TUNDAL (DEAD) BY L.RS. AND ORS.versusMUNSHI AND ORS.

                   TUNDAL (DEAD) BY L.RS. AND ORS.                                   A
                                        v.
                             MUNSHI AND ORS.

                              AUGUST 18, 2006

        [ARlJITPASAYAT ANDLOKESHWARSINGH PANTA,JJ.]                                  B


      Punjab Redemption of Mortgages Act, 1913-Sections 4 and 12-Suit
for redemption of mortgage property-Dismissal of, by Collector-Thereafier,
another suit filed beyond one year, decreed in favour of mortgagor-                  C
Mortgagee's case that suit dismissed on merits by Collector, as such instant
suit barred by limitation-On appeal held: Findings of Collector become
conclusive between mortgagee and mortgagor if no suit is filed within one
year and order cannot be assailed-Section 12 prohibits substance of order
and not the form-Substance of order determines the application of period
of limitation-Substance of order by Collector reveals that order not recorded        D
on merits-Thus, it cannot be said that suit was barred by limitation-Orders
of courts below not perverse or illegal-Limitation Act, 1963.

      Owner of the agricultural land mortgaged the land with possession with
the original appellant-mortgagee for consideration of certain amount. The
owner-mortgagor died and her heirs, respondent-mortgagors filed suit for             E
redemption under section 4 of the Punjab Redemption of Mortgagors Act,
1930. Collector dismissed the suit since the parties did not place sufficient
evidence on record. Two of the respondents who acquired rights in the suit
land, filed suit for redemption after one year. Trial Court decreed the suit
subject to payment to appellant no. I. Appellant then filed an appeal which          F
was dismissed. Regular Second Appeals were also dismissed. Hence, the
present appeals.

      Appellant-mortgagees contended that the order of the Collector
dismissing the suit filed under section 4 was based on merits after
scrutinizing the entire evidence placed on record, as such the suit was barred       G
by limitation since it was not filed within one year of the dismissal of the suit.

     Respondent-mortgagors contended that both the First Appellate Court
and High Court held on the assessment of the entire material on record that
the Collector has not recorded any findings on the merits of the case.
                                      621                                            H
    622                     SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A           Dismissing the appeals, the Court

           HELD: l. l. If no suit was filed within a period of one year, the findings
    of the Collector become conclusive between the mortgagee and the mortgagor
    and it is not open to assail the order of the Collector after one year in a suit
    of foreclosure or sale by the mortgagee. Section 12 of the Punjab Redemption
B   of Mortgagors Act, 1930 prohibits the substance of the order and not the form
    in which the order is couched by the Collector. Even if by the order, the petition
    is dismissed not the form of the order but the substance will determine the
    application of the period of limitation prescribed by the Limitation Act.
                                                                           (627-D-F(

C         1.2. The net substance of the order of the Collector reveals that the said
    order was not recorded on merits. Thus, it cannot be said that the suit was
    barred by limitation as the order of the Collector was not challenged by the
    respondents within one year. Therefore, there is no perversity or illegality i'I
    the judgment and decree of the courts below warranting interference.
                                                                             [627-F[
D
         Harbans Singh and Anr. v. Guran Ditta Singh and Anr., (19911 2 SCC
    523 and Shiv/al & Ors. v. Sultan & Ors., [1969[ 2 SCC 883, relied on.
            CIVIL APPELLATE JURISDIClTON: Civil Appeal Nos. 14185-14188 of
    1996.

E         From the Judgment and Order dated 5. !.1995 of the High Court of
    Punjab and Haryana at Chandigarh in R.S.A. Nos. 724/1985, 1740/1990, 725/
    1985 and 307/199!.

            Madhu Tewatia and Ranbir Singh Yadav for the Appellants.
F        Arvind Kumar, Poonam Prasad and Chander Shekhar for the
    Rtspondents.

