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Kishan Singh Vs. Mithu Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtPunjab and Haryana High Court
Decided On
Case NumberRegular Second Appeal No. 143 of 1976
Judge
Reported inAIR1984P& H422
ActsRedemption of Mortgages (Punjab) Act, 1913 - Sections 4; Code of Civil Procedure (CPC), 1908 - Order 34, Rule 7
AppellantKishan Singh
RespondentMithu Singh and ors.
Cases ReferredLachhman Singh v. Natha Singh
Excerpt:
.....in dispute, was an order without jurisdiction or within jurisdiction. 411: (air 1976 punj and har 310). 5. the matter does not rest here as strong reliance was placed by the learned counsel for the plaintiff-respondent on a single bench judgment of this court reported as kaka singh v. the collector in the present case had the authority to make a summary inquiry and on that inquiry, even if it be an elaborate one, an order is passed by him on merits, such an order is well within the scope of the act and hence within jurisdiction......case had the authority to make a summary inquiry and on that inquiry, even if it be an elaborate one, an order is passed by him on merits, such an order is well within the scope of the act and hence within jurisdiction. that being the position of taw to get such an order set aside, the suit must be filed within one year of its passing and a suit filed beyond that period will necessarily be barred by time in view of the provisions of s. 12 of the act read with art. 100, limitation act.8. in this view of the matter the appeal succeeds, the judgment and decree of the lower appellate court are set aside and that of the trial court dismissing the plaintiff's suit are restored with costs.s.p. goyal, j.9. i agree.10. appeal allowed.
Judgment:

J.V. Gupta, J.

1. This case came up for hearing before me sitting singly earlier, but since the question involved was not free from difficulty and was likely to arise in many cases, it was thought in the fitness of things that the matter be decided by a larger Bench. It is in these circumstances that this case has come up before this Division Bench.

2. The only point to be determined in this appeal by us is as to whether the order of the Collector (Exhibit P. 4), dt. 20th Aug. 1968, whereby he dismissed on merits the application filed by the plaintiff-mortagagor under S. 4, Redemption of Mortgages (Punjab) Act, 1913 (hereinafter referred to as 'the Act'), holding that the applicant (plaintiff) had failed to prove that he was the mortgagor qua the land, in dispute, was an order without jurisdiction or within jurisdiction. It is not disputed and is a common case of the parties that if the said order of the Collector was within jurisdiction, then the suit must be filed within one year thereof for the setting aside of the said order and in case it is held to be without jurisdiction, then the necessity of getting the same set aside as such did not arise.

3. To recapitulate, the facts are that on 4-6-1923, Bahal Singh mortgaged 37 kanals 10 marlas of land to Harnam Singh (now deceased) for Rs. 440/-. Mutation in this behalf, Exhibit P. 1, was sanctioned in the name of the said Harnam Singh. After the death of Bahal Singh, the estate was mutated in the name of his widow Shrimati Mallan vide mutation sanctioned on May 29, 1941, copy marked, Exhibit P. 2. The aforesaid Shrimati Mallan made a gift of her share in the joint estate to Mithu Singh vide gift deed dt. Aprl 8, 1958, copy marked, Exhibit D. 1. Thus, the plaintiff Mithu Singh became the mortgagor and Harnam Singh (deceased), the mortgagee. The present suit was filed for possession by way of redemption of the land measuring 36 kanals 8 marlas. The suit was contested inter alia on the ground that the mortgaged land was never gifted by Shrimati Mallan to Mithu Singh, plaintiff, as alleged. It was also pleaded that the plaintiff was estopped from filing the suit because the two applications made by him to the Collector for redemption of the land had been dismissed. It was further pleaded that the suit was barred by limitation. The trial-Court found that since the plaintiff had not filed the suit within one year of the order of the Collector dt. 20-8-1968, Ex. P. 4, the suit was barred by time. It was further found that the plaintiff had not been able to prove that he was the mortgagor, as alleged. Consequently, the plaintiff's suit was dismissed. In appeal, the learned District Judge reversed the said findings of the trial Court and came to the conclusion that the suit was within limitation as the order of the Collector, Ex. P. 4, was without jurisdiction and that no suit was necessary to be filed to set aside the same. The other finding of the trial Court was also reversed as it was held that the plaintiff was a mortgagor, as alleged in the plaint. As a result, the plaintiff's suit was decreed and a preliminary decree under O. XXXIV R. 7, Civil P. C., was passed. Dissatisfied with the same, the defendant came up in second appeal to this Court.

