Find a Lawyer

Regular Second Appeal No. 171 of 1963, decided on 30th November, 1982.

Art. 120‑Civil Procedure Code (V of 1908), S. 100‑Suit for declaration that mortgaged land non‑ancestral property belonged to plaintiff/appellant and that right to redeem belonged to him and that defendant/respondent had no interest. Trial Court dismissing suit on ground of limitation. District Judge reversing finding of trial Court and holding that every fresh interference with right of plaintiff gave him a fresh cause of action‑Cause of action arose when defendant took proceedings for redemption‑Finding of District Judge, held, in no way erroneous‑Right in property was not acquired just by getting name inserted in ownership column of revenue record but at first time a right in respect of property was by way of suit for redemp tion and limitation started only when a right actually interfered with.

Allah Jilai v. Vmrao Hussain (1914) 36 All. 492 rel.

Muhammad Shah v. Mir Zaman A I R 1943 Pesh. 83; Hakim Singh v. Waryaman 140 P R 1907; Dassondhi Khan v. Jan Muhammad A I R 1938 Lab. 318 and Shro Pher Singh v. Deo Narain Singh (1912) 17 1 C 675 (All.) ref.

S. 100‑Question whether property ancestral‑Contention that no issue regarding non‑ancestral nature of property framed and matter having proceeded before trial Court only on preliminary issues lower appellate Court should have sent case back after coming to conclusion that suit was within time‑Objection also raised before District Judge District Judge relying on pleadings of parties to slay that evasive reply of defendant amounted to admission that property was not ancestral no evidence or material available on record to support denial of plea Property, held, to be non‑ancestral and there is no need to send case back.‑[Pleadings].

Mst. Jewi v. Saudi and others 1 I L R 433 and Inder Singh and others V. Mian Singh and others A I R 1935 Lab. 391 ref.

Custom‑Non‑ancestral property‑Riwaj‑e‑Aam District Jhelum Married daughter would exclude collaterals of any degree.

Riwaj‑e‑Aam of Di trict Jhelum by P. M. Thappar, Ans. 56 ; Mst. Subhani and others v. Nawab and others A I R 1941 P C 21 and Buta and another v. Mst. Farzand Begum P L D 1952 Lab. 451 rel.

S. 58‑Civil Procedure Code (V of 1908), S. 100‑Mortgage with possession‑Rightful owner, held, can take possession from mortgagee only after getting land redeemed in accordance with law.

Dakhina Mohan Roy v. Saroora Mohan Roy 21 Cal. 142 and Gulab Nathuram v. Bindraban Sheochavan A I R 1941 Nag. 474 rel.

Kh. Mushtaq Ahmad for Appellants.

Syed Taslim Ahmad Shah for Respondent.

Dates of hearing: 21st and 22nd November, 1982.

This order shall also dispose of R. S. A. No. 504 of 1967, which is between the same parties, concern the sate property and one of the questions involved is common.

2. The order dated 3rd December, 1962, passed by the learned District Judge, Jhelum is assailed in this appeal. He accepted the appeal and decreed the suit declaring that the plaintiff Ghulam Hassan was the owner of land measuring 6 kanals, Khasra No. 1112, village Bhon, Tehsil Chakwal, District Jhelum. He also granted the injunction prayed for.

3. The order impugned R. S. A. 504 of 1967 was passed by the District Judge, Jhelum on 27th March, 1967, dismissing the appeal of Mst. Kaniz Fatima and upholding the order of the trial Court. He had dismissed her suit for a declaration to the effect that she was mortgage in possession of land measuring 6 kanals, Khasra No. 1112 and for a permanent injunction that the defendants should not interfere with her possession.

