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Shero and ors. Vs. Chamaru and ors. - Court Judgment

LegalCrystal Citation
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 19 of 1954
ActsCode of Civil Procedure (CPC) , 1908 - Section 11; ;Transfer of Property Act, 1882 - Section 67
AppellantShero and ors.
RespondentChamaru and ors.
Appellant Advocate Ved Vyas Mahajan, Adv.
Respondent Advocate Des Raj Mahajan, Adv. for Respondent Nos. 1 and 2
DispositionAppeal dismissed
Cases ReferredThumbusawamy Moodelly v. Hossain Rowthen
.....-..........which was numbered as 32, was continued.on 10th sawan, 2004, chamaru and birbal filed yet another suit (suit no. 33) for possession of the land and recovery of rs. 60/- as price of malwa. the contention of chamaru and birbal was that dumsa and others were in possession of the land as mortgagees and since they (chamaru and birbal) had deposited the sum of rs. 120/- in accordance with the order of the revenue officer, the land stood redeemed and they were entitled to be put into possession. the suit was resisted on the same grounds, on which dumsa and others had resisted the redemption application and on the basis of which they had filed their own suit. the suits were disposed of by the subordinate judge of chamba by means of a single judgment (suit no. 32 was decreed while suit no. 33.....

Ramabhadran, J.C.

1. This is a second appeal by three defendants against the decision of the learned District Judge of Chamba, whereby he set aside the decision of the Subordinate Judge, Chamba, and granted the plaintiffs-respondents a decree for possession of the land in dispute.

2. The land in dispute, measuring 3 acres 6 kanals and 17 marlas, situated in village, .Chakla, belonged to Jeotia, father of respondents 1 and 2. On 23rd Phagun, 1960 B., Jeotia mortgaged this land with conditional sale ('ba bilwafa') in favour of one Mussadi in lieu1 of Rs. 120./-. The mortgage was for the period of one year and it was stipulated that in case the mortgage, amount was not repaid within that period, the mortgage would be considered as a sale. In point of fact, the money was not repaid within that period. On 20th Chet, 1963 B., Mussadi applied to the Collector for grant of a patta. The application was not opposed by Jeotia.. Patta was, however, granted to Mauza and Mali, who claimed to be of Jeotia's family and objected to the land passing to .a stranger. Consequently, they were granted the patta on payment of Rs. 120/- to Mussadi.

3. On 25th Magh, 2002 B., the plaintiffs, i.e. Chamaru and Birbal, sons of Jeotia, applied to the Collector for redemption of the land. The claim was opposed on the ground that the defendants were not mere mortgagees, but were the full-fledged owners of the land. Redemption was allowed by the revenue officer on 29th Sawan, 2003, on condition that the plaintiffs paid a sum of Rs. 120/- (the mortgage-money) to the defendants. The defendants, however, refused to deliver possession and filed two suits, seeking a declaration to the effect that they were the owners of the land and it was not redeemable. One suit was filed by Dumsa and Budhia and the other by the remaining defendants. Each suit was in respect of half share. Dumsa and Budhia allowed that suit to be' dismissed in default, while the other suit, which was numbered as 32, was continued.

On 10th Sawan, 2004, Chamaru and Birbal filed yet another suit (suit No. 33) for possession of the land and recovery of Rs. 60/- as price of malwa. The contention of Chamaru and Birbal was that Dumsa and others were in possession of the land as mortgagees and since they (Chamaru and Birbal) had deposited the sum of Rs. 120/- in accordance with the order of the revenue officer, the land stood redeemed and they were entitled to be put into possession. The suit was resisted on the same grounds, on which Dumsa and others had resisted the redemption application and on the basis of which they had filed their own suit. The suits were disposed of by the Subordinate Judge of Chamba by means of a single judgment (Suit No. 32 was decreed while Suit No. 33 was dismissed). A single appeal was filed by Birbal and Chamaru against the decision of the Subordinate Judge, although in the heading of the appeal, mention was made of the two suits, i.e. 32 and 33, and the names of parties were set out in full. There was, however, only one copy of the common judgment and a copy of the decree in only one suit, namely 33, was filed along with the memorandum of appeal.

