as having become infructuous on account of those subsequent events.

4. Notice of the application was given to the learned counsel for the appellants. He sought time for filing the reply and to seek instructions in this behalf. But today, he stated at the Bar that the case be decided taking into consideration the subsequent events alleged to have taken place as mentioned in the said application.

5. On Dec. 21, 1968, Jit Ram and others, who had purchased the mortgagee rights in the land, in dispute, from Mst. Chhoto, defendant, vide sale deed dated Sept. 8, 1967, made an application for redemption of the suit land measuring 80 Kanals 14 Marlas before the Collector, Patiala, under the Redemption of Mortgages (Punjab) Act, 1913(hereinafter called the Act). The said application was contested on behalf of the plaintiffs-appellants, but ultimately, the Collector, vide order dated Dec. 10, 1969, a certified copy of which has been filed along with the civil miscellaneous application as Annex. A. 1, allowed the said application and ordered the mortgage to be redeemed and the petitioners-mortgagors to be put into possession. The mortgage money was found to be Rs. 215/- . Admittedly, no suit challenging the said order of the Collector, as contemplated under Section 12 of the Act, was filed and, thus, the said order became conclusive as provided therein. It has been further alleged in the said civil miscellaneous application that in pursuance of the said order of the Collector, the applicants also got possession of the suit land from the plaintiffs-appellants and that they were now in possession of the same. Under these circumstances, it was prayed that in view of the subsequent events, the plaintiffs' appeal was liable to be dismissed as having become infructuous.

6. Faced with this situation, the learned counsel for the appellants contended that the view of the provisions of S. 52 of the T. P. Act, the said transfer was hit by the principle of lis pendens and, therefore, was of no consequence as regards the present appeal which could be decided on merits. In support of this contention, the learned counsel relied upon Parmeshari Din v. Ram Charan, AIR 1937 PC 260; Sahib Chandra v. Lachmi Narain, AIR 1929 PC 243; Ram Sanehi Lal v. Janki Prasad, AIR 1931 All 466(FB); and Ram Charan v. Parmeshwar Din, AIR 1933 All 201. On the other hand, the learned counsel for the respondents submitted that the subsequent events could be taken into consideration and the Court would be justified in acting upon such subsequent events since they have a material bearing on the decision of the case. In support of his contention, the learned counsel relied upon Miss Bedlani v. A. Hoogewerfe, AIR 1975 Raj 153.

7. After having the learned counsel for the parties and going through the case law cited at the Bar, I am of the considered opinion that on account of the subsequent events, the present appeal filed on behalf of the appellants is liable to be dismissed as having become infructuous.

8. In appropriate cases, the Court can take subsequent events into consideration to do complete justice between the parties and the Court would be justified in acting upon such subsequent events as are admitted by both the parties and have a material bearing on the decision of the case, as held in Miss Bedlan's case (AIR 1975 Raj 153)(supra).

9. The contention raised on behalf of the appellants that the said transfer was hit by the principle of lis pendens is wholly untenable in view of facts and circumstances of this case. Section 52 of the T. P. Act, reads--

'During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and no such terms as it may impose.

Explanation.-- xxx xxx

The relevant and material words in the abovesaid section are that, 'the property cannot be transferred or otherwise dealt cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to effect the rights of any other party thereto under any decree or order which may be made therein.' The transfer of property has been defined in S. 5 of the T. P. Act. It provides that the transfer of property means an act by which a living person conveys property in present or future, to one or more other living persons. In the present cases, there is no such transfer by act of the parties. It is the order of the Collector passed under the Act on the basis of which it is claimed that the appeal has become infructuous because the said order was never challenged by the plaintiffs under Section 12 of the Act, and having not been challenged the said order shall be conclusive between the parties. It is on account of this statutory order that the appeal is said to have become infructuous. Thus, under the circumstances, the provisions of Section 52 of the Transfer of Property Act, are not at all attracted. Moreover, the said application was filed when the suit was pending in the trial Court. Any transfer by Mst. Chhoto in favour of the applicants, Jit Ram and others, in the year 1967 was of no consequence because it is immaterial whether the order, Annexure A-1, was passed by the Collector at the instance of Mst. Chhoto or her transferees. The bar is being claimed on the basis of the order of the Collector having not been challenged by the plaintiffs by way of a regular suit. As stated earlier, it is not disputed that the applicants have entered into the possession of the land is pursuance of the said order of the Collector and the plaintiffs are no more in possession thereof. Thus, their suit for the declaration could not be decreed in view of the subsequent events.

10. As a result of the above discussion, this appeal fails and is dismissed as having become infructuous with no order as to costs. The civil miscellaneous application is allowed.

11. Order accordingly.


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