- (1.) This judgment will dispose of the above appeal as well as R.S.A. No. 900 of 1977 Kanhar V. Girdhari as in both the appeals the facts and law point involved are practically similar.
(2.) The brief facts giving rise to these appeals are that the ancestors of defendant Nos. 1 and 2 in both the suits had created two mortgages in favour of the ancestors of the plaintiffs and defendant Nos. 3 to 7 more than 60 years prior to the filing of the suit, which was filed on 3rd May, 1972. One mortgage related to land measuring 25 Kanals 11 Marlas and the other to 21 Kanals 4 Marlas. The plaintiffs filed two suits, one in respect of each mortgage for a declaration that they and the pro-forma defendants had become owners of the land involved in each suit as it had not been redeemed within time. In that alternative they prayed for a decree to the effect that in case they were not proved to have become owners by lapse of time, it be declared that they and pro-forma defendants were in possession of the land involved in each suit as mortgagees and were entitled to retain their possession. It was also averred by the plaintiffs that they had come to know that in their absence the Revenue Officer had sanctioned mutations on 29th March, 1967 redeeming the mortgages. They were not present at the time the said mutations were sanctioned nor the redemption money was received by them. They were still in possession of the land. Both the suits were contested by defendants No. 1 and 2 and in each suit the pleas taken by them were similar. They pleaded that there was relationship of landlord and tenant between the parties and, therefore, the jurisdiction of the civil Court was barred under the Punjab Tenancy Act, 1887. The plaintiffs were estopped from filing suits on account of their conduct. The land in each suit had been redeemed in 1965 and, therefore, the suits were barred by time. Mutations of redemption were rightly sanctioned and since then the plaintiffs were cultivating the land as tenants and not as mortgagees. Upon the allegations of the parties the learned trial Court framed as many as 10 issues in each suit. It is not necessary to reproduce the above issues as only three points are relevant for the disposal of these appeals. Those points are, (1) whether the plaintiffs had become owners of the suit land by lapse of time prescribed for redemption of the mortgages, (2) whether the mortgages had been redeemed, and (3) whether the suits were within time. It may be mentioned here that there was no specific issue about third point but it was raised before the trial Court as well as before the lower Appellate Court and, therefore, I have allowed it to be raised before me also. On the first point the learned trial Court held that the plaintiffs had become owners of the land in each suit by lapse of time prescribed for redemption of mortgages. In that Court it was not disputed that the mortgages were created in 1902. On the second point it was held that the mortgage in each suit had not been redeemed and the alleged mutation in respect of each mortgage was null and void because the mortgagor's rights to redeem the land had been extinguished by virtue of section 27 of the Limitation Act. On the third point it was held that the suits were barred by limitation. Accordingly, both the suits were dismissed by the trial Court. Feeling aggrieved, the plaintiffs filed separate appeals in the two suits, which were heard by the learned Senior Subordinate Judge (with Enhanced Appellate Powers), Gurgaon. Before him the only point that was agitated with respect to limitation. He also held that the suits were governed by Article 58 of the Limitation Act, 1963 and as the suits had been filed beyond three years from the date of mutations or the preparation of the Jamabandi for the year 1967-68, those were barred by limitation. He dismissed both the appeals. The plaintiffs have now filed these two appeals.
(3.) Both the learned Courts below have dismissed the suit of the plaintiffs in view of the observations made in Smt. Sharifan alias Shanti V. Ibrahim alias Dharam Vir, 1975 PunLJ 293. However, in Letters Patent Appeal that judgment was reversed. The judgment in the Letters Patent Appeal is reported as Ibrahim alias Dharam Vir V. Smt. Sharifan alias Shanti, 1979 PunLJ 469. The Letters Patent Bench remarked :- ''It may be observed at the outset that the word 'first' occurring in Article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar and in case such an entry furnishes a cause of action, then certainly the suit would be barred by limitation. Even Mr. Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of mutation did not furnish any cause of action and in support of his contention he relied on a Division Bench judgment of this Court in Niamat Singh V. Darbari Singh etc., 1956 58 PunLR 461. In our view, the contention of the learned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of her father Akbar or her mother Smt. Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land of her share. In this situation, no cloud was cast on the title of the plaintiff by mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April 1969, by any act or assertion of the defendant the right of the plaintiff was ever actually jeopardised. The defendant is occupying a house in the village. The assertion of the plaintiff is that it was given by him to her out of compensation, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant after the sanction of the mutations never asserted her right to her share in the land in dispute, nor did she ever get any rent or produce and that it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. This view of ours finds full support from the judgment of the Division Bench in Niamat Singh's case. Thus, we do not agree with the learned Singh Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the suit filed by the plaintiff is within limitation.'' The above observations clearly apply to the present case. Even after the sanction of the mutation of redemption, the plaintiffs remained in possession of the suit land. The plaintiffs could ignore the entry of mutations in favour of the contesting defendants. It is an admitted fact that mutations is not a document of title. The plaintiffs could come to Court at any time when there was a threat to their possession. According to the plaintiffs, the contesting defendants were now intending to take possession of the suit land. Therefore, their suits are clearly within time.;