TMI Blog2000 (9) TMI 1075X X X X Extracts X X X X X X X X Extracts X X X X ..... ty with Narayan Sonar. The said Smt. Lakshamania died on 3rd November, 1908. One Smt. Piyari, claiming to be the nearest heir of the husband of Smt. Laxmina, filed Suit No. 328 of 1908 and made a claim to the suit property. This Suit was dismissed on the ground that Smt. Piyari was not an heir of Shri Narayan or of Smt. Lakshamania. One Shri Bharat Sonar, claiming to the heir of Smt. Laxmina, filed Suit No. 17 of 1914 making a claim to the suit property. This Suit was also dismissed on the ground that Shri Bharat Sonar was not an heir of Smt. Laxmina. In this Suit Ram Charan Sonar and Swaroop Sonar had averred, in their written statement, that the suit property had come to them under an oral Will by Shri Narayan. Thus as far back as in 1914/1915 Ram Charan Sonar and Swaroop Sonar set up a title adverse to the estate. To be remembered that Swaroop Sonar was not a mortgagee under the mortgage deed of 1902. On 12th September 1916 Ram Charan Sonar and Swaroop Sonar executed a mortgage in favour of one Hanuman. This mortgage was in respect of one of the houses (which for sake of convenience is called the 'southern house). The mortgage was for a fixed period of 10 years. Thus the rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is suit 1st Defendant was the son of Ram Charan Sonar. The 2nd Defendant was the grandson of Swaroop Sonar. Ramraj and Lakshman were Defendants 4 and 5 respectively. Lakhan and Mahavir Khandu were Defendants 5 and 6 respectively. Hanuman was made Defendant No. 7. Sita Ram, Ganesh, Bechni, Rajwanti, Bhoju and Bhuwel were Defendants 8 to 13 respectively. We have seen the plaint. The Suit is merely for redemption of mortgage. In the suit, as regards the transfers, it is averred as follows: 4. That Ram Charan Sonar, mortgagee right in respect of part of the mortgaged house given in Schedule Aa of the plaint to Ram Charan Teli. Thereafter deceased Ram Charan Teli transferred it to the defendants 5 and 6 who have been in possession thereof as transferees from the mortgagee and the remaining portion of the house Schedule Aa of the plaint has been in possession of the defendants 1 and 2 as a mortgagees. 5. That Ram Charan Sonar had executed a fictitious mortgage deed in favour of Hanuman, defendant No. 7 in respect of house of Schedule Ba of the plaint and thereafter the defendants 1 and 2 transferred the said house in favour of Ram Raj and Laxman, defendants 3 and 4 and their possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Mantorani gave evidence and stated on oath that some of the predecessors in title of the 1st Respondent were not heirs of Lakshamania. The Trial Court, which was the best judge of her testimony and demeanor, believed her testimony. The Trial Court held that the 1st Respondent had acquired no right, title or interest in the suit property and was not entitled to claim redemption. The Trial Court also gave a finding that the predecessors in title of the 1st Respondent had full knowledge of the transactions of mortgage and sale by Ram Charan Sonar and his brother Swaroop Sonar. The Trial Court noted that in the mortgage deed and the sale deed executed by the brothers and then by Defendants 1 and 2 they had claimed themselves to be owners. The Trial Court noted that none of the admitted heirs of Lakshamania had, in spite of knowledge of such claims, made any protest or filed a suit. The Trial Court held that the suit was barred by limitation. The Trial Court also held that Ram Charan Teli as well as Ramraj and Lakshman were bona fide purchasers for value without notice. Being aggrieved by this Judgment 1st Respondent filed Civil Appeal No. 149 of 1967. The first Appellant Court found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oceeds to re-appreciate evidence in a Second Appeal. Reliance is placed on Exs. 20, 21 and 22 to arrive at a finding that these documents established the relationship. The High Court holds that non examination of the predecessors in title of the 1st Respondent did not matter as they would only have confirmed the statements in these documents. The High Court disbelieves evidence of Smt. Mantorani without any cogent reasons. High Court tries to justify its appreciation of evidence in the following manner: findings arrived at by the lower appellate court were vitiated by an error of law in excluding from consideration the documentary evidence on this question The law on the subject is very clear. Even under the unamended Section 100 of the Code of Civil Procedure, the Court could only interfere on a question of law. As admitted by High Court the question, whether the predecessors in title were heirs of Lakshamania was purely a question of fact. Both the Courts below had given concurrent findings that it was not proved that the predecessors in title of the 1st Respondent were related to Smt. Lakshamania. The justification sought to be given by the Judge that there was an error of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court below had rightly noted that this did not prove that Bechni was daughter of Gajadhar. The Will does not say so. We fail to understand how the High Court presumes that this establishes that Bechni is daughter of Gajadhar. More importantly Bechni is Defendant No. 10. She does not step into the witness box to depose that she is daughter of Gajadhar and/or to support the Will. The Courts below had thus rightly held that no reliance could be placed on this document. Thus the finding of the High Court, in the Second Appeal, cannot be sustained at all. Both the Courts below were right in concluding that it had not been established that the predecessors in title of the 1st Respondent were related to Smt. Lakshamania or Shri Narayan. Both the Courts below were right in holding that the 1st Respondent thus acquired no title and had no right to claim redemption. The 1st Respondent could thus not maintain the suit and the same should have been dismissed on this ground itself. At this stage it must be mentioned that Mr. Chaudhary sought to support the finding of the High Court by submitting that Ram Charan Sonar and Swaroop Sonar had in the written statement filed in Suit No. 17 of 1914 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is