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Phuli and ors. Vs. Bhag Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 2894 of 1982
Judge
Reported inAIR1984P& H310
ActsPunjab Restitution of Mortgaged Lands Act, 1938 - Sections 4, 5, 7, 8, 9, 10, 10A, 11, 12 and 13; Code of Civil Procedure (CPC), 1908 - Order 39, Rules 1 and 2; Punjab Land Preservation Act, 1900; Bombay Sales Tax Act - Sections 12
AppellantPhuli and ors.
RespondentBhag Singh and ors.
Cases ReferredSucha Singh v. Krishan Gopal
Excerpt:
.....exceed twice the amount of principal sum originally advanced under the mortgage, he shall make an order in writing that the mortgage be extinguished and if the mortgagee is still in possession, the mortgagor be put into possession of toe mortgaged land as against the mortgagee and that the title deeds, if any, be restored to the mortgagor. 431: (air 1955 punj 92), projecting a contrary view, are no more good law......and restrained the defendant-petitioners from dispossessing the plaintiff-respondent, from the suit land till the decision of the suit. bhag singh. and others filed a suit challenging the validity of the orders dated september 22, 1981 of the collector extinguishing the mortgage made by the predecessor-in-interest of the petitioners and orders dated february 19, 1982 of the commissioner rejecting the appeal against that order on the ground that the revenue authorities had no jurisdiction to pass the orders because the mortgage did not subsist on the day the application for restitution had been made. the predecessors-in-interest of the defendants had mortgaged with possession the suit land with the predecessor-in-interest of the plaintiffs before june 8, 1901, the defendants or their.....
Judgment:

1. This revision petition bas been filed by Smt. phulli and two others against the judgment dated August 3, 1982 of the learned Additional District Judge, Kurukshetra, whereby he allowed the appeal filed by the opposite side and restrained the defendant-petitioners from dispossessing the plaintiff-respondent, from the suit land till the decision of the suit. Bhag Singh. and others filed a suit challenging the validity of the orders dated September 22, 1981 of the Collector extinguishing the mortgage made by the predecessor-in-interest of the petitioners and orders dated February 19, 1982 of the Commissioner rejecting the appeal against that order on the ground that the Revenue Authorities had no jurisdiction to pass the orders because the mortgage did not subsist on the day the application for restitution had been made. The predecessors-in-interest of the defendants had mortgaged with possession the suit land with the predecessor-in-interest of the plaintiffs before June 8, 1901, The defendants or their predecessors-in-interest had not got the land redeemed and with the afflux of time, the plaintiffs had become its owners long before 1980 when the application for restitution under Section 4 of the Punjab Restitution of Mortgaged Lands Act, 1938 (for short 'the Act') was filed. Along with the plaint, an application under Rules 1 and 2 of Order 39 of the Civil Procedure Code was filed for issuance a an injunction, restraining the defendants from taking possession of the suit land. Defendants appeared. They filed written statements in the suit and inter alia took up an objection that the Civil Court had no jurisdiction, though they put in a reply to the application for stay. After hearing the learned counsel fox the parties, the learned trial Judge came to the conclusion that Section 12 of the Act created a bar to the Civil Court entertaining and trying a suit regarding any claim to enforce a right under a mortgage declared extinguished under the Act or to question the validity of any proceedings under the Act. He rejected the application for issuance of an injunction. The plaintiffs went up in appeal. The learned Additional District Judge accepted the appeal and set aside the order of the learned trial Judge and allowed the application of the plaintiffs and issued an injunction restraining the defendants from dispossessing the plaintiffs from the suit land during the pendency of the suit.

2. Shri Gurdial Singh the learned counsel for the petitioners, argued that the Act was enacted as a measure of metal justice. It is apparent from the aims and objects of the Act that certain mortgages entered into before June 8 1901, the date on which the Punjab Land Preservation Act, 1900, come into force, were still in existence in spite of the fact that the mortgage money had been realised many times over from the profits of the land. This legislative measure was introduced to make a provision for the termination of such mortgages on payment of reasonable compensation when necessary and for the restitution of the possession of the land mortgages. This legislative measure should receive liberal interpretation at the hands of Courts.

3. A brief survey of the different provisions of the Act which determine the controversy raised in this revision petition:--Section 2 of the Act provides that notwithstanding anything contained in any enactment for the time-being in force, the Act will apply to any subsisting mortgage of land, which was effected prior to June 8, 1901. Section 3 thereof defines certain expressions used in the Act. Section 4 lays down the procedure for making an application of possession of the land mortgaged. Under Section 5 of the Act, on receipt of an application under Section 4 thereof the Collector has, after such inquiry, as may be prescribed by the rules, to record an order in writing, with reasons stating whether the mortgage in question is one to which the Act applies. Section 6 of the Act empowers the Collector to dismiss the application if he finds that the mortgage regarding the possession of which restitution is sought is not the one to which the Act applies. Under Section 7 of the Act, if the Collector comes to a finding that the mortgage is one to which the Act applies and that the value of benefits enjoyed by the mortgagee while in possession equal or exceed twice the amount of principal sum originally advanced under the mortgage, he shall make an order in writing that the mortgage be extinguished and if the mortgagee is still in possession, the mortgagor be put into possession of toe mortgaged land as against the mortgagee and that the title deeds, if any, be restored to the mortgagor. Sub-section (2) of this section does not concern us in this case. Section 10 provides for an appeal from an original or appellate order to the Commissioner when the order is made by the Collector and to the Financial Commissioner when the order is made by a Commissioner. By Section 10-A of the Act, the Financial Commissioner has been invested with powers of revision. Section 11 of the Act provides the period for limitation for filing the appeals. Section 12 of the Act, which is material for the purposes of this case is reproduced in extenso:--

'Section 12: No Civil Court shall have Jurisdiction to entertain any claim to enforce any right under a mortgage declared extinguished under this Act, or to question the validity of any proceeding tinder this Act.'