Before the learned District Judge, an objection was raised to the hearing of the appeal on the ground that since no appeal had been filed from the decree of Suit No. 32, the appeal against the decision in No. 33 was barred by the principles of res judicata. This contention was, however, over ruled by the learned District Judge. In this Court, learned counsel for the appellants argued, vehemently, that the learned District Judge should have treated the appeal from the decree in Suit No. 33 as barred by res judicata. Learned counsel relied upon the following rulings:

4. (a)--'Zaharia v. Debi', 33 All 51 (FB) (A). There, the facts were that M and Z each filed a suit for pre-emption in respect of the same sale, each claiming a right of pre-emption preferential to that of the other. Each plaintiff was made a party defendant to the suit brought by the other. A judgment was delivered in the suit of M and a copy thereof was placed on the record as the judgment in the suit of Z; but a separate decree was framed in each suit. The suit of M was decreed: that of Z dismissed. Z appealed from the decree in his own suit, but not from the decree in the suit brought by M, which became final before Z's appeal was decided. It was held by a Full Bench of the Allahabad High Court that the appeal by Z was barred by the doctrine of res judicata.

5. (b)--'Haider v. Mt. Allahditti', AIR 1934 Pesh 116 (B). There, the facts were that in August 1922, four owners mortgaged certain property to two Kanjars, Haider and his daughter Mt. Allahditti. Iri December 1923, the daughter sold her share to Sheikh Abdul Karim. In May 1924, Abdul Karim sued the mortgagors and the mortgagee for half the mortgage money and rent due on the property which had been left in possession of the mortgagors. One of the mortgagors and Haidar, the mortgagee, raised the plea that Mt. Allahditti was a benami mortgagee and has no title to sell to Abdul Karim. After filing the pleas, Haider himself brought a suit against Abdul Karim and Mt. Allahditti for a declaration that he was the sole mortgagee, his daughter being merely benami. Both suits were tried together and each had a common issue, namely whether or not Mt. Allahditti was a benami mortgagee. The trial Court decided this issue in the negative. Abdul Karim was, therefore, given a decree for Rs. 3,000, half the mortgage money, with Rs. 100 rent. Haider's suit for a declaration was dismissed. The judgment in the two suits was pronounced simultaneously.

Haider appealed to the Divisional Court only against the dismissal of his own suit. The appeal was dismissed by the Additional Divisional Judge on the ground that the point at issue was res judicata by virtue of the decision in Abdul Karim's suit against which no appeal had been preferred. In the circumstances of that case, it was held, overruling earlier decisions of that Court, that the appeal was barred by the principles of res judicata, and, in doing so, the learned Judges pointed out that in case the appeal was entertained and eventually allowed, the trial Court would be confronted with two conflicting decisions on the same set of facts.

6. (c)--'Badaldas Jethmal Firm v. Gurdinornal Nurumal Firm', AIR 1939 Sind 329 (C). There, the facts were that the Subordinate Judge of Naushahro dismissed a suit to re-open accounts and the dismissal was upheld by the Assistant Judge, in appeal, on the ground that the subject-matter of the appeal was res judicata by reason of an earlier decision of a Subordinate Judge first class at Sukkur in a suit relating to the same subject-matter. Under these circumstances, the learned Judges upheld the plea of res judicata. Obviously, however, this ruling is not applicable here, because the two suits Nos. 32 and 33 were disposed by the Subordinate Judge of Chamba simultaneously and by one judgment.

