2007 ALL SCR 937
SUPREME COURT

S.B. SINHA AND MARKANDEY KATJU, JJ.

Mohinder Singh Vs. State Of Punjab & Ors.

Civil Appeal No.325 of 2007,SLP (C) No.17736 of 2003

23rd January, 2007

Petitioner Counsel: RAJESH SRIVASTAVA
Respondent Counsel: CHANDRA PRAKASH PANDEY, SANJAY JAIN, MUKESH KUMAR, VINAY ARORA, SUDARSHAN S. RAWAT

Transfer of Property Act (1882), S.60 - Redemption - Several mortgages - Appellant claiming possession of mortgaged land belonging to T - Land again mortgaged to H and S - Second mortgage deed providing for Rs.425/- as Amanat to be kept by H and S for payment of Appellant's dues- Mortgagor alleging receipt of Rs.425/- from mortgagees wherefor receipt allegedly granted on 20/02/1979 - Heirs of T applying to Collector for redemption - Collector directing redemption on 28/04/1992 - Purported receipt not produced - H unsuccessfully questioning Collector's direction - Heirs of T selling part of land - Purchasers seeking possession in terms of Collector's order dt.28/04/1992 - Appellant's objections for possession rejected till High Court - Appeal to Supreme Court - Conduct of parties showing redemption of first mortgage while creating purported second mortgage - Both mortgagees family members - Second mortgage deed registered - Collector's direction attained finality - Appellant having failed to produce receipt, it cannot be considered by Supreme Court - Order showing consideration of all aspects of the matter - Supreme Court found appellant raised unnecessary objection in execution of redemption order - Appellant's contention barred by principles of constructive res judicata - Appeal dismissed with costs. (Paras 12, 13, 16 to 19)

JUDGMENT

S. B. SINHA, J.:- Leave granted.

2. Assailing an order dated 28.08.2002 passed by the Financial Commissioner (Revenue), Punjab, the appellant herein filed a writ petition before the Punjab and Haryana High Court which by reason of the impugned judgment dated 10.04.2003 has been dismissed.

3. The fact of the matter is as under:

One Telu Ram s/o. Hira, resident of Kotla Power House, Tehsil Anandpur Sahib District Ropar, Punjab mortgaged 38 K 14 M of land with the appellant and his brother Lachman Singh in equal shares on receipt of a sum of Rs.425/-. On consolidation of the land, new Khasra Numbers 159, 160, 536, 538, 541, 545, 546, 547 and 549 were carved out in lieu of the old Khasra Numbers.

4. Appellant herein claimed that he and his brother had been put in possession of the said mortgaged land. Without, however, redeeming the mortgage, Telu Ram again mortgaged the said land in favour of Harjap Singh, Sohan Singh, Surjit Singh and Manjit Singh. In the said deed of mortgage dated 21.11.1978, it was stipulated :

"I now mortgage 1/4th of the said land to Harjap Singh son of Shri Jagat Singh, 1/4 of the said land to Sohan Singh son of Shri. Lachman Singh @ Bakhtawar Singh adopted son of Chanan Singh and ½ of the said land in equal shares to Surjit Singh and Manjit Singh sons of Mohinder Singh son of Shri Jagat Singh, residents of Badhal, Tehsil: Anandpur Sahib for Rs.5,000/- the half of which is Rs.2,500/- and received Rs.4,075/- and Rs.500/- towards expenditure of registration and Rs.425/- is kept as Amanat with the mortgagees for being paid to Lachman Singh and Mohinder mortgagees which is to be paid to them and a receipt is to be obtained for the said payment. The possession of the land is given today. The income of the land will be adjusted against the interest of the mortgage money."

5. However, the mortgagors allegedly received the said sum of Rs.425/- from the mortgagees wherefor a receipt was allegedly granted on 20.02.1979. Indisputably, an application for redemption of mortgage was filed by the heirs and legal representatives of said Telu Ram before the Collector of the District on 17.06.1991.