filed beyond the period of 12 years, the Plaintiff would have to aver and then prove that the Suit is within 12 years of his/her knowledge. In the absence of any averment or proof, to show that the suit is within time, it is the Plaintiff who would fail. Whenever a document is registered the date of registration becomes the date of deemed knowledge. In other cases where a fact could be discovered by due diligence then deemed knowledge would be attributed to the Plaintiff because a party cannot be allowed to extend period of limitation by merely claiming that he had no knowledge. As set out above Swaroop Sonar was claiming ownership rights from as far back as 1914/1915. It is not the Plaintiffs case that her predecessors were not aware of Suit No. 17 of 1914 or the pleadings therein. On the contrary in para 10 of the Plaint a mention is made about this suit. This clearly shows that predecessors in title were aware of the suit and the claim made therein. They and/or the other heirs of Smt. Lakshamania, who were alive at that time, chose not to challenge Swaroop Sonar within 12 years of such assertion. As stated above Swaroop Sonar was not a mortgagee. So his title got perfected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omise in Suit No. 85 of 1959 dated the 11th April, 1962, between Ram, who was the plaintiff in that suit and is third defendant in the present suit, and Hanuman, Mahadeo, Sankatha and others of whom Hanuman, Mahadeo and Sankatha are defendants Nos. 1, 2 and 7 respectively in the present suit. At any rate the usufructuary mortgage is not a kind of transfer which could attract the applicability of Article 134 of the schedule to the Indian Limitation Act, 1908. Accordingly, I hold that the present suit could not be said to be barred by limitation under Article 134 by reason of the transfers made by Ex.A/4. In so holding the High Court conveniently ignores the fact that the redemption only took place in 1959. Long before that the right to make a claim, provided predecessors in title stepped into shoes of mortgagor, against Hanuman was already time barred. The redemption by Ramraj and Lakshman was not on behalf of the mortgagors but under an independent right claimed by them. Therefore the redemption did not extend limitation or give any fresh right to the 1st Respondent or her predecessors. It must be remembered that Ramraj and Lashman were permitted to redeem in their own right in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for purposes of computating the limitation of 12 years prescribed by the said Article 134. The predecessors-in-interest or the persons from whom the plaintiff had purchased the property were the members of the family of Narayan. Paltan was admittedly a collateral of Narayan and when defendants Nos. 5 and 6 pleaded in paragraph 18 of the written statement that the family members of Paltan were aware of the purchase of the property of Ram Charan Sonar as owner, they meant the predecessors-in-interest of the plaintiff from whom she had purchased the properties in suit. The sworn statement of Ram Lakhan Sahu (D.W.3) wipes out the plea contained in paragraph 18 of the written statement. But Ram Lakhan Sahu (D.W.3) had also stated in his examination-in-chief that : (translated into English for convenience to the Hon'ble Judges): When I got the sale deed executed by Ramlakhan Teli, at that time Sitaram had objected. And in cross-examination he stated: (translated into English for convenience to the Hon'ble Judges): Sitaram tells him as son of Palton but he is not his son. When Sitaram had come to make objection against my sale deed, I was knowing him even from before i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty and started staying there with his family. It is impossible to believe that the predecessors would not know that a stranger had started residing there. A simple enquiry would disclose under what rights he was staying there. Advisably there is no averment that the predecessors were not aware of this transaction or its nature and advisably nobody stepped into the witness box to state that they were not so aware. There was no burden or duty on the Defendants to prove knowledge on part of the Plaintiff. It is only after, and if, the Plaintiff first averred and then proved that the suit was within 12 years of the date they gained knowledge of the transaction that the burden will have shifted on the Defendant to show that the Plaintiff claims is false. In the absence of any such averment and proof the Plaintiff must fail. No question arose of the Defendants having to show that the Plaintiff or her predecessors had knowledge. By wrongly casting the burden on the Defendant and by ignoring the fact that the Plaintiff had neither averred nor proved that her predecessor did not have knowledge of the transaction prior to 12 years of the filing of the suit, the High Court has seriously e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e knowledge of the plaintiff and, therefore, the suit for redemption which has been filed beyond the period of 12 years could not be maintained. This Court held that once a mortgagee always a mortgagee. This Court further also observed as follows: It is seen that Bai Jivi or her successor-in-interest were not made parties either to the second mortgage executed on 31-5-1935 or to the suit for redemption nor any acknowledgment in that behalf has been pleaded or established. It is also seen that in the plaint the only pleading was that Hati became aware of the execution of the mortgage in favour of the second mortgagee in 1935. It is true that Bai Jivi had knowledge of assertion of any hostile title either as an owner or of any other title detrimental to her interest and acquiesced to it; perhaps the contention bears relevance. This Court further held that the mortgage of Kuber had been redeemed by Shivi and, therefore, Shivi only continued as a mortgagee and against her the period of limitation was 30 years. In the present case it is to be seen that there was an absolute sale in favour of Ram Charan Teli on 26th October, 1942. Then, on 4th December 1948, there was an absolute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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