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Kanbi Ladha Ukeda Vs. Joshi Jestaram Gangaram and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberLetters Patent Appeal No. 28 of 1966
Judge
Reported inAIR1971Guj239; (1971)0GLR801
ActsTransfer of Property Act, 1882 - Sections 60; Limitation Act, 1908 - Schedule - Article 144; Code of Civil Procedure (CPC), 1908 - Sections 9; Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 - Sections 6
AppellantKanbi Ladha Ukeda
RespondentJoshi Jestaram Gangaram and ors.
Appellant Advocate Y.S. Mankad, Adv.
Respondent Advocate K.N. Mankad, Adv.
Cases ReferredMusamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai
Excerpt:
- - the suit for redemption filed by the plaintiffs, therefore, is perfectly maintainable against him. it was perfectly within his power to do so and he did so. mankad before us fail......(junior division) at mandvi for redemption of mortgage. it appears that in or about 1943 a.d. the suit lands were mortgaged by the plaintiffs to the defendant by an unregistered mortgage-deed.2. the defendant resisted the suit on the ground that the suit for redemption was not maintainable because the mortgage was created by an unregistered document. he also raised pleas under the bombay tenancy and agricultural lands (vidarbha region and kutch area) act, 1958 (hereinafter referred to as 'the tenancy act') and under the bombay inams (kutch area) abolition act, 1958 (hereinafter referred to as the 'inams abolition act').3. the learned trial judge raised the necessary issues, recorded the evidence and arrived at the finding that the plaintiffs are entitled to redeem the lands and,.....
Judgment:

S.H. Sheth, J.

1. The plaintiffs filed Regular Civil Suit No. 32 of 1959 in the Court of the Civil Judge (Junior Division) at Mandvi for redemption of mortgage. It appears that in or about 1943 A.D. the suit lands were mortgaged by the plaintiffs to the defendant by an unregistered mortgage-deed.

2. The defendant resisted the suit on the ground that the suit for redemption was not maintainable because the mortgage was created by an unregistered document. He also raised pleas under the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (hereinafter referred to as 'the Tenancy Act') and under the Bombay Inams (Kutch Area) Abolition Act, 1958 (hereinafter referred to as the 'Inams Abolition Act').

3. The learned Trial Judge raised the necessary issues, recorded the evidence and arrived at the finding that the plaintiffs are entitled to redeem the lands and, therefore, he passed in favour of the plaintiffs the preliminary decree for redemption.

4. The defendant appealed to the District Court at Bhuj.

5. The learned District Judge who heard the appeal at the admission stage found no substance therein and, therefore, summarily dismissed it.

6. Against that appellate order of summary dismissal of his appeal the defendant filed in this High Court Second Appeal No. 1443 of 1960. That appeal was heard by Mr. Justice Bakshi (as he then was) on 24th February 1966. He negatived all the contentions raised by the defendant in that appeal and dismissed the appeal with costs. He, however, granted certificate of fitness under Clause 15 of the Letters Patent and upon the strength of that certificate the defendant has filed the present Letters Patent Appeal.

7. In this Letters Patent Appeal Mr. Y.S. Mankad has raised three contentions before us. His first contention is that the suit for redemption is not maintainable because the transaction is evidenced by an unregistered mortgage document though it is compulsorily registrable. He has also raised a plea under the Tenancy Act and a further plea under the Inams Abolition Act.

8. So far as the first contention raised by Mr. Y.S. Mankad is concerned, it is not in dispute before us that the mortgage transaction in question took place on 27th April 1943 and that is evidenced by an unregistered mortgage document though it was compulsorily registrable under the Kutch Registration Act then in force in Kutch Area. The unregistered mortgage document which is otherwise compulsorily registrable cannot lay the foundation for a decree for redemption and, therefore, if that was the only evidence for passing the decree for redemption we would have upheld the contention raised by Mr. Y.S. Mankad. But in this case the defendant has admitted in his evidence that he entered into possession of the suit lands as mortgagee. In other words, according to him, they had been mortgaged to him at the time when the unregistered mortgage, document was executed. Having admittedly entered into possession of the lands in question as mortgagee it is not open to the defendant to raise the plea of ownership by adverse possession. His admission that he entered into possession as mortgagee, though the mortgage transaction is not evidenced by a registered document, means that he entered into possession of the suit lands with the consent and permission of the plaintiffs. Therefore, having entered into possession of the lands in question with the consent and permission of the plaintiffs it is not open to him to plead acquisition of ownership by possession. Therefore, the question of prescribing title to the suit property as owner by adverse possession does not arise in this case.