            The Judgment of the Court was delivered by

          LOKESHWAR SINGH PANT A, J. These appeals are directed against
    the common judgment and decree dated 5th January, 1995 passed by the
G   learned Single Judge of the High Court of Punjab and Haryana dismissing
    Regular Second Appeal Nos. 724/1985, l 740/1990, 725/1985 and 307/199 l filed
    by the appellants-defendants against the judgment and decree of the
    Additional District Judge (ll), Faridabad. The Additional District Judge has
    dismissed the Civil Appeal No. JO I of 1983 preferred by original defendant-
H   appellant Tundal against the judgment dated 7th June, 1983 of Sub-Judge
          TUNDAL(DEAD)BYLRS. r. MUNSHI(LOKESHWARSINGH PANTA,J.]            623

First Class, Palwal, decreeing the Civil Suit No. 232 of 1980 instituted by the   A
plaintiffs-respondents for possession of the land by way of redemption. We
have taken up and heard these appeals together as they involve same and
identical issues and they shall stand disposed of by th is common judgment.

       Brief facts giving rise to the filing of the appeals are that one Smt.
Mohori, widow of Dan Sahai, was the owner in possession of the agricultural B
land comprising Khasra Nos. 871, 872, 873, 900, 90 I, 903 and 907 of Khatoni
No. 21 and Khasra No. 576 ofKhatoni No. 22, Khewat No. 7 admeasuring 14
bighas, 9 biswas situated in village Raidaska, Tehsil Palwal, District Faridabad.
During consolidation proceedings, lands measuring 45 kanals 8 marlas was
allotted to S,mt. Mohori in lieu of old khasra numbers which was mortgaged C
by Smt. .Mohori with possession with original appellant-defendant No. I
Tundal (now dead), vide registered Mortgage Deed dated 18th September,
1951 registered on 25th September, 1951 for an ostensible consideration of Rs.
2,200/- which amount was reduced to Rs. 825/- in the decree of Civil Court
and pursuant to the said decree mutation of the land was sanctioned on 2nd
April, 1957.                                                                      D
       Smt. Mohori died in the year 1967 and the mutation of the inheritance
was sanctioned in favour of the heirs mentioned in the pedigree table given
in paragraph 5 of the plaint. Hukam Singh-original plaintiff No. 6 and Dal
Chand-plaintiff No. 7, respondents herein, have acquired rights in the suit
land on the basis of decree of Civil Court in Suit No. 200 dated 30th March, E
1974 in respect of the sh'lres of Khillu, Rumali - widow, Ramvati - daughter
and Pitamber son of Giasi. After the acquisition rights, Khillu was left with
l /6th share whereas Rumali, Pitamber, Ramvati got I /6th share each. The
mutation of their shares was entered in the Revenue Record, which was
sanctioned on 12th October, 1974 by the competent authority.                  p
      The plaintiffs 6 and 7 filed Civil Suit No. 565/1974 for the redemption
of the suit land, which came to be dismissed on 13th December, 1976 by the
Revenue Court. The appellant No. I-defendant No. I in the present civil suit,
was reluctant to release the suit land after receipt of the amount of mortgage,
so the plaintiffs-respondents instituted the present suit impleading defendant    G
Nos. 2-9 as proforma defendants-appellants herein as they were not available
at the time of filing of the earlier suit.

      The suit was resisted and contested by original defendant-appellant
Tundal (now dead). The other defendants-appellants 3 to 5 and 7 to I 0 in their
written statement have admitted the claim of the plaintiffs-respondents and H
    624                     SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A also pleaded that they are entitled to get their respective shares in the suit
    land after redemption. The original defendant-Tundal raised preliminary
    objections inter alia that tht: mortgaged amount was Rs. 2,200/- and not Rs.
    825/-; the plaintiffs or defendant Nos. 2 to 9 are not legal heirs of Smt. Mohori
    and as the plaintiffs' suit under Section 4 of the Punjab Redemption of
    Mortgages Act, 1913 (for short "the Act") was dismissed by the Court
B   therefore, the right of redemption of the plaintiffs had extinguished and, the
    suit of the plaintiffs was liable to be dismissed. The main defence pleaded by
    the defendant No. I was that the suit was time barred as the order of the
    Collector under the Act was recorded on 30th July, 1974 and that the present
    suit was filed after the stipulated period of one year. On the pleadings of the
C   parties, the Trial Court framed as many as ten issues, which were reproduced
    by the learned Single Judge in his judgment and we do not think it necessary
    to reproduce them again for unnecessarily burdening the record. The learned
    Trial Court passed preliminary decree in favour of the plaintiffs for redemption
    of the suit land subject to the condition of the payment of Rs. 825/- to
    defendant appellant No. I on or before 28th July, 1983.
D
          Being aggrieved against the judgment and decree of the Trial Court,
    defendant No. I preferred appeal which came to be dismissed by the First
    Appellate Court confirming the judgment and decree of the Trial Court.
    Defendants-appellants filed four Regular Second Appeals before the High
E   Court, which came to be dismissed by a single judgment and decree impugned
    in these appeals.

