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Chunnia and anr. Vs. Keshri Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Tenancy
CourtRajasthan High Court
Decided On
Case NumberD.B. Civil Writ Petition No. 557 of 1981
Judge
Reported in1981WLN(UC)137
AppellantChunnia and anr.
RespondentKeshri Mal and ors.
DispositionPetition dismissed
Excerpt:
.....law of limitation in the former state of mewar for filing such a suit was 60 years, and, as the land was mortgaged with possession with keshri mal by dhula and mod a in samvat year 1986, the period for filing a suit for redemption of the mortgage was upto samvat year 2046 and the suit filed in the year 1972 was clearly within limitation, the above contention has no force, because under the law of limitation in the former state of mewar a suit for redemption on the basis of a registered mortgage deed could be filed within 60 years from the date when the cause of action accrued, but, if such a suit was based on an unregistered mortgage deed, the limitation for filing suit for redemption was 15 years from the date when the cause of action accrued. as the petitioners admittedly instituted..........the mortgagor free from all encumbrances. if the mortgagee does not deliver the possession of the land mortgaged or refused to deliver it, he will be ejected as a trespasser under section 183 of the act and will have to pay penalty as provided in that section to the mortgagor for remaining in possession after the period of redemption. in the instant case, the usufructuary mortgage of the disputed land was admittedly made before the commencement of the act, i.e. in the year samvat 1986. hence, by virtue of sub-section (4) of section 43 of the act it shall be deemed to have been satisfied in full without any payment whatsoever by the mortgagor upon the expiry of 20 years from the date of execution thereof as no specific period is proved to have been mentioned in the mortgage deed. upon.....
Judgment:

K.D. Sharma, C.J.

1. This is a writ petition filed by the Chunnia and Mingu against Keshri Mal and others under Article 226 of the Constitution of India for issuance of an appropriate writ, order or direction in the nature of certiorari for quashing or setting aside the orders marked Annexures 2, 3 & 4 and for decreeing the suit of the petitioners for possession of the land in dispute as well as mesne profits,

2. The relevant facts giving rise to this writ petition may be briefly stated as follows : The petitioners vide registered sale deed dated February 6, 1962, purchased agricultural land including land comprised in Khasra No. 247 measuring 4 Bighas and 13 Biswas situated at village Malawada from Dhula and Moda Meenas, who were members of Scheduled tribes. The land comprised in Khasra No. 247 had been mortgaged with possession by Dhula and Moda, vendors to non petitioner No. 1 Keshri Mal and so a right to ledeed the mortgaged-land was given to the purchasers, i.e. the petitioners at the time of execution of the sale-deed. Accordingly, the petitioners tendered mortgage money to Keshri Mal non-petitioner No. 1, but the latter refused to accept it. Hence, a notice was served on him on May 29, 1971 but inspite of written notice Keshri Mal did not accept the money and deliver the possession to the petitioner. The petitioners, therefore, instituted a suit for possession and mesne profits against Keshri Mal in the court of the Assistant Collector, Niinbahera In this suit Sheo Raj (now deceased) and his son Ghisa Lal were also impleaded as derendant3 because these persons were in actual possession of the disputed land at the time of filing of the suit. The Assistant Collector, after framing issues and recording the evidence of the parties decreed, the suit on July 30, 1976 and in pursuance of the decree, the petitioners got possession of the land in dispute on August 20, 1976. The legal representatives of Sheo Ram and his son Ghisa Lal, however, preferred an appeal before the Revenue Appellate Authority, Udaipur against, the judgment and decree of the Assistant Collector, Nimbahera, dated July 30, 1976, The Revenue Appellate Authority framed an additional issue regarding limitation on December 1, 1977 and remitted that issue to the Assistant Collector, Nimbahera, for giving his finding thereon. The Assistant Collector, thereupon, gave his finding on the issue of limitation against the petitioners and the Revenue Appellate Authority accepted the finding and dismissed the suit of the petitioner on the ground that it was barred by time. Aggrieved by the judgment of the Revenue Appellate Authority, the petitioners filed a second appeal in the Board of Revenue for Rajasthan, Ajmer. The Board of Revenue, Ajmer, vide its judgment dated January 21, 1981, summarily dismissed the appeal. Ghisa Lal and other non-petitioners, thereafter, obtained possession of the land under controversy by way of filing an application for restitution. Hence, the petitioners, being aggrieved by the judgments marked Annexures 2, 3 and 4, have invoked extraordinary jurisdiction of this Court by way of this writ petition.

3. We have gone through the writ petition and the documents enclosed therewith and heard Mr. MM, Singhvi, learned Counsel for the petitioners. In cur opinion, this writ petition is not worth admission for the reasons mentioned below.

