Find a Lawyer

Second Appeal No. 273 of 1975, heard on 22nd January, 1985.

(a) Dekhan Agriculturists Relief Act (XVII of

1879)--

---S. 10(A)--Evidence Act (I of 1872), S. 92--Transfer of Property Act (IV of 1882), S. 58(c)--Registration Act (XVI of 1908), S. 49- Mortgage.--Real nature of transaction--Determination of--Limitation for action--Dekhan Agriculturist Act, 1879 meant to be providing relief to illiterate agriculturists--Real nature of transaction in suit to which an agriculturist was party could be determined by Court notwithstanding anything contained in S. 92, Evidence Act, 1872, S. 49 Registration Act, 1908 and any other law including S. 58(c), Transfer of Property Act, 1882--Lack of registration of mortgage created orally by agriculturist, held, would not amount in converting same into transfer by mortgagee--Limitation for action by mortgagor would be 60 years.

1980 C 'L C 582 and 15 B L R 555 ref.

A I R 1943 Bom. 113; A I R 1936 Sind 209 and A I R 1936 Sind 209 rel.

(b) Dekhan Agriculturists Relief Act (XVII of 1879)--

---S. 10(A)--Limitation Act (IX of 1908), Art. 148--Suit for redemp tion- -Limitation--Appellate Court gave findings after correctly applying provision of S. 10(A) of Dekhan Agriculturists Relief Act, 1879 arid relying upon oral evidence of mortgagor that transaction was mortgage and not sale--Limitation available to mortgagor to file suit for redemption of mortgage, held, was 60 years.

- -S. 10(A)--Transfer of Property Act (IV of 1882), S. 58--Mortgage- Mortgagee had not taken plea in written statement that transaction was sale and no suggestion was put to opponent /mortgagor in that respect- Findings of Appellate Court below declaring transaction being mortgage, held, justified.

(d) Dekhan Agriculturists Relief Act (XVII of 1879)--

---S. 10(A)--Evidence Act (I of 1872), S. 92--Oral evidence--Application of--Revenue entry--Nature of--Agriculturist seeking relief under SA0(A) of Dekhan Agriculturists Reiief Act, 1879 could adduce oral evidence in respect of real nature of transaction--Revenue entry, held, could not be regarded as document which could prohibit giving oral evidence--Nature and scope of S. 92 of Evidence, Act, 1872 discussed.

(e) Dekhan Agriculturists Relief Act (XVII of 1879)--

---S. 10 (A)--Appellate Court passed reasonable judgment according to evidence on record--No violation of law committed and no principle of natural justice discarded--Proceedings before Appellate Court not coram non judice--Judgment of Appellate Court, held, could not be regarded void and without jurisdiction merely because Court had not considered omission of mortgagor in taking action promptly--Appeal treated as suo motu civil revision and dismissed in circumstances--Civil Procedure Code (V of 1908), S. 115.

P L D 1964 S C 97 rel.

Muhammad Shareef for Appellants.

Abdul Qadir Halepota for Respondents.

Dates of hearing: 16th, 17th and 22nd January, 1985.

This second appeal is directed against the judgment and decree of III Additional District Judge, Hyderabad, who had accepted Appeal No. 204 of 1974 filed by the respondent and set aside the judgment and decree in Suit No. 28 of 1970 passed by Civil Judge, Tando Allahyar on 30th March, 1974 by which the suit of Mataro and others for redemption of mortgage under section 60 of Transfer of Property Act read with section 10(a) of Dekhan Agriculturists Relief Act was dismissed.

2. The plaintiffs/respondents have alleged that his father All Muhammad had mortgaged Survey No. 396 measuring 7.21 Acres in Deh Chamber Taluka Tando Allahyar with Muhammad and Allah Ditto in 1920, for a sum of Rs.100 which was to be paid back in 5 years and till then the mortgagees were allowed to appropriate the produce of the land. That in 1925 mortgage money was tendered to the mortgagees but they refused to accept the same on the ground that the transaction was a condition sale. That the plaintiff and their ancestors came to know that the land was fraudulently mutated in the year 1920 in the names of Muhammad and Allah Ditto and the transaction was shown as an oral sale. That on the persuasion of neighbours the mortgagees took the mortgage money of Rs.100 but promised to hand over the possession after the standing crop was reaped. It was, however, stated that for one reason or the other ttte possession of the land was not

given and mortgagees died in 1926 leaving Siddique and Usman as their heirs but even Siddique and Usman did not deliver back the possession of the land on one pretext or the other. That Ali Muhammad, the mortgagor, died in 1954 and in 1957 and 1959 even Siddique and Usman died. ,Usman had asked Mst. Sabyani, defendant No.l to reconvey the land and hand over the possession of the land to the plaintiffs. The plaintiffs after the death of Usman were again kept on false hopes and applied for mutation before Settlement Authorities but they were directed to move trial Court. The plaintiff's claim to be agriculturists. It was urged that the price paid was so inadequate that it could not lie considered to be a sale. That there was no conveyance of the property and that equity of redemption subsisted. It was, therefore, prayed that property be ordered to be redeemed without any payment and that possession of the property be given back to them.

