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1969 SCC OnLine Raj 197 : 1969 WLN 242

In the High Court of Rajasthan

(BEFORE C.M. LODHA, J.)

Heera Lal and Another

Versus
Harivallabh
S.B. Civil Second Appeal No. 514 of 1964
Decided on April 21, 1969
The Judgment of the Court was delivered by
C.M. LODHA, J.:— This is defendant's second appeal arising out of a suit for
possession by redemption of mortgage of a house situated in village Phoolbaroda
District Baran.
2. It is common ground between the parties that the house in question belonged
originally to one Birda, who died on 8.10.1958. It is also not disputed at this stage of
litigation that this house was mortgaged by Birda with the defendant-appellants
Heeralal and his brother Kishanlal on Bhadwa Badi 1, S. 2015, i.e. in September 1958
for a consideration of Rs. 50/-. The plaintiff Hari Ballabh's case however is that after
the death of Birda which took place of 8-10-1958, his brother Prabhu, who was his
sole heir sold away the house in question to the plaintiff on 12.10.58 by an
unregistered sale deed also handed over possession of the same to him but on the
very next day, Heeralal dispossessed him. Hari Ballabh, therefore filed a suit for
possession under Sec. 9 of the Specific Relief Act 1877 on 18. 10 58, but the same
was dismissed on 24.5.1960. The plaintiff, therefore, instituted the present suit on
25.5.1960 for possession of the house in question on the basis of title. The plaintiff
also claimed Rs. 150/- as damages on account of demolition of construction in this
house by the defendants. The defendants filed a joint written statement and pleaded
interalia that Prabhu alone had no right to sell away the house as there was one more
brother of the deceased Birda by name Devilal and further that the sale deed was
fraudulent and without considration.

Page: 243

After recording the evidence produced by the parties, the learned Munsiff, Baran
granted a decree for redemption in favour of the plaintiff and directed him to deposit
Rs. 50/- being the mortgage money within a month of the date of the decree.
Aggrieved by the judgment and decree of the trial court, the defendants filed an
appeal and the plaintiff also filed cross-objection that they should be awarded Rs. 150/
- as damages on account of demolition of certain constructions by the defendants The
learned Senior Civil Judge, Baran by his judgment dated 6.8.1964 dismissed the
defendant's appeal but allowed the plaintiff's cross-objection in part and awarded a
sum of Rs. 50/- to him as damages. The defendants have, therefore, filed this second
appeal.

3. I have heard Mr. M.C. Bhandari, learned counsel for the appeallants. and S.K.
Jindal, on behalf of respondent-plaintiff at some length. Learned counsel for the
appellants has urged only two points in suport of the appeal. In the first he has
contended that it is fully established that Birda died leaving behind two brothers as his
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heirs viz. Prabhu and Devilal and the finding of the learned lower court that Devilal had
gone in adoption into another family is wholly unsustainable. He has, therefore, argued
that Prabhu alone who was only one of the heirs of the deceased Birda had no right to
sell away the whole of the house. The other point urged by Mr. Bhandari is that both
the lower courts have completely ignored the effect of the judgment given inter-
parties in the suit instituted by the plaintiff in respect of this very property under
section 9 of the Specific Relief Act. It is submitted that the allegation of the plaintiff in
that case that he had been dispossessed from the house in question within six months
from the date of the institution of the suit had been found false. The natural corollary
of this finding, according to the learned counsel, is that the plaintiff did not get
possession of the property in question at all. It is, therefore, urged that the sale being
unresisted and not having been accompanied by delivery of possesson is not sale in
the eye of law, & no title can accrue to the plaintiff on the basis of such a sale. It is
thus contended that the decree for possession granted by the lower courts on the
basis of such a sale which is void in the eye of law cannot be maintained No other
point was urged by the learned counsel and therefore I may confine myself to the
decision of the only two points set out above.
4. As regards the first point I may state at once that the only evidence given by the
plaintiff in support of his plea that Devilal had gone in adoption consists of the
statement of P.W. 2 Prabhu. Phabhu has stated that Birda's elder brother Dewa had
gone in adoption in his father-in-law's family about 30 years ago and therefore, he had
not rights in Birda's property,. Neither the name of the adoptive father has been
mentioned nor the date of adoption. Prabhu is himself thirty years old and
consequently can have no personal knowledge about the alleged adoption of Dewa. He
has not stated his source of knowledge in this respect. On the basis of this sort of
evidenee the lower court was not at all justified in holding the adoption of Devilal as
proved. I am already of the opinion that the finding of the lower court that Devilal's
adoption into another family has been established is basd on no legal evidence and
must be set aside. Even the learned counsel for the respondent did not contest this
position. Learned counsel for the respondent however, argued that Prabhu alone being
one of the heirs of Birda was competent to redeem the mortgage and therefore if he
sold away the house in question to the plaintiff, the latter stepped into the formers'
shoes and must be held entitled in law to claim redemption of the whole house. It is
no doubt well established that one of the mortgagors may claim the redemption in
respect of the whole mortgage but in order that he may successfully do so; it is
necessary that the other co-mortagors or their legal repre sentatives in case any one of
them is dead must be impleaded as parties 10 such a suit so that the controversy with
respect to the right of redemption may be finally set at rest in presence of all the
parties concerned. In the present case, however, Devilal has not been impleaded as a
party to the suit and therefore the contention of the learned counsel for the
respondent that the suit by the plaintiff alone for redemption of the whole of the
mortgage without impleading Dewa is maintainable cannot be accepted. Learned
counsel relied on Nainappa Chetti v. Chidimaram