4. The main argument raised on behalf of the plaintiff-respondent is that the Collector under S. 9 of the Act had to make a summary inquiry regarding objections raised by mortgagee, but since the inquiry had been an elaborate one, the order of the Collector, therefore, becomes without jurisdiction. We are unable to accept this contention of the learned counsel for the plaintiff-respondent. If the Collector had the jurisdiction to make a summary inquiry, then simply because he has made the inquiry a little elaborate, does not render his order to be without jurisdiction. As observed earlier, S. 9 of the Act does contemplate that if any objection is raised on behalf of the mortgagee, the Collector may make a summary inquiry regarding the objection raised by the mortgagee and under S. 10 thereof, if on inquiry regarding the objection so raised by the mortgagee, the Collector is of the opinion that it bars redemption or has a sufficient cause for not proceeding further with the petition he shall dismiss the same. Thus the order of the Collector (Ex. P4) was passed under the said provisions of the Act and, hence was within jurisdiction. The matter might be different if the Collector did not decide the application on merits and rejected the same being premature as was the case before the Full Bench reported as Chanan Singh v: Smt. Majo and Smt. Banti, 1976 Pun. L. J. 411: (AIR 1976 Punj and Har 310).

5. The matter does not rest here as strong reliance was placed by the learned counsel for the plaintiff-respondent on a Single Bench judgment of this Court reported as Kaka Singh v. Hazura Singh, 1982 Punj. L. J. 134: (AIR 1983 Punj. and Har. 68). In that case the Collector dismissed the application of the mortgagor being barred by time. Such an order of the Collector was held to be a nullity and the learned Judge held that the same could be safely ignored and the question of filing a suit to set aside that order did not, therefore, arise. We are of the considered view that the said view taken by the learned Judge was erroneous as the order of the Collector would not be said to be without jurisdiction and unless that is so it cannot be said to be a nullity. There can be no gainsaying that the Collector was competent to decide as to whether the application under S. 4 of the Act was within limitation or not and once it is so the Collector had the jurisdiction to decide the application but dismissed the same erroneously as barred by time. Under the circumstances, therefore, it could not be held that the order was a nullity and could be ignored inasmuch as no suit need be filed within one year thereof to get the said order set aside. Thus the said judgment in the process has to be overruled.

6. The other judgment relied upon by the learned counsel for the plaintiff-respondent is Amar Singh v. Mehar Singh 1981 Punj. L. J. 20. However, that case is distinguishable as in that case the learned Judge held that the Collector did not pass the order as such on merits as he merely accepted the report of the Tehsildar, and, therefore, he could not be held to have decided the application as such himself. However, it was observed therein that if the Collector had decided the application for redemption on merits, then the principle of law as enunciated in Gangu v. Mahanraj Chand, AIR 1934 Lah. 384(FB). would be applicable and the suit had to be filed within one year of the decision of that application. In any case no proposition of law as is being canvassed by the learned counsel was laid down by the learned Single Judge in that case. The appeal was decided on the peculiar facts of that case and even the counsel has not been able to bring to our notice the order of the Collector that was passed in that case to appreciate the exact nature of the order passed.

7. In passing the learned counsel for the respondent referred to Lachhman Singh v. Natha Singh, AIR 1940 Lah. 401(F. B.), to contend that the power of a tribunal of special jurisdiction are circumscribed by the statute under which it is constituted. Thus argued the learned counsel that such Tribunals must act within their powers and so long as they do so, their orders whether right or wrong cannot be challenged except in the manner and to the extent prescribed in the statute and they cannot be questioned in Courts of ordinary jurisdiction. But where, and in so far as, their actions are in excess or in contravention of the powers conferred on them, they are ultra vires and are of no legal effect and obviously cannot claim immunity. There can be no dispute to the said proposition of law. In the present case it could not be successfully argued that the order passed by the Collector dismissing the application on merits was without jurisdiction because he had exceeded his jurisdiction by making an elaborate inquiry. Moreover, it will depend upon the language of each statute as to whether the particular order is within the scope of the Act or not, and, therefore, no general rule of law as tried by the learned counsel to be spelled out from the aforesaid Full Bench authority can be laid down. The Collector in the present case had the authority to make a summary inquiry and on that inquiry, even if it be an elaborate one, an order is passed by him on merits, such an order is well within the scope of the Act and hence within jurisdiction. That being the position of taw to get such an order set aside, the suit must be filed within one year of its passing and a suit filed beyond that period will necessarily be barred by time in view of the provisions of S. 12 of the Act read with Art. 100, Limitation Act.

8. In this view of the matter the appeal succeeds, the judgment and decree of the lower appellate Court are set aside and that of the trial Court dismissing the plaintiff's suit are restored with costs.

S.P. Goyal, J.

9. I agree.

10. Appeal allowed.


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