3. The written statement of the appellants denied that Ali Muhammad was an agriculturist. It was further asserted that the transaction in question was not usufractuary mortgage. It was also denied that Rs.100 were tendered by the ancestors of the plaintiffs in 1925. There was in fact a total denial of the case of the plaintiff, inadequacy of price was also denied and the fraudulent act of the transaction was also denied. In para. 17 of the written statement it was denied that time fixed for reconveyance was not the essence of the contract or that there was no case of limitation in the case of clogs. It was denied that equity of redemption subsists. However, in the entire statement nowhere a clear statement was made that the transaction in question was an outright sale.

Issues were framed between the parties and the important issues were whether the plaintiff or their predecessors were agriculturists or not and whether Ali Muhammad had entered into usufructuary mortgage with stipulation to pay the mortgaged amount of Rs.100 within five years and whether the entry in the revenue record was fraudulently mutated in the year 1920.

4. On behalf of the respondent one Sunharo and Dodo respectively aged 90 years and 85 years were examined apart from Haji Mataro. All of them stated that Ali Muhammad had mortgaged the land in dispute for Rs.100 and that he had paid Rs.100 after 5 years but possession had not been handed over for one reason or the other. In cross- examination the statement of Sunharo and Dodo were challenged , on a point of the payment of Rs.100 by Ali Muhammad but no question was put that transaction in question was an outright sale. Haji Mataro reiterated-the contents of the plaint and produced village form entry-I showing mutation of property in the name of mortgagees in 1920 and a certificate from Sub-Registrar, Hyderabad showing that there was no entry of sale or mortgage effected between 1913 to 1930 in respect of the disputed property in the Sub-Registrar's Office.. He also produced Robkar from Naib-Tehsildar, dated 30-6-1970, directed the plaintiff' to approach Civil Court in respect of the mutation. He was cross-examined at length in respect of his claim that he or his father was an agriculturist but no serious effort was made in trying to demolish the question of mortgage. It was suggested to him that he had arranged for destruction of record in the registration office but he denied the same. Even he was not asked a question that the transaction in dispute was an outright sale. Mst. Sabyani was examined on behalf of the defendants and she stated that the land was inserted by them as their ancestral property and that her husband Muhammad Siddique and his brother Usman used to look after the said land. She stated that the plaintiff or any one on their behalf never approached her or her husband for the redemption of the suit land nor they had ever paid any amount to them and that she had never been told by her husband that the land was under mortgage with him. She admitted in cross-examination that Mst. Hawa was married with father of the plaintiff and she was the Phoophi of her husband. She admitted that the plaintiff cultivated the land by himself and sometimes through their heirs.

5. The learned Civil Judge came to the conclusion that the plaintiffs have proved through their evidence that they are agriculturists and that Mst. Sabyani had not controverted this fact. In respect of the additional issue whether Ali Muhammad was an agriculturist, he took into consideration the evidence of plaintiff Matero who had deposed that Ali Muhammad was an agriculturist during his lifetime. He also took into consideration that Mst. Sabyani had not denied the fact that Ali Muhammad was not an agriculturist but strangely enough he came to the conclusion that Ali Muhammad was not agriculturist because no documentary evidence had been produced in that respect.

6. The appellate Court has upset the said findings in respect of Ali Muhammad not being an agriculturist and has come to the conclusion that Ali Muhammad was an agriculturist. Mr. Muhammad Shareef appearing for the appellant was not able to show me as to how the decision of the appellate Court was wrong in this respect.

