Mortgage – Redemption of – Suit for redeeming the mortgaged properties, filed by plaintiffs inter alia against Respondent-Defendant No.2 – Respondent resisted the suit inter alia contending that property in old Survey No.988 belongs to him– Trial court passed the final decree holding that the plaintiffs are entitled to redeem the suit property and that old Survey No.988 which the respondent claimed ownership of, cannot be exempted from the suit property – Respondent filed appeal, which was dismissed by First Appellate Court – High Court allowed the second appeal of respondent – On appeal, held: In view of the objections repeatedly filed by the respondent reiterating that old Survey No.988 should be excluded from the properties to be partitioned, the trial court ought to have held an enquiry and directed the parties to adduce evidence as to the right claimed by the respondent in old Survey No.988 – Though, the parties are fighting litigation for more than five decades, but in order to meet the ends of justice, judgment of High Court and the courts below are set aside and matter remitted to trial court for deciding it afresh – Directions issued – Code of Civil Procedure, 1908 – s.97.
Allowing the appeal, the Court
HELD: 1.1 An Advocate-Commissioner was appointed to measure the suit properties according to the boundaries contained in the documents filed in the suit and to locate the properties contained in the Survey numbers 990, 983-A and 988. Right from the beginning, while filing the written statement and also the objections filed to the Commissioner’s Report, the respondent-second defendant contended that old Survey No.988 (R.S. No.123/9) belongs to him. [Paras 9, 10] [515-F; 516-A-B]
1.2 The Commissioner filed its Preliminary Report on which the respondent filed detailed objections stating that the Commissioner, while locating Survey No.988, did not follow the boundary descriptions contained in the documents. Based on the objections filed by the respondent, the Advocate-Commissioner revisited the property and filed his Report noticing Survey No.988 falls within the description of the suit properties. [Paras 11, 12] [516-C-D; 517-B-C]
1.3 Appellant-third plaintiff filed detailed objections to the Commissioner’s Report stating that Survey No.988 cannot be excluded from the properties to be partitioned. The Respondent also filed detailed objections to the Commissioner’s Report. Considering the objections repeatedly filed by the respondent reiterating that Survey No.988 falls within the description of the suit properties and that should be excluded from the properties to be partitioned, the trial court ought to have held an enquiry and directed the parties to adduce evidence as to the right claimed by the respondent in old Survey No.988 (R.S. No.123/9) and what was the basis on which the possession of the respondent was upheld in the proceedings under Section 145 Cr.P.C. and in CRP No.45 of 1992. [Paras 13, 14] [517-E-F; 518-D]
1.4 As per Section 97, CPC, where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree. Of course, the respondent did not file the appeal against the preliminary decree challenging its correctness. But as pointed out by the respondent, in the description of the suit properties, Survey No.988 was not shown. As pointed out by the High Court, in para No. (13) of the written statement, respondent clearly averred that he is the owner of the adjoining property in Survey No.988 in which the plaintiffs and the other defendants have no right and that the third defendant is residing in a building belonging to the respondent in the said Survey No.988 on rental basis. In spite of the objections raised by the respondent as to the boundaries and description of the suit properties and also claiming right in Survey No.988 stated to be falling within those boundaries, the plaintiffs did not amend the description of the suit properties by bringing in Survey No.988 in the suit property. It was in this context, in their written statement, the defendants have stated that “the defendants have no objections to surrender the mortgage right in respect of Plaint B Schedule items…..”. [Para 16] [518-G-H; 519-A-C]
1.5 Two Commissioners earlier appointed have inspected the suit properties and filed their Reports stating that the suit properties were not identifiable. Only when the AdvocateCommissioner inspected the suit property, he noticed that Survey No.988 was falling within the description of the boundaries stated in the Plaint. Since the description of the suit property did not contain Survey No.988, the fact that the respondent did not prefer appeal against the preliminary decree, cannot be put against the respondent. [Para 17] [519-D-E]
1.6 In view of the stand taken by the respondent that he is entitled to the adjoining property in Survey No.988 by virtue of the sale deed of the year 1951 and the consistent objections raised by him to the Commissioner’s Report, in the final decree proceedings, the trial court ought to have directed the parties to adduce evidence to enable the court to ascertain the truth as to the correct description of the suit property and also the right claimed by the respondent in Survey No.988. The parties are fighting litigation for more than five decades; but in order to meet the ends of justice, the impugned judgment of the High Court and the courts below are liable to be set aside and the matter be remitted to the trial court for deciding the matter afresh. It is made clear that after the matter is remitted to the trial court based on his affidavit, second plaintiff is not entitled to put forth any claim. It is also made clear that the locus of third plaintiff to pursue the matter also shall not be called for question nor be challenged. [Para 18, 19] [519-G-H; 520-G-H]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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