Page: 244

Chetti (1 ). The facts as stated in the judgment of that case would show that the co-
owner of the remaining share of the mortgaged property was joined as defendant and
did not apply to be made plaintiff. In these circumstances it was held that the plaintiff
was entitled to redeem the whole mortgage although he was assignee of only ⅞th of
the equity of redemption. The principle laid down in that case is quite just and no
exception can be taken to it. This ruling no where lays down that one of the
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mortgagor's or one of the heirs of the mortgagor can bting a suit for redemption of the
whole mortgage without impleading the other co-mortgagors or their legal
representatives as parties to the suit for redemption. There would be nothing wrong in
permitting one of the co-mortgagors to file a suit for redemption in respect of the
whole mortgage; provided he joins the other co-mortgagors as parties to the suit. A
mortgage is indivisible and a suit for partial redemption of a mortgage cannot lie and,
therefore, one of the mortgagors can maintain a suit for redemption of the whole
mortgage provided he joins other co-mortgagors as parties to the suit. In the present
case, however, the other heir of Birdha having not being joined as a party, Prabhu or
for the matter of the plaintiff successor in title to Prabhu cannot maintain a suit for
redemption of the mortgage. The plaintiffs' suit for redemption must fail on this
ground alone as being not maintainable.

5. Turning to the next point it has been admitted by the plaintiff in the plaint itself
that he had previously filed a suit for possession of the property in question under
section 9 of the Specific Relief Act, but was unsuccessful. A certified copy of the
judgment dated 24.5.1960 in that suit which was registered as No. 429 of 1953 has
been placed on the record. At one stage learned counsel for the respondent contended
that this has not been tendered in evidence & therefore cannot be looked into, but
having found an endorsement on this document by the counsel for the plaintiff in the
trial court to the effect that the document was admitted, he gave up that position. He,
however, contended that the defendants had failed to raise a specific plea on the
question of resjudicata, that since the plaintiff had not put on the record copies of
plaint, written statement etc., of that suit to substantiate the plea of resjudicata and
therefore he should not be allowed to raise this point in second appeal. Learned
counsel for the respondent is no doubt correct that no such plea was raised by the
defendents in their written statement nor any issue was struck on the point It is also
correct that the copies of the plaint and written statement in that suit have not_ been,
filed in this case. But these difficulties pointed out by the learned counsel for the
respondent in the way of the defendants are however not insurmountable for the
simple reason that the plaintiff has himself admitted in para No. 3 of the plain V that
he had filed a suit in respect of this very property under section 9 of the specific Relief
Act and the same had been dismissed on 24.5.1960. The certified copy of the
judgment dated 24.5.1960 placed on the record has been admitted by the plaintiff.
The defendant's failure to submit copies of the plaint, and written statement or that
suit is also of no much consepuence as the pleadings of the partiestare cleary set out
in the judgment itself and are not in controversy. In this judgment it is stated that the
plaintiff's case is that the plaintiff had purchased the property in question from Prabhu
on 12,16, 1958 for a consideration of Rs. 50/- and had got possession of the same and
had subsequently been dispossessed. It is further mentioned in the judgment that the
suit was instituted on 19-10-1958. After discussing the evidence led by the parties the
learned Munsiff held that the plaintiff had failed to prove that he had ever got into
possession of the property in question and consequently the question of his being
dispossessed by the defendants did not arise & in this view of the matter the plaintiff's
suit under Sec. 9 of the Specific Relief Act was dismissed. Thus in face of this
judgment there is no room for argument that in the suit instituted under section 9 of
the Specific Relief Act by the plaintiff it was held that the plaintiff had not obtained
the possession of the property in quesion at the time of execution, of the sale deed in
his favour or there after. If this finding can be used against the plaintiff in the present
case also then there is no escape from the conclusion that the plaintiff did not get
possession