7. The Civil Judge after having come to the conclusion that All Muhammad was not an agriculturist considered the case whether it was a usufructuary mortgage or not and came to the conclusions that the story put up by the plaintiff appeared to be absurd and disbelieved the plaintiff and his witnesses on this issue. His main emphasis was only that Ali Muhammad, the alleged mortgagor had failed to do anything about the land between the year 1925 when the redemption money had been paid and possession was not delivered till 1954 when Ali Muhammad died and even from 1954 till 1970 the plaintiffs did not take any serious action for the recovery of the possession of the land and allowed the same to be usurped by the respondent. He ignored the relationship between the parties which is admitted by Mst. Sabyani. It is, therefore, the mere omission of action by Ali Muhammad and his successors namely the plaintiffs which is the basis of the finding of the trial Court in respect of the transaction not being a mortgage particularly in view of. the fact that there was a mutation entry in 1920 in the revenue records made on the basis of sale and riot mortgage and the same was not challenged at any time. But anther important basis or. which the learned Civil Judge discarded the evidence of the plaintiff in respect of the mortgage transaction was that Exh.20 namely, the entry in the revenue records was a documentary evidence and since he had reached a finding that Ali Muhammad was not an agriculturist, therefore, the provision of Dekhan Agriculturists Relief Act of 1879 were not attracted in the case and hence oral evidence was excluded in respect of the documentary evidence. He, therefore, failed to take into consideration the evidence of Sunharo and Dodo which had been produced by the respondents to support their case of mortgage. The learned appellate Court after giving the finding that Ali Muhammad was an agriculturist considered the evidence of Sunharo and Dodo alongwith that of Mataro and came to the conclusion on that basis that the transaction in question was mortgage. He further came to the conclusion that the entry in the revenue record could not be made the basis of title and since there was no sale as such in favour of Muhammad and Allah Ditto by Ali Muhammad, therefore, no sale had actually taken place.

Mr. Shareef, Advocate for the appellant had, in the first instance argued that- the mortgage in question having not been registered, therefore, it was not mortgage in law and hence any possession obtained by predecessor of the appellant on the basis of the alleged mortgage, which was not allowed in law, should be treated as an adverse possession and not a possession under mortgage. He relied in this respect upon 1980 t: 1, C 582 where Z.H. Mirza, J. as he then was, held that suit for pre-emption cannot be filed on the basis of an unregistered deed of mortgage but the mortgagees could be treated as trespasser. It was. therefore, argued that the suit could be filed within 12 years against a trespasser and, therefore, it was obviously time-barred when it was tiled in 1970. Mr. Shareef had also relied upon 15--H.L.R. 555 where it was held that scope of section 10(A) of D.A.R. Act, 1879 was merely to open the case for adducing oral evidence as against the written documents but otherwise the Court was as usual bound by the ordinary laws of evidence or otherwise. This case was, however, decided on the basis that principles of ejusdam generis were attracted ii: interpretation of provisions of section 10(A) of D.A.R. Act Lind hence merely section 92 of the Evidence Act or provisions similar to the same could be treated as having been dispensed with by the section 10(A) of D.A.R. Act.

8. Mr. Halepota, Advocate for the respondent in reply submitted that the transaction was merely oral and hence oral evidence could be led to establish that it was a mortgage because section 10(A) of D . A . R Act, 1879 was attracted in this case which allowed the Court to determine the real nature of transaction where the person who had entered into that transaction was an agriculturist, He relied upon A I R 1943 Bom. 113 where it was held that section 10(A) of D.A.R. Act allows leading of oral evidence in respect of an allegation that transaction of sale was in fact a mortgage in favour of a Benamidar. More important case however relied upon by Mr. Halepota was A I R 1936 Sind 209 where a Division Berch of this Court held that words "any other law for the time being inforce," used in section 10(.a) of D.A.R. Act are wide

enough to include the provision of the Registration Act. It was further held in that case that proviso of section 58(c) of Transfer of Property Act is of the nature of late of evidence. The case of 15 Bom. Law Report 555 was also distinguished by our Division Bench in A I R 1936 Sind 209 :;, view of the fact that the amendment was introduced it) section 10(A) of D.A.R. Act by adding "section 49 of the Registration Act", after the words, i.e. section 92 of the Evidence Act. "Therefore, now the principle of ejusdem generis was not applicable in respect of the provisions of section 10(A) of D . A . R . Act, as section 92 of Evidence Act and section 49 of the Registration Act are not similar to each other. Therefore, it is apparent that words "any other law for the time being inforce" appearing in section 10(A) of D.A.R. Act, 1879 have to be given wider interpretation uninfluenced by the mere mention of section 92 of Evidence Act before them.