7. (d) 'Mt. Zohra v. Raza Khan', AIR 1945 Pesh 35 (D). Here, the learned Judges remarked that: 'It is usual in India to consolidate suits where common questions of law or fact are involved. It is done under Section 151, Civil P. C. There is no statutory provision for consolidation. Where suits are so consolidated there is no reason why the Court should not deliver one judgment and prepare one decree-sheet in consolidated suits. But the Judge may deliver the main judgment in one suit and make a brief reference to it in the other and prepare two decree-sheets, one in each case. If in such circumstances, the. aggrieved party appeals from one decree and not from the other, it is a question of fact, which is to be decided on the merits of each case, whether the decree which has not been appealed against and has, therefore, become final in any way, deprives the appellant of the alleged rights or refuses him the relief which he directly or indirectly seeks to get on appeal. If it does, the appeal should be dismissed, for the decree which has become final acts as res judicata. If it does not, the appeal should be entertained.'

8. (e)--'Raghunandan Singh v. S. M. Soubhagya Sundari Devi', AIR 1948 Pat 191 (E). There, the facts were that the plaintiff instituted 225 suits for the rent. of different holdings against the tenants of those holdings, impleading the appellant in every suit as a co-sharer landlord. The plaintiff claimed eight annas of the rent, alleging that he was an eight anna co-sharer in the proprietary interest. The appellant, on the other hand, denied that the plaintiff had any title to the land and alleged that he himself was the sole landlord. The first Court held in favour of the plaintiff and decreed the claim. In one of the suits only, the appellant preferred an appeal, reiterating his claim to be the sole landlord. The appellate Court held that the matter was res judicata and dismissed the appeal. A second appeal to this Court was also dismissed. Following two earlier decisions of that Court, it was held that where a question of title is decided in two cases and an appeal is filed in one case only, leaving the other decision unchallenged, it is not open to the Court in appeal to investigate the matter again.

9. Learned counsel for the respondents cited--'Mt. Lachhmi v. Mt. Bhulli', AIR 1927 Lah 289 (FB) (F) and--'Shankar Sahai v. Bhagwat Sahai', AIR 1946 Oudh 33 (FB) (G), both Full Bench decisions, which have been relied upon by the learned District Judge. In the former decision, the facts were that two widows A and B were jointly in possession of certain land. Each sued the other for declaration that she (the plaintiff) was the exclusive owner of that land and that the other (defendant) had no right in it of any kind. Both suits were disposed of by a single judgment, which decided that A was the owner, but that B was entitled to hold possession of half the land, in lieu of maintenance. A separate decree. was drawn up in each suit, declaring the rights 'of the plaintiff according to that decision. B appealed against one of these decrees only, namely, the decree given in the suit in which she was the plaintiff. It was held by a Full Bench of the Lahore High Court, per Tek Chand J,, that the appeal should be continued. Tek Chand J., referred to 33 All 51 (FB) (A) and found himself unable to follow it. In the words of His Lordship:

'Section 11 applies to suits and not to appeals. But the general principles of res judicata will apply to appeals; and, in applying these general principles, the Courts are not hampered by any technical rules of interpretation such as govern the applicability of a statute.'

'Courts should ascertain the 'raison d'etre' ofthe doctrine and then apply it to the facts of aparticular case unfettered by technicalities. It is thespirit of the law, and not its letter, which is to bethe governing factor, the soul of the rule ratherthan its outward form.'

'The essence of the rule is that the two proceedings should be so independent of each other that the trial of one cannot be confused with the trial of the other. Where two suits, having a common issue are, by consent of parties or by order of the Court, tried together, the evidence being written in one record and both suits 'disposed of by a single judgment, it cannot be said that there have been two distinct and independent trials.'

'The test is whether the Judge has applied his mind to the decision of the issue involved in the two suits twice, or whether there has been in reality but one trial, one finding and one decision.' 'Where the same property is the subject-matter of two contemporaneous suits between the same parties, in which common issues are involved, and the two suits are tried together and disposed of by a single judgment but two decrees are prepared and an appeal is preferred against one decree only, the Court must be presumed to have consolidated the two suits and passed one judgment and the fact that there is an unappealed decree will not create an estoppel against the hearing of the appeal. The estoppel in such a case would not be created by the decree. It could only be created by the judgment.'