4. The facts of the cases are that the suit land belonged to Bahawal Bakhsh. On his death on 6th April, 1916, it was mutated in favour of Mst. Bano, widow of his son Muhammad Bakhsh. She mortgaged it to Jamadar Aksar Khan, the real uncle of Ghulam Hassan plaintiff, in 1922. On the death of Mst. Bano in 1936, this land was mutated in the names of defendants, collaterals of Bahawal Bakhsh, as owners and mortgagors. Ghulam Hassan son of Mst. Allah Rakhi daughter of Mst. Bano and Muhammad Bakhsh brought a suit against Chaughatta and 14 others for a declaration, to the effect that Khasra No. 1112 which was a non -ancestral property, belonged to him and that the defendants had no interest in it. He also sought for a permanent injunction restraining the defendants from getting the land redeemed from Misri Khan and Akbar Khan on the ground that the right to redeem devolved upon him. The defendants did not specifically deny the nature of the property.

5. The trial Court dismissed the suit on the ground of limitation. The learned Civil Judge found that though the plaintiff was aware of an entry made, in pursuance to a mutation 1936, showing the defendants to be the owner‑mortgagors, he fell beyond time in 1961 to file the said suit. It is to be noted that meanwhile, Mst. Kaniz Fatima one of the recorded owners and mortgagors had got the land redeemed vide order dated 13th January, 1961, of the Collector, Chakwal. According to the trial Court, the suit should have been brought within a period of 12 years from the date of the mutation of 1536.

6. To determine the question of limitation, the learned District Judge went into the question of mortgage first. It bad taken place under a registered deed in favour of Jamedar Aksar Khan in January, 1922. On the death of Aksar Khan in 1942, the mortgagee rights devolved upon his sons Misri Khan anti Muhammad Akbar Khan. A mutation (Exh. D/1) was also attested in 1936, showing the defendants or their predecessors as the mortgagors. According to him, the question for determination was whether the suit was within time, in the light of the facts stated above

7. It appears that parties admitted before him that Article 120 of the Limitation Act applied. It provides six years to bring a suit for declaration from the date of cause of action. The learned District Judge held that every fresh interference with the right of the plaintiff will cave him a fresh cause of action. It is to be noted that the name of Mst. Kaniz Fatima was mutated in the place of mortgagor in 1936 but she brought a suit for redemption in 1960. At that time, that property was neither in possession of the defendants nor the plaintiff. It shall be deemed to be in possession of the rightful owners, whosoever, may be so determined.

8. The learned District Judge relied on a number of precedent judgments to bold that the cause of action arose to the plaintiff in 1960 when the defendant No. 12 took proceedings for redemption. This finding is in no way erroneous. Mst. Kaniz Fatima acquired no right in the property just by getting her name inserted in the ownership column of the revenue record. The first time, she asserted any right in respect of the property was by way of suit for redemption. The plaintiff might have ignored that and could start his limitation from the date of decree for redemption or possession. It was held in Allah Jilai v. Umrao Hussain ((1914) 36 All. 492) that time starts running only when rights are actually interfered with. In Muhammad Shah v. Mir Zaman (A I R 1943 Pesh. 83), it was held that a fresh cause of action would arise when plaintiff is sought to be ousted after the wrong entry in the revenue record. In Hakim Singh v. Waryaman (140 P R 1907), the previous view that time runs from a wrong entry, was modified to hold that it does not necessarily run from that date. The cases of Dasrondhi Khan v. Jan Muhammad (A I R 1938 Lab. 318), and Shro Pher Singh v. Deo Narain Singh ((1912) 17 1 C 675 (All.)), were also referred to. The learned District Judge, therefore, rightly held the suit to be within time and correctly reversed the findings of the trial Court on that issue.

9. It is contended by the learned counsel that as no issue regarding the non‑ancestral nature of the property had been framed and the matte having proceeded before the trial Court only on preliminary issues, the lower appellate Court should have sent the case back, after it came to the conclusion that the suit was within time. This objection seems to have been raised before the learned District Judge also but he relied on the pleadings of the parties to say that the evasive reply of the defendants amounted to admission that the property was not ancestral.