9. I am in full agreement with the dictum laid down in A 1 R 1936 Sind 209 and I am of the view that D.A. R. Act is meant to be providing the relief to the illiterate agriculturists and, therefore, real nature of any transaction can be determined by a Court in a suit to which a agriculturist is a party notwithstanding any thing contained in section 92 of the Evidence Act, 1872 or in section 49 of the Registration Act, 1908 or any other law for the time being in force including section 58(c) of the Transfer of Property Act. Hence lack of registration of mortgage created by an agriculturist does not result in converting it into a trespass by mortgagee and, therefore, limitation for an action by a mortgagor would not be 12 years but sixty years. It is, therefore quite clear that the dictum laid down in 1980 C L C 582 will not be applicable to a case where the provisions of section 10(A; of D.A .R Act of 1879 are applicable.

10. I may further note that after looking at the amended provision of section 10(A) of D.A.R. Act, 1879 Mr. Shareef had stated that he would not insist upon his submission that it was an illegal mortgage resulting in adverse possession of the appellant from the time of alleged transaction.

11. I am, therefore, of the view that the appellate Court had correctly proceeded to apply the provision of D.A.R. Act, 1879 it the case and that it was justified to consider and rely upon the oral evidence of Mataro, Sunharo and Dodo in considering the question whether the transaction of sale was a sale or mortgage and that once the finding had been given by the appellate Court that the transaction was mortgage entered into in 1920 then obviously 60 years time was available to the respondents to file the suit for redemption which they did in 1970 and, therefore, this suit for redemption of mortgage and possession was in time and competent.

12. Mr. Shareef then submitted that the appellate Court was not justified in reaching his conclusion that it was a mortgage and not a sale and he submitted that the appellate Court had failed to take into consideration the various factors in the case which militated against the transaction being a mortgage and those were the omission of, Ali Muhammad and his successor to get the entries in record of right corrected and to seek redemption and possession of the land, for a period from 1925 to 1970. However, the appellate Court has come to the conclusion that it .vas a mortgage after considering the evidence produced in the case by the plaintiff. I have already noted above that in the written statement the appellant had not taken up the plea that it was an outright sale in favour of their ancestor nor they have put such suggestion to either Sunharo, Dodo or Mataro and, therefore, the finding of the appellate Court does not appear to be completely unjustified.

I may also state here that the trial Court was not justified in excluding tire oral evidence of the plaintiff because no document had been produced in the case on behalf of the respondent showing that the transaction was nothing else than a mortgage. The revenue entry Exh.20 could not be regarded as a document which could prohibit giving of oral evidence against the contents of that document. The trial Court has failed to correctly appreciate the provision of section 92 of Evidence Act which merely prohibits evidence of any oral agreement or statement as between the parties to any instrument of contract, grant or other disposition of property and certainly Exh.22, the revenue entry, was not an instrument to which the plaintiffs were a party. The circumstances of the case are of course important but the evidence produced by the parties and the cross-examination directed against the witness is also important and if the appellate Court has passed its decision upon the evidence produced in the case, then it could not b said that it is a decision which could not be made by the appellate Court. Mr. Shareef had also contended that fraud in respect of revenue entry had not been established. The same is correct but in any case that does not debar an agriculturist seeking relief under section 10(A) of D.A.R. Act, 1879, to adduce oral evidence in respect of the real nature of the transaction.

Mr. Halepota had drawn my attention that the omission to take prompt action by the plaintiff may have been due to the fact that the parties were inter-related as stated by Mst. Sabyani in her cross- examination. This could be a possible reason of in action by the plaintiff in time.

Lastly I may note that this second appeal was not competent as a second appeal in view of the fact that the value of the original suit was only Rs.540 and hence it was below Rs.2,000 and hence it was barred under section 102(b) of C.P.C.

This second appeal was however treated by me as a suo moto revision under section 115 of C.P.C. in view of the fact that the circumstance of the admission of the second appeal by an Hon'ble Judge of this Court in this case did require a probe whether the decree of the appellate Court was justified or not.

I have come to the conclusion that the appellate Court had proceeded in the case in a correct manner and has passed reasonable judgment according to the evidence on record and merely because it had not considered the omission of the respondents in taking action promptly the said judgment could not be regarded as void and without jurisdiction, as after all the respondents had taken action in respect of the redemption within the time allowed in law to them under the Limitation Act. Therefore, in view of the dictum contained in P L D 1964 S C 97, I am of the view that there was no violation of the law and no principle of natural justice was discarded and the proceedings before the appellate Court were not coram non judice and hence the judgment of the appellate Court is maintained. This appeal which I had heard as Civil Revision is hereby dismissed.

H. B. T.

Find a Lawyer Near You

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