4. It has been strenuously urged before us by Mr. M.M. Singhvi, learned Council for the petitioners, that the Assistant Collector, Revenue Appellate Authority and finally the Board of Revenue for Rajasthan committed an error apparent on the face of the record in dismissing the suit of the petitioners for possession of the land in dispute and mesne profits on the ground that it was barred by limitation. According to the submission of Mr. M.M. Singhvi the limitation prescribed by the Law of Limitation in the former State of Mewar for filing such a suit was 60 years, and, as the land was mortgaged with possession with Keshri Mal by Dhula and Mod a in Samvat year 1986, the period for filing a suit for redemption of the mortgage was upto Samvat year 2046 and the suit filed in the year 1972 was clearly within limitation, The above contention has no force, because under the Law of Limitation in the former State of Mewar a suit for redemption on the basis of a registered mortgage deed could be filed within 60 years from the date when the cause of action accrued, but, if such a suit was based on an unregistered mortgage deed, the limitation for filing suit for redemption was 15 years from the date when the cause of action accrued. In the instant case, the petitioners could not succeed in showing that the land in dispute was mortgaged with possession to Keshri Mal in Samvat year 1986 by way of a registered mortgage-deed. It appears, on the other hand, that the mortgage deed was not even produced by Keshri Mal in the revenue courts, nor any copy thereof was brought on the record by the petitioners. If the mortgage deed was a registered one, the petitioners ought to have produced certified copy thereof in the revenue courts or should have called upon the mortgagee to produce the original and, in case, the mortgagee declined to produce it, the petitioners should have led secondary evidence to prove the fact that it had been duly registered. In the absence of any evidence that the mortgage deed was a registered one, the revenue courts rightly held that the period of limitation for a suit for redemption based on an unregistered mortgage deed was 15 years from the date of accrual of the cause r faction under the Law of Limitation in former State of Mewar In this view of the matter, the petitioner's suit for possession of the land in dispute with mesne profits could be filed upto Samvat year 2001, i.e. within 15 years from Samvat year 1986 in which year the land was mortgaged with possession to Keshri Mal by the mortgagors. As the petitioners admittedly instituted the suit in the year 1972, it was clearly barred by time because of having been filed beyond 15 years.

5. Mr. M.M, Singhvi further contended that the Rajasthan Tenancy Act, 1955, hereinafter referred to as the Act, contained important provisions regarding rights, duties and liabilities of mortgagees of agricultural land and the amendments made in Section 43 thereof in the years 1975 and 1976 have drastically curtaled the rights of the mortgagee and have imposed a duty upon him to deliver possession of the mortgaged property within 3 months from the date of commencement of the Rajasthan Tenancy( Amendment) Act, 1976. The above contention also is without substance, because Sub-section (4) of Section 43 of the Act clearly provides that a usufructuary mortgage of land made before the commencement of the Act shall, upon the expiry of the period mentioned in the mortgage deed or twenty years from the date of execution thereof, whichever period is less, be deemed to have been satisfied in full without any payment whatsover by the mortgagor and the mortgaged land shall be redeemed and the possession thereof shall be delivered to the mortgagor free from all encumbrances. If the mortgagee does not deliver the possession of the land mortgaged or refused to deliver it, he will be ejected as a trespasser under Section 183 of the Act and will have to pay penalty as provided in that section to the mortgagor for remaining in possession after the period of redemption. In the instant case, the usufructuary mortgage of the disputed land was admittedly made before the commencement of the Act, i.e. in the year Samvat 1986. Hence, by virtue of Sub-section (4) of Section 43 of the Act it shall be deemed to have been satisfied in full without any payment whatsoever by the mortgagor upon the expiry of 20 years from the date of execution thereof as no specific period is proved to have been mentioned in the mortgage deed. Upon calculation, the period of 20 years expired in Samvat year 2006. If upon expiry of the period of 20 years Keshri Mal mortgagee did not deliver possession of the land in dispute, to the mortgagors he could be ejected by the latter as a trespasser under Section 183 of the Act within 12 years from Samvat year 2000 The mortgagors or the petitioners, should have purchased land in dispute from them, did not file a suit for ejectment of Keshri Mal as a trespasser under Section 183 of the Act within 12 years from Samvat year 2006 and so the petitioners' suit filed in the year 1972 (corresponding to Samvat year 2028) was clearly barred by the period of limitation. Consequently, we do not find any error apparent on the face of the record in the judgments of the Assistant Collector, the Revenue Appellate Authority and the Board of Revenue.

6. Another contention put forward by Mr. M.M. Singhvi before us is that under the law of limitation in the former State of Mewar, the plea of limitation could be raised by the defendants in a suit at the initial stage of filing the written statement and, as in the instant case no such plea was raised by the defendants-non-petitioners, they could not be permitted to raise it at the belated stage The above contention also is devoid of force, because the plea of limitation goes to the root of the case and can be raised at any stage. Apart from this, it is the duty of the court, in which the suit is filed, to see whether the suit is filed within the period of limitation. Likewise, the contention of Mr. M.M. Singhvi that the provisions of Sub-sections (4A),(4B),(4C),(4D) and (4E) of Section 43 of the Act are applicable to the facts of the present case, is wholly untenable, because the applicability of these provisions is attracted only to a usufructuary mortgage of any land which has been made after the commencement of the Act and which is subsisting on the date of commencement of the Rajasthan Tenancy Amendment Ordinance, 1975. As stated earlier, in the instant case the usufructuary mortgage of the disputed land was made before the commencement of the Act and, therefore, such a usufructuary mortgage is governed by the provisions of Sub-section (4) of Section 43 of the Act & the provisions Sub-sections (4A), (4B), (4C), (4D) and (4E) of the Act are clearly inapplicable to it.

7. The result of the above discussion is that the writ petition filed by the petitioners has no force and in hereby dismissed summarily.


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