9. In 1943 on his own showing he entered into possession of the lands in question as mortgagee. The suit for redemption was filed in 1959 i.e. more than 12 years after the defendant admittedly entered into possession as mortgagee. What, therefore, he can prescribe at the end of 12 years is the limited title of a mortgagee and nothing more. If his title as a mortgagee, on his own admission, has been perfected at the end of 12 years we see no reason why decree for redemption cannot be passed against him and why suit for redemption against him is not maintainable. In the case of Rupa Nonia v. Ram Brich Pathak, AIR 1959 Pat 164 a Division Bench of the Patna High Court has taken the view that where a person enters into possession of immoveable property not on the assertion of any absolute title but on the basis of an unregistered rehan bond in his favour and remains in possession for more than 12 years, he acquires the status of a mortgagee by the doctrine of prescription and so even though the bond is not a valide transaction for want of registration, the mortgagor is entitled to redeem the property. In the present case the defendant, on his own admission, attained the status of a mortgagee at the end of 12 years from the first date on which he entered into possession of the lands as a mortgagee that is to say, within 12 years from 27th April 1943. He has, therefore, acquired the status of a mortgagee. Support is lent to this view of the Patna High Court by the observations made by their Lordships in the case of Padma Vithoba Chakkayya v. Mohd. Multani, AIR 1963 SC 70 (vide para 7 of the report). We are, therefore, of the opinion that on his own admission at the end of 12 years from 27th April 1943 the defendant attained the status of a mortgagee. The suit for redemption filed by the plaintiffs, therefore, is perfectly maintainable against him. We, therefore, see no reason to differ from the finding recorded in that behalf by the Court of Second Appeal

10. Mr. Y.S. Mankad has raised a plea of tenancy under the Tenancy Act. We do not think we can permit him to raise this plea. Otherwise also we find no substance in his plea. In paragraph 5 of his judgment the learned District Judge has in terms observed that the defendant did not press before him any contention other than the contention relating to the unregistered mortgage document. It is, therefore, clear that at the first appellate stage the defendant had given up his plea as to tenancy. It was perfectly within his power to do so and he did so. It was, therefore, not open to him to raise that plea in Second Appeal. However, Mr. Justice Bakshi in Second Appeal has briefly referred to his plea relating to tenancy and negatived it. We see no reason to differ from the finding recorded by Mr. Justice Bakshi in that behalf. In view of our finding on the first question it is clear that the defendant is a mortgagee in possession. A mortgagee in possession is one who is excepted from the category of persons lawfully cultivating lands belonging to others and, therefore, deemed to be tenants within the meaning of Section 6 of the Tenancy Act. The Civil Court has jurisdiction to decide whether Section 6 of the Act applies to the case or not. On finding that the defendant is a mortgagee in possession it has recorded the finding that Section 6 does not apply. We find no infirmity in that finding. On merits also all that the defendant can claim is that he was a tenant before he became a mortgagee in possession in 1943. Whether he was a tenant or not is a matter within the jurisdiction of the Civil Court as held by the Supreme Court in the case of Musamia Imam Haider Bax Razvi v. Rabari Govindbhai Ratnabhai, AIR 1969 SC 439. Therefore, both on merits and on the question of the jurisdiction of the Civil Court to decide the contention we find no infirmity in the finding recorded by Mr. Justice Bakshi.

11. The last plea which Mr. Y.S. Mankad has raised before us is a plea under the Inams Abolition Act. Before Mr. Justice Bakshi the contention was raised in the following terms as recorded by the learned Judge in his judgment.

'Mr. Shah also contended that by virtue of the Inams Abolition Act the title of the plaintiffs was abolished and, therefore, they had no right of suit.'

The learned Single Judge has in that connection observed that the question was not pressed before the learned District Judge. In that view of the matter he did not consider it in Second Appeal. If the question was not pressed before the learned District Judge and if it was not considered on that ground by the Court of Second Appeal we do not think we can permit in this Letters Patent Appeal that plea to be revived.

12. In the result, all the three contentions raised by Mr. Y.S. Mankad before us fail.

13. The appeal, therefore, fails and is dismissed with costs.

14. Appeal dismissed.


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