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Om Prakash and anr. Vs. Mansa and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 691 of 1954
Judge
Reported inAIR1959P& H626
ActsLimitation Act, 1908 - Sections 19
AppellantOm Prakash and anr.;mansa and ors.
RespondentMansa and ors.;om Prakash and anr.
Advocates: F.C. Mittal,; S.K. Jain and; H.L. Sarin, Advs.
DispositionAppeal dismissed
Cases ReferredNaranappa v. Ramalingam
Excerpt:
- sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........to the patwari of their having done so. on the basis of this report which was not signed by the original mortgagees, a mutation was entered and later the mortgagees being absent, interrogatories were issued to them enquiring about the transfer of the mortgagee rights.these interrogatories appear to have been received back on the basis of which the mutation was sanctioned and exhibit p. 5 is the copy of the mutation. an application under section 4 of the punjab restitution of mortgaged lands act by the defendants was dismissed on 2nd of may, 1950, on the ground that the mortgage in question was more than sixty years old. the suit, out of which the present appeal has arisen, was filed by the plaintiffs, mansa and ratti ram, the transferees from the original mortgagees for a declaration.....
Judgment:

Harbans Singh, J.

1. On 8th of June, 1883, Mam Chand father of the present defendants mortgaged the land in suit measuring 13 bighas and 12 biswas in favour of Prem Sukh, Lachhman and Parbhu for a sum of Rs. 300/-. Prem Sukh having died the remaining mortgagees sold the mortgagee rights to plaintiffs, Mansa and Ratti Ram, sons of Phulu, and made a report to the Patwari Of their having done so. On the basis of this report which was not signed by the original mortgagees, a mutation was entered and later the mortgagees being absent, interrogatories were issued to them enquiring about the transfer of the mortgagee rights.

These interrogatories appear to have been received back on the basis of which the mutation was sanctioned and Exhibit P. 5 is the copy of the mutation. An application under section 4 of the Punjab Restitution of Mortgaged Lands Act by the defendants was dismissed on 2nd of May, 1950, on the ground that the mortgage in question was more than sixty years old. The suit, out of which the present appeal has arisen, was filed by the plaintiffs, Mansa and Ratti Ram, the transferees from the original mortgagees for a declaration that they have become owners of the property in disputeby efflux of time and that the defendants' right of redemption, no longer exists.

The main issue in the case was whether the mortgage in question has been duly acknowledged within limitation and for that reason the period of limitation for redemption of the mortgage by the defendants has not expired. The learned trial Court dismissed the suit of the plaintiffs holding that there being an acknowledgment as required under section 19 of the Indian Limitation Act the right of redemption of the defendants had not ceased to exist.

In appeal, however, the learned lower appellate Court reversed this finding On two grounds, (1) that there was no evidence as to whether the original mortgagees did sign the statements made by them in answer to the interrogatories which were issued by the revenue officer and that in addition the Girdawar Qanungo D. W. 3 and Patwari D.W. 4 did not specifically state that the statements made in answer to the interrogatories did actually bear the signatures of the mortgagees and (2) that the oral sale of the mortgagee rights was made on 9th of July, 1937, the date on which a report was made to the Patwari and that any acknowledgment made thereafter in the statements in answer to the interrogatories in the mutation said to have been attested on 5th May, 1938, would have no effect because no right or interest was left with the original mortgagees after the oral sale had been completed on 9th of July, 1937 and in view of these findings the appeal was accepted and the suit of the plaintiffs was decreed with costs throughout. The defendants have come up in appeal.

2. The learned counsel for the appellants urged that under section 114 of the Indian Evidence Act, there is a presumption that the official acts were properly carried out in accordance with the provisions of the Punjab Land Revenue Act and Chapter VII of the Punjab Land Records Manual. The procedure to bo adopted for the issue of interrogatories and the submission of the statements made by the persons concerned is laid down in rule 7.31. The interrogatories have to be issued in the form prescribed therein. The answers given by the persons to whom the interrogatories are issued are to be given in column 5 which has the heading 33 follows:--

'Answers with date and signature of persons giving statement as well as the person identifying (Lambardar or Zaildar) and that of the official recording the statement.'

The learned counsel, therefore, urged that it should be presumed that the rules were complied with and the answers given by the original mortgagees to whom the interrogatories were issued, were duly signed by them. He also referred to the statements of the Girdawar Qanungo and the Patwari who give the procedure and state that the signatures of the persons to whom interrogaories are issued are always taken below the answer given by them. It is, however, not necessary to go into this question because even if it be taken that the statements were made by the original mortgagees on or about the 5th of May, 1938, which is the date of the aftesta'ion of the mutation in which reference to the interrogatories acknowledging the existence of the original mortgage was made, yet the other question would still remain whether such an acknowledgment made by them after they had parted with their right, title and interest in the property in dispute can be effective as against the transferees. This matter was considered by a Full Bench of the Madras High Court in Pavayi v. Palanivela Goundan, AIR 1940 Mad 470. The head-note runs as follows:--

'A mortgagor who has lost all interest in the mortgaged property cannot by an acknowledgment within the meaning of Section 19 or by the payment of interest or principal within the meaning of Section 20 bind the person on whom his interest has devolved.'

This was followed in Naranappa v. Ramalingam, AIR 1950 Mad 553. In the present case it was urged on behalf of the appellants that the subsequent acknowledgment made by the original mortgagees was made during the mutation proceedings which were in the interest of the transferees and that this distinguished the present case from the cases cited above wherein the transferor had no interest left in him at the time of the acknowledgment.

3. The real question for consideration is as to when were the mortgagee rights transferred from the original mortgagees to the transferees. A mutation does not create title. It is only for the purposes of keeping the revenue records up-to-date that a mutation is entered either at the instance of the party interested or even suo motu by the Patwari or other revenue officer on coming to know of some change having taken place in the ownership or other interest in land. The transfer is complete as soon as there is a real agreement to transfer the mortgagee rights for consideration and the consideration is paid and the possession of the properly in question transferred to the transferee.

Even if the transferor thereafter refuses to admit the true facts before the revenue officer and no mutation is sanctioned that would not adversely affect the title of the transferee. He can always file a declaratory suit and if he can prove that in pursuance of ah agreement for transfer the possession had been transferred and consideration paid, he can get the requisite declaration on the basis of which a mutation will be effected in due course.

It is clear therefore that a mutation by itself does not effect any transfer and consequently in the present case the transfer must be deemed to have taken place on the 9th of July, 1937, when the consideration was acknowledged to have been received and the possession transferred. In view of the above, therefore, I feel that any acknowledgment by the original mortgagees after the 9th of July, 1937, will not have the effect of extending time as against the transferees.

4. For the reasons given above, therefore, the judgment and the decree of the learned lower appellate Court must be confirmed and there is no force in this appeal which is hereby dismissed In the peculiar circumstances of the case, there will be no order as to costs in this Court


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