Page: 245
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of the property in pursuance of the unrgistered sale deed and consequently there was
no valid sale in favour of the plaintiff.

6. Section 54 of the Transfer of Property Act lays down that in the case of tangible
immovable property of a value of less than Rs. 100 a transfer by way of sale may be
made either by unregistered instrument or by delivery of the property. Admittedly the
sale deed is not registered, & if it is further found that the possession of the property
in question was not delivered in pursuance of the sale, the plaintiff can not take any
advantage out of this transaction of sale & his suit must fail on the simple ground that
he has no title to the property in question. The trial court and the first appellate court
have no doubt given a finding on the basis of the oral evidence led by the parties that
the plaintiff got possession of the property in question from the vendor Prabhu on the
date of the sale itself but this finding has been given in complete disregard of the
judgment given inter-parties with respect to this very prpeprty under section 9 of the
Specific Relief Act. It will, therefore, be necessary to examine the impact of this
judgment on the rights of the parties to the present suit.
7. Learned counsel for the appellants has submitted that the decision on the limited
question of possession and alleged dispossession given in the suit under section 9 of
the Specific Relief Act would operate as res judicata even though that decision would
not debar the plaintiff from filing a suit on the basis of title. In support of his
contention he has placed reliance on Rajgopal v. Sarat Kumari Debi (2 ) Hridayanath v.
Probodhchandra (3 ) and Padmanabha Gountia v. Dalganjan Patel (4 ) on the other hand,
learned counsel for the respondent has referred me to Chandk Karikar v. Sayyed Ali
Kaviraj (5 ), Gouranga Chandra v. Satish Chandra (6 ), and Mari v. Santaya (7 ).
8. As is clear from the language of section 9 of the Specific Relief Act 1887 a
dismissal of the suit under section 9 of the Specific Relief Act would not debar any
person from suing to establish his title to such property and to recover possession
thereof. Thus even if a person fails to recover possession in the summary proceedings
under section 9 of the Specific Relief Act on the ground of alleged dispossession within
six month from the date of filing of the suit, he can even thereafter bring a suit to
recover possession on the basis of title Thus having regard to the summary character
of the proceedings under section 9 of the Specific Relief Act and in view of the
language used in section 9 itself a subsequent suit for recovery of possession based on
title is not barred. But the question, however, is whether the decision of the issue
pertaining to the question of possession of the plaintiff within six months from the
institution of the suit under section 9 of the Specific Relief Act would have the effect of
resjudicata in the subsequently instituted suit based on title. In an earlier case of the
Calcutta. High Court, Chandek Karikar v. Sayad Ali Kaviraj (5 ) it was observed that a
judgment in a case under section 9 of the Specific Relief Act does not come under
section 41, nor under section 42 of the Evidence Act and it is relevant only under
section 13 & section 40 & 43 evidence of a transaction or instance where the right to
possession was claimed 01 disputed and also as evidence to show that there was such
a judgment or decree or in order either to find a further claim or to determine whether
cognizance should or should not be taken of a suit, or whether a trial should or should
not be held. Thus use to which the decree may be made in subsequent suit is only to
show that a right to possession was asserted and it was denied, and a suit was
instituted and it failed It was observed that the Legislature did not intend to give the
proceedings under section 9 of the character of finality which is essential to invest the
decision with a character which will make it operative as resjudicata. In later case
Rajgopal v. Sarat Kumari Debi (2 ) a Division Bench of Calcutta High Court, however,
held that where it was decided in a suit under section 9 of the Specific Relief Act that
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the plaintiff was not in possession of a certain property from a certain date, the
question