6. By a judgment and order dated 28.04.1992, the Collector directed redemption of the said mortgaged property. It is not in dispute that the purported receipt dated 20.02.1979 had not been brought on records in the said proceedings.

7. The contention of the appellant that the same could not be done as he or his brother were not parties in the said proceedings, however, appears to be misplaced as it is stated at the bar that the endorsement was made in the deed of second mortgage itself.

8. A civil suit was filed by Harjap Singh and others questioning the said order of the Collector dated 28.04.1992. A decree was passed but an appeal thereagainst was filed by the heirs and legal representatives of Telu Ram before the District Judge, Ropar which was allowed by an order dated 03.03.1997. A second appeal preferred by the said Harjap Singh and others has been dismissed by the High Court.

9. Some of the lands in the mean time were sold by the heirs and legal representatives of Telu Ram in favour of Bhagat Singh and others who filed an application before the Assistant Collector, 1st Grade, Anandpur Sahib, District Ropar for possession of the lands in terms of the order of the Collector dated 28.04.1992. Objections filed by the appellant in the said proceedings were rejected. However, an appeal was preferred thereagainst by the appellant which by reason of a judgment and order dated 11.06.2002 was allowed. A second appeal preferred by the respondents herein before the Financial Commissioner Revenue, as indicated hereinbefore, was accepted.

10. It is not in dispute that the second mortgagees were the family members of the appellant and his brother.

11. It has also not been disputed that the matter had come up for consideration before this Court on an earlier occasion from a judgment and order passed by the High Court in the second appeal and the said special leave petition was dismissed. The direction for redemption of mortgage issued by the Collector, therefore, attained finality.

12. The contention of the appellant, that keeping in view of the fact that the first mortgage was not redeemed, the second mortgage could not have been directed to be redeemed, in the facts and circumstances of the case, is misconceived.

13. From the conduct of the parties, it is evident that while creating the purported second mortgage, the first mortgage was redeemed. Harjap Singh is the brother of Mohinder Singh, Sohan Singh is the son of Lachman Singh, Surjit Singh and Manjit Singh are the sons of Mohinder Singh. The second mortgage deed was registered. There was no reason why it was not acted upon.

14. The story that the aforementioned sum of Rs.425/- was taken back from the mortgagees by said Telu Ram admittedly had not been proved. It has been accepted before us that the said contention had not been raised in the earlier proceedings. On our query as to whether the said receipt had been exhibited before the concerned authorities, it has been accepted that the said receipt was not duly proved and marked as an exhibit in the proceeding before the Collector.

15. In the civil suit, a finding of fact had been arrived at that the order for redemption in favour of Telu Ram and Radha Krishan was valid in law. As indicated hereinbefore, the said decree passed by the Civil Court attained finality.

16. Contention of the learned counsel for the appellant that the factum in regard to the issuance of the said receipt having not been brought on records in the earlier proceedings, the impugned order cannot be sustained, in our opinion, is wholly fallacious. If the receipt in question dated 20.02.1979 was to be brought on record, it was for the appellant to do so. He having failed to do so, in our opinion, now cannot be permitted to turn round and contend that the said receipt should be taken into consideration by this Court.

17. The Financial Commissioner in his order dated 28.08.2002 has taken into consideration all aspects of the matter. It has been found that miscarriage of justice had taken place.

18. Keeping in view the factual background obtaining in this case, we have no hesitation to hold that the appellant herein had raised unnecessary objections in execution of the order of redemption passed by the Collector. Even otherwise, the contention of the appellant is evidently barred by the principles of constructive res judicata. In any event, the said purported receipt having not been proved in accordance with law, no reliance can be placed thereupon.

19. For the reasons aforementioned, there is no merit in his appeal which is dismissed accordingly with costs. Counsel's fee assessed at Rs. 25,000/-.

Appeal dismissed.