Section 13 of the Act authorizes the State Govt. to make rules for giving effect to the objects of the Act.

4. Prom a perusal of the different provisions of the Act, it is clear that the provisions of this Act apply to those mortgage of lands which were effected prior to June 8, 1901. Under Section 5 of the Act, the Collector Is obliged, after such, !Inquiry. as may be prescribed to record a finding as to whether the mortgage is one to which the Act applies. In other words, the Collector has to determine at the threshold as to whether the mortgage in relation to which the application for restitution of possession has been given, subsists on the date when the application was made or not. This exclusive jurisdiction has been conferred by the legislature on the Collector. In-view of the express mandate of Section 12 of the Act the Civil Court cannot question the validity of the order passed by the Collector. These are under Section 5 of the Act. holdings that the Act applies to the mortgage in question or extinguishing the mortgage under Sections 7, 8 and 9 of the Act. The jurisdiction has been taken away by clear, express and unambiguous words. In the present suit, the main point raised is that since the mortgage had been extinguished because of the efflux of time, it was not subsisting, oh the date the Application. under Section 4 of the Act was filed. The question as to whether the mortgage subsists or not has beer expressly entrusted to the exclusion of the Civil Court to the Collector. While deciding this issue, even if the Collector commit an error and gives a wrong finding, the Civil Court cannot assume jurisdiction to entertain a suit, challenging the validity of that order. It is not necessary to dilate on the question any further because the matter stands concluded by a seven-judge Bench of the Final Court in Kamla Mills Limited v. State of Bombay, AIR 1965 SC 1942. In that case, the facts were that Kamla Mills Limited owned a textile mill at Bombay. It carried on business of manufacture and sale of textile cloths. During the relevant period, it was registered as a dealer under the provisions of Bombay Sales Tax Act. During the particular period, it sold goods inside and outside the then State of Bombay. Textile value of the goods sold by the appellant outside the State of Bombay was Rs. 40,20,623-12-0 and Rs. 1.08,946-14-0. On the said sale of Rs. 40,20,623-12-0. general sales tax of Rs. 61,885-12-0 was levied whereas on the sale of Rs. 1,08,946-14-0. the sales tax of Rs. 3,301-8-0 was levied. Thus the total, sales tax levied in respect of the outside sales during the relevant period was Rs. 65,187-4-0. On December 20, 1956, the appellant instituted a suit, chaining to recover the abovementioned amount from the State on the ground that. it had been illegally levied against it. According to the. plaintiff, the illegality of the impugned assessment, levy, impositions and collection was discovered by it. soon after the Supreme Court pronounced its judgment in Bengal Immunity Co. Ltd. v. State of Bihar. AIR 1955 SC 661, on September 6, 1955. The defendant resisted the claim of the plaintiff on several grounds. One of them was that the Court had no jurisdiction to entertain the suit. Section 20 of the Act created a bar against the institution of the present suit. The learned single Judge of the Bombay High Court, who tried the suit held that Section 20 of the Act was a bar to the institution of the suit and dismissed it. The Division Bench affirmed the view taken by the learned single Judge. and dismissed the appeal. The appellant then went up in appeal to the Supreme Court by special leaves Section 12 of the Bombay Act provided that no assessment made and no order passed under the Act or rules made thereunder shall be called in question in any Civil Court. It was held that S. 20 of the Act protects assessments made under the Act or the rules made, thereunder by. the appropriate authorities. There can be little doubt that the assessment made cannot mean the assessment properly or correctly made. The said Section 20. takes in all assessments made or purported to have been made under the Act. In its plaint,, the appellant is undoubtedly calling in question the assessment order made against it and such a challenge to the assessment order is plainly prohibited by Section 20 of the Act. An order. of assessment, though erroneous, and though based on an incorrect finding of fact is nevertheless as order of assessment within the meaning of Section 20 of the Act, which interim provides that it will not he called in question in any Civil Court. So assuming; though not admitting that the finding of the Collector regarding the subsistence of the mortgage was erroneous, the Civil Court's jurisdiction was still to be barred in view of the clear language, of Section 12 of the Act. The observations in Des Raj v. Ram Singh, (1954) 56 Pun LR. 431: (AIR 1955 Punj 92), projecting a contrary view, are no more good law. In, the view. I have taken, 1 am supports by a recent decision of A. S. Bains, J. in Sucha Singh v. Krishan Gopal, 1976 Rev LR 467, wherein the learned Judge has observed that it was not open to the Civil Courts to go into the validity of the order extinguishing the mortgage passed by the Collector and the finding by them that the order of the Special. collector was a nullity, could not be sustained.

5. The learned lower Appellate Court has acted in material irregularity in holding that the civil court. prima facie had jurisdiction to entertain the suit. It seems that the decision in Kamla Mills' case (AIR 1965 SC 1942) (supra) was not brought to the notice of the learned Judge;

6. Consequently, I allow this revision petition and set aside the order of the learned Additional District Judge, restraining the defendants from dispossessing the plaintiffs. Since there has bees no opposition, there shall be no order as to costs.

7. Revision allowed.


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