          We have heard Ms. Madhu Tewatia, learned counsel for the appellants
    and Mr. Arvind Kumar, learned counsel for the respondents, who have taken
    us through the relevant material on record. Ms. Madhu Tewatia, learned
F   counsel for the appellants submitted that the order of the Collector dated 13th
    July 1974 dismissing the suit of the plaintiffs filed under Section 4 of the Act
    was based on merits after scrutiny of the entire evidence placed on record
    by both the parties. As such, the present suit was barred by limitation, as the
    suit was not filed within one year of the dismissal of the petition by the
    Collector for redemption of the ·nortgage land.
G
        In opposition to the contention of the learned counsel for the appellants,
  the learned counsel for the respondents-plaintiffs urged that since all the
  three courts below have recorded concurrent findings of fact on the legal
  issues as well as the factual scenario of the controversy, therefore, this Court
H in exercise of its jurisdiction under Article 136 of the Constitution of India will
          TUNDAL(DEAD)BY LRS.1•. MUNSHl[LOKESHWARSINGHPANTA,J.)           625

not be obliged to interfere with the well-reasoned judgments of the courts       A
below. The First Appellate Court and the High Court have categorically held
on the assessment of the entire material on record that the Collector in
exercise of the jurisdiction under the Act has not recorded any finding on the
merits of the case.

       We have given our thoughtful consideration to the respective B
contentions of the learned counsel for the parties and examined the judgments
of the courts below. Order dated 30th July 1974 recorded by the Co!lector in
the redemption proceedings is placed on record as Exhibit P8. It is not in
dispute that in the redemption proceedings filed by Khillu and others under
Section 4 of the Act, parties went to trial and led their respective evidence C
in respect of their claims and counter claims. The Collector in his order had
noticed the various respective contentions raised by the parties in respect to
the notified shares of the plaintiffs' rights, if any, and also what will be the
effect of non-impleadment of some of the persons who have got rights in the
property in dispute and further whether the amount of mortgage was Rs.
2,200/- as stated by the appellants-defendants or Rs. 825/- as pleaded by the D
respondents-plaintiffs. After noticing their contentions/pleas raised by the
parties, the Collector came to the conclusion that since sufficient evidence
had not been laid by the parties, no finding could be recorded on the merits
of the case. Accordingly, the Collector came to the conclusion that the
petition for redemption of mortgage of the property in the present fonn would E
not succeed and so the same was dismissed.