10. This conclusion can in no way be considered illegal and unwarranted. The contention of the learned counsel, that he denied that plea in his deposition, is also of no consequence, as there is no evidence or material to support it. Thus, it shall be considered to be a non‑ancestral property.

It was held In Mst. Jewi v. Sandi and others (1 1 L R 433) that non‑ancestral property was not to go to sisters. There is also no presumption that the property in a particular case is ancestral, as held in Inder Singh and others v. Mian Singh and others (A I R 1935 Lab. 391).

11. The learned District Judge also took note of the fact that according to the plaintiff the disputed property was non‑ancestral and belonged to Bahawal Bakhsh whose son Muhammad Bakhsh, after marrying Mst. Bano, predeceased him. The property devolved on Mst. Bano widow of Muhammad Bakhsh, on the death of Bahawal Bakhsh. Muhammad Bakhsh had a daughter Allah Rakhi. She was wife of Mehdi and mother of Ghulam Hassan plaintiff. This factual position about the nature of the disputed property was not specifically denied by Muhammad Khan and Mst. Kaniz Fatima in their written statement. They stated that they had no knowledge, if the property was ancestral.

12. In his cross‑examination, Muhammad Khan denied if Allah Rakhi was the mother of the plaintiff. He did not know the name of the plaintiff's mother but stated that his father's name was Mehdi. He never knew if Mehdi was married to Mst. Allah Rakhi. He also did not know if Fateh Khan was a brother of plaintiff or if the plaintiff was his relation. He also did not know if Mst. Bano had died before Mst. Allah Rakbi.

13. In view of the above, there was no need to send the case back. The learned District Judge also rightly concluded from the material before him that the property was no ancestral and that it devolved on the daughter of Muhammad Bakhsh (4Jst. Allah Rakhi) on the death of Mst. Bano and that the plaintiff was the only surviving son of Mst. Allah Rakhi. He also noted the undisputed fact that Muhammad Bakhsh son of Bahawal Bakhsh died on 5th May, 1915. Bahawal Bakhsh, however, died on 6th April, 1916, and Mst. Bano died on or before 18th February, 1.936. Mst. Allah Rakhi expired on 14th July, 1937, while Fateh Khan brother of the plaintiff on 6th of January, 1943. The above information he got from Exhs. P. 4, P. 5, P. 6, P. 7 and D. 1. He also concluded that the custom would apply as the devolution took place while the custom was still in force.

14. As regards the question of preference under custom, a reference be made to the answer 56 of Riwaj‑e‑Aam of District Jhelum, by P. M. Thapper. It states that married daughter would exclude collaterals of any degree in case of a non‑ancestral property. This supports the plea of the respondents. To the same effect is the judgment of the Privy Council in Mst. Subhani and others v. Nawab and others (A I R 1941 P C 21). It was held in Buta and another v. Mst. Farzand Begum (P L D 1952 Lab. 451), that whether the property be ancestral or non‑ancestral, married daughters excluded all the collaterals. There can thus be no error in holding that none of the defendants would be preferred over Mst. Allah Rakhi, daughter of the last male‑holder and her only son Ghulam Hassan would get it from her.

15. As regards the other appeal (R. S. A. No. 504 of 1967), it is to b noted that Mst. Kaniz Fatima did redeem the property from Misri Khan and Muhammad Akbar Khan, on the plea that she inherited it lawfully. In the above case, it has been found that she was not the rightful owner and could not in strict sense redeem the property. However, she will be subrogated for the mortgage or would be able to claim equitable charge as held in Dakh1na Mohan Roy v. Saroora Mohan Roy (21 Cal. 142). Similar view was taken in Gulab Yalhuram v. Bindraban Sheochavan (A I R 1941 Nag. 474). As the mortgage is with possession, the rightful owner can take its possession from Mst. Kaniz Fatima only after getting the same redeemed from her in accordance with law. This appeal is, therefore, allowed. The Regular second Appeal No. 171 of 1963 is, however, dismissed, for the reasons given above. The parties shall bear their own costs

Appeal allowed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.