'Further, no anomaly or embarrassment in execution proceedings is likely to arise by there being two conflicting decrees on the records of the Court, for it is well settled that, if two or more conflicting decrees happen to be passed regarding the same property in two different proceedings, it will be the last one which will prevail.' (10) In 'AIR 1946 Oudh 33 (G)', a Full Bench of the former Chief Court of Oudh observed that: 'Where two suits between the same parties involving common issues are disposed of by one judgment but two decrees, and the appeal is preferred against the decree in one but it is either not preferred in the other or is rejected as incompetent, the matter decided by the latter decree does not become res judicata and it can be re-opened in appeal against the former.'

I am of the view that the principles laid down in AIR 1927 Lah 289 (F)', must be followed here. Applying the test laid down in that decision to the facts of the present case, it is obvious that there was only one trial, one finding and one decision.

The main point for determination was whether the mortgage had matured into a sale or not. 'Consequently, I concur with the view of the learned District Judge that the appeal preferred by Chamaru and Birbal to him was not barred by the principles of res judicata.

11. Coming to the merits of the appeal, learned counsel for the appellants invited my attention to the statements of Jeotia made on 20th Chet 1963, Ex. D. D. and loth Har, 1964 Ex. D. C., as well as objection of Mauja and Mali, Ex. D. A, I was, therefore, requested to infer that the mortgage had matured into a sale. Reliance was placed, In this connection, on--'Thumbusawamy Moodelly v. Hossain Rowthen', -1 Mad 1 (PC) (H), wherein their Lordships of the Privy Council held that:

'The essential characteristic of a mortgage by conditional sale is, that on the breach of the condition of re-payment the contract executes itself, and the transaction is closed and becomes one of absolute sale without any further act of the parties or accountability between them.'

12. As learned, counsel for the respondents rightly pointed out, this decision was given on 26-6-1875, i. e., before the Transfer of Property Act (IV of 1882) came into force. Learned counsel for the appellants suggested that the provisions of the Transfer of Property Act could not apply to this case, because they were applied to Himchal Pradesh only on 1-1-1950, vide the Merged States Laws Act, 1949, whereas the suit, which has given rise to this appeal, was filed in 2004 Bikrami (corresponding to 1947 A. D.). This argument is, prima facie, untenable, because Section 67, Transfer of Property Act, which defines the rights of a mortgagee, as against the mortgagor, so far as the right to maintain a suit for the foreclosure, or sale is concerned, is only procedural and as such, is retrospective in its operation and a mortgagee, claiming under a mortgage executed before the Act, can enforce his remedies according to the present section, even though the procedure before the Act was different.

I concur with the view of the learned District Judge that the expression 'sold'--to be found in Jeotia's statement referred to earlier--has been loosely used. It is not without significance that the original patta granted to the ancestors of the appellants has not been produced. A' mortgage, as has been rightly pointed out by the lower appellate Court, remains a mortgage until such time as the right of redemption is taken away. In the case of a mortgage by conditional sale, the mortgage does not automatically mature into a sale. As already stated, Section 67, Transfer of the Property Act confers upon the mortgagee, any time after the mortgage-money has become due and before a decree for the redemption of the mortgaged' property is made, a right to obtain from the Court a decree to the effect that the mortgagor is absolutely debarred to redeem his land or the property is sold. As already stated, redemption was ordered by the revenue officer on 29th Sawan, 2003.

13. In view of what has been said above, thelearned District Judge was right in coming to theconclusion that the equity of redemption had notbeen lost and the land stood redeemed by the sonsof Jeotia on depositing the sum of Rs. 120/-. Thedecision of the District Judge was right and cannot be disturbed. The second appeal, therefore,fails and is rejected with costs to the contestingrespondents 1 and 2.

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