Page: 246

covered by that finding cannot be reagitated between the same parties and is res-
judicata in a suit for possession on declaration of plaintiff's title. In a still later decision
of the same court in Haridayanath v. Probodhchandra (3 ) the same view was adopted.
Thus according to the view taken in the later Bench decision of the Cal. High Court the
decision on the question of point of time at which the plaintiff was disposseed in a suit
under section 9 of the Specific Relief Act would operate as res judicata in a subsequent
suit instituted on the basis of title. Relying on these cases the Orissa High Court also
took the same vrew in Pramanabha Gountia v. Dalganjan Patel (4 ).

9. In Mari v. Santya (7 ) it was held that a decree under section 9 of the Specific
Relief Act would not operate as a bar against a person from filing the suit to establish
his title to the land and for an injuction restraining the other person from executing
that decree. Thus the point which I am called upon to decide was not at issue in this
ruling. The learned Judicial Commissioner in the Tripura case: Gouranga Chandra v.
Satish Chandra (6 ) following the earlier case of Calcutta High Court in Chandek Karikar
v. Sayad Ali Kaviraj (6 ) held that the proceedings under section 9 of the Specific Relief
Act cannot acquire the character of finality which is essential to invest the decision
with a character which will make it operative as resjudicata.
10. In the present case it cannot be disputed that the question whether the plaintiff
had acquired possession of the property in dispute at the time of sale and had been
subsequently dispossessed was a matter directly and subsequently in issue in the suit
matter directly and subtantially in issue in the suit under section 9 of the Specific
Relief Act and the same question is in issue in the present case also for find out
whether there was a valid sale in favour of the plaintiff by delivery of possession of the
property? The same parties are litigating under the same title and the Court in which
the suit under section 9 of the Specific Relief Act was instituted was competent to try
the present suit also. Thus all the essential requirements of res judicata so far as the
decision on the question of possession of the plaintiff within six months from the date
of the suit is concerned, are satisfied and it is not open to the plaintiff to reassert in
the present case that he had been in possession at any time within six months from
the date of the institution of the suit under section 9 of the Specific Relief Act, i.e.
18.10.1958. The sale took place on 12.10.1958 and the plaintiff's case is that he got
possession of the property the same day and was dispossessed on 13.10.1958-This
allegation stands completely negatived by the judgment in that suit under Sec. 9 of
the Specific Relief Act. In my opinion that finding operates as resjudisata against the
plaintiff, who cannot be allowed to reagitate in the present suit that he got possession
of the property on 12.10.1958 and was dispossessed on 13.10.1958. Consequently
there was been no valid sale of the property in question in favour of the plaintiff, and
the suit must, therefore, fail on this ground also. In the result I allow this appeal, set
aside the judgment and decree of the Lower Courts and dismiss the plaintiffs' suit. In
the circumstances of the case, however, I leave the parties to bear their own costs
through out.
11. Learned counsel for the respondent prays for certifying the case to be a fit one
for appeal to Division Bench. The valuation of the subject matter of the case is no
doubt very small but since the questions decided in the appeal are substantial
questions of law and may arise in a large number of cases, I allow the prayer and
certify the case to be a fit one for appeal to Division Bench.
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———
(1) ILR XXI Mad. 18
(2) AIR 1928 Cal. 768

(3) AIR 1933 Cal. 923

(4) XXII CLT (1959) 147
(5) AIR 1925 Cal. 1046
(6)
AIR 1955 Trip. 13
(7) AIR 1922 Bom. 216
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