      To appreciate the contentions of the learned counsel for the parties, we
propose to refer to the relevant provisions of the Act. The scheme of the Act
envisages that if petition for redemption of the mortgage of the property is
presented before the Collector being a competent authority he shall deal with p
the matter judiciously. Under Section 4 of the Act, the petitioner has to state
the particulars of the land mortgaged, the amount of mortgage and the factum
of the deposit of the mortgaged amount with the Collector. Section 5 provides
that as and when the petitioner has been duly presented and the deposit has
been made, the Collector has to issue summons to the mortgagees to appear
on a date to be specified therein. Under Section 8, the Collector has to enquire G
from the mortgagee whether he admits that the petitioner is entitled and
whether he is willing to accept the sum in deposit in full payment of the
mortgage debt and in case the mortgagee is in possession whether he is
willing to surrender possession of the mortgaged property, If the mortgagee
replies in the affinnative, the Collector is to pass the order as laid down in H
    626                     SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A Section 6(a), (b), (c) and (d) of the Act. In case, the mortgagee admits the
    petitioner's title to redeem but demands payment of sum larger than pleaded
    by the petitioner, the Collector has to enquire from the petitioner whether he
    is willing to pay larger amount and in case the petitioner answers in affirmative,
    the Collector shall fix a period not exceeding 30 days within which the
    petitioner is to deposit the difference and in case the petitioner makes such
B   a difference good, the Collector is to make order as laid down in Section 6(a),
    (b), (c) and (d) of the Act. In default of deposit of such amount within the
    prescribed time, the Collector is to dismiss the petition. In case the mortgagee
    raises objection on any ground other than the amount of deposit or if the
    petitioner is not willing to pay the sum demanded by the mortgagee, the
C   Collector can either dismiss the petition or make a summary inquiry regarding
    the objection raised by the mortgagee as contemplated under Section 9 of the
    Act. Thus, Section 9 of the Act envisages an inquiry by the Collector with
    regard to the objection raised by the mortgagee. As noticed above, in the
    pre~ent case, the net substance of the order of the Collector dated 30th July,
    1974 reveals that the said order was not recorded on merits. Thus, the
D   contention of the learned counsel for the appellant that the suit was barred
    by limitation as the order of the Collector was not challenged by the plaintiffs
    within one year does not merit acceptance. Ms. Madhu Tewatia, learned
    counsel for the appellants, has made reference to paragraph 6 of the judgment
    of this Court in Harbans Singh and Anr. v. Guran Ditta Singh and Anr.,
E   l1991 J 2 sec 523, which reads as under:-
            "6. It is clear that an order passed by the Collector under Sections 6
            to 11 is only conclusive for what was decided therein and if the
            adjudication made by the Collector in summary proceedings are sought
            to be reopened, certainly, unless the order is got over, either by the
F           mortgagor or by the mortgagee, or any person claiming right, title or
            interest through them being an aggrieved person within the meaning
            of Section 12, the order of the Collector binds the parties or the
            persons claiming right, title or interest from the parties. Take for
            instance, there is a dispute as in the present case about the mortgage
            money before the Collector. Kala Singh disputed the money secured
G           of hypothecation but had compromised and agreed to pay the amount
            mentioned in the mortgage bond, namely, Rs. 850-Rs. 10 in each of the
            mortgages disputed but in the suit filed within one year he reiterated
            his original stand. Had the same stand been taken by the respondents
            disputing the mortgage money, certainly it would not be open to the
H           respondents as successor in interest of the mortgagor to contend that
          TUN DAL (DEAD) BY L. RS. i: MUNSHI [LOKESllW AR SINGH PANTA,J.]   627

        the money advanced under the mortgage was not Rs. 850, but A
        something less. That is not the case in the present suit. They agreed
        to pay Rs. 850 as decided by the Collector and sought redemption in
        the civil suit. Thereby they are not seeking to set aside the order of
        the Collector, but they are seeking redemption of the mortgage. Take
        another instance where the mortgagor disputed the execution or B
        validity of the mortgage bond itself and the finding was recorded
        against the mortgagee, i.e. the mortgage bond was not either executed
        or is void for being vitiated by fraud, coercion or undue influence, etc.
        The mortgagor successfully avoided the mortgage by a specific order
        passed by the Collector under the relevent provisions of the Act. lf
        no suit was filed within a period of one year, the findings of the C
        Collector become conclusive betwe'!n the mortgagee and the mortgagor
        and it is not open to assail the order of the Collector aft~r one year
        in a suit of foreclosure or sale by the mortgagee. Therefore, what was
        prohibited by Section 12 is only tht: substance of the order and not
        the fomi."
                                                                                    D
       The above extracted paragraph of the judgment lays down that if no
suit was filed within a period of one year, the findings of the Collector become
conclusive between the mortgagee and the mortgagor and it is not open to
assail the order of the Collector after one year in a suit of foreclosure or sale
by the mortgagee. Section 12 of the Act prohibits the substance of the order        E
and not the form in which the order is couched by the Collector. Even if by
the order, the petition is dismissed not the form of the order but the substance
will determine the application of the period of limitation prescribed by the
Limitation Act. Jn support of our view, we are fortified by the decision of this
Court in Shiv/al & Ors. v. Sultan & Ors., [1969] 2 SCC 883. In the facts and
circumstances of the case and in the light of the above-settled proposition         F
of law, we do not find any perversity or illegality in the judgment and decree
of the courts below warranting interference in these appeals.

      In result, for the foregoing reasons, the appeals are devoid of merits and
are dismissed accordingly. Parties are left to bear their own costs.
                                                                                    G
N.J.                                                          Appeals dismissed.