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Case Number

Regular Second Appeal No. 216 of 1956.

Attorney(S)

H.L Sarin,
F.C Mittal,

Judges

Bishan Narain, J.

Acts

provisions of the Punjab Restitution of Mortgaged Lands Act, 1938 (Punjab Act no. IV of 1938).
SECTION 2 PUNJAB RESTITUTION OF MORTGAGED LANDS ACT 1938
Act No. IV of 1938. Section 12 of the 1938 Act
Article 14 of the Indian Limitation Act
Article 14 of the Limitation Act
Punjab Act II of 1913

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Smart Summary

Summary of Opinion — Second Appeal by Subedar Major Sadhu Singh

Factual and Procedural Background

This appeal arises from a suit for possession of mortgaged land founded on a usufructuary mortgage dated 3 June 1914. The land originally belonged to Jagat Singh, father of the appellant (Subedar Major Sadhu Singh). Across time Jagat Singh executed successive mortgages: 27 June 1895 for Rs. 900; 16 November 1900 for Rs. 1,600 (which combined an earlier Rs. 900 and a new Rs. 700); 11 December 1905 for Rs. 2,000; and 3 June 1914 for Rs. 3,850 (the 1914 mortgage was executed in favour of Pal Singh, Tehl Singh and Mehl Singh, sons of Dhanna Singh).

On 6 August 1943 Sadhu Singh applied for restitution under the Punjab Restitution of Mortgaged Lands Act, 1938. On 6 March 1945 the Special Collector ordered redemption of the mortgages for about Rs. 77. The mortgagees appealed to the Commissioner at Lahore (the fate of that appeal is not recorded in the opinion). Following partition, the village fell in Indian territory (Tahsil Patti, District Amritsar). Sadhu Singh applied to the Assistant Collector, Amritsar and took possession on 21 May 1950. The mortgagees' further appeal was, according to the record, dismissed by the Financial Commissioner by an order dated 10 April 1953.

The mortgagees then filed the present suit on 6 July 1954 for possession under the 1914 mortgage. The trial Court granted possession to the plaintiffs; the Additional District Judge, Amritsar, dismissed the defendant's appeal and affirmed the trial Court's judgment. This second appeal by Subedar Major Sadhu Singh challenges those decisions.

Legal Issues Presented

Whether the suit for possession under the 1914 mortgage is barred by limitation, particularly by Article 14 of the Indian Limitation Act as applied to an order of the Special Collector dated 6 March 1945.
Whether the order of the Special Collector (extinguishing the mortgage under the Punjab Restitution of Mortgaged Lands Act, 1938) was validly made within the Collector's jurisdiction such that a civil suit to challenge it would be incompetent.
Whether the 3 June 1914 mortgage was independent of earlier mortgages (1895, 1900, 1905), because if independent the Special Collector had no jurisdiction under the 1938 Act to extinguish it.

Arguments of the Parties

Defendant-Appellant's Arguments

The suit is barred by limitation: Article 14 of the Indian Limitation Act (one-year limitation for suits to set aside orders made by officers in official capacity) applies to this case and, because the suit was not filed within one year of the Special Collector's order dated 6 March 1945, the suit is time-barred. Counsel relied on the Division Bench decision in Kaura v. Bam Chand (AIR 1925 Lah 385) in support of this proposition.
The order of the Special Collector was validly made within his jurisdiction under the restitution Act, and therefore a civil suit is not maintainable to contest that order; in other words, the Collector's extinguishment of the mortgage is conclusive and precludes the present action.
On the factual question of whether the 1914 mortgage was independent, the appellant contended that the lower courts' finding of independence was not warranted by the documents on record and that the original 1914 mortgage deed was not in his client's possession (the learned counsel took the court through certain documents to this effect).

The opinion does not contain a detailed account of the plaintiffs' legal arguments; their pleading is described only as alleging entitlement to possession under the 1914 mortgage.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kaura v. Bam Chand, AIR 1925 Lah 385	The decision applied a scheme under Punjab Act II of 1913: when a special Act declares an order to be conclusive, an aggrieved party must set it aside within the limitation period; a mortgagor's right to redeem can be barred if the action is brought later than one year from the Collector's order.	The court distinguished this precedent because it concerned Punjab Act II of 1913 (which permitted civil suits to challenge certain Collector's orders subject to Article 14). The court held that the present matter arises under the 1938 Act, which contains different jurisdictional provisions, and therefore Kaura v. Bam Chand did not govern the limitation question here.
State v. Paredoon Jijibhai Divecha, AIR 1934 Bom 434	Authority cited for the proposition that where an act or order of an officer is illegal or ultra vires, Article 14 of the Limitation Act does not apply and the order need not be set aside to be treated as a nullity.	The court relied on this authority (among others) to support the conclusion that Article 14 does not apply where the Collector's order is without jurisdiction; therefore limitation under Article 14 did not bar the suit if the Collector acted without jurisdiction.
P. B. Thiruvenkatacharyulu v. Secy, of State for India in Council, ILR 57 Mad 501 (AIR 1934 Mad 147)	Same principle as above: an ultra vires or illegal order does not require being set aside under Article 14; Article 14 is inapplicable in such cases.	The court cited this authority to reinforce the proposition that Article 14 does not apply where the impugned order is without jurisdiction, supporting the rejection of the appellant's limitation argument.

Court's Reasoning and Analysis

The Court proceeded in distinct analytical steps tied closely to the statutory framework and the documentary record:

Limitation issue:
- The appellant invoked Article 14 of the Indian Limitation Act and relied on Kaura v. Bam Chand to contend that the suit was barred because it was not filed within one year of the Special Collector's order (6 March 1945).
- The Court examined the statutory context: Kaura concerned Punjab Act II of 1913 where Section 12 permitted a party to sue but also declared certain Collector's orders to be conclusive until set aside. Article 14 prescribed a one-year limitation for suits to set aside such orders.
- By contrast, the Punjab Restitution of Mortgaged Lands Act, 1938 (Act No. IV of 1938) contains in Section 12 an explicit bar: no civil court shall have jurisdiction to entertain any claim to enforce any right under a mortgage declared extinguished under the Act, or to question the validity of proceedings under the Act.
- The Court concluded that the 1938 Act's provision differs from the 1913 Act: civil courts generally lack jurisdiction to set aside Collector's orders under the 1938 Act, except where the order was made without jurisdiction. When an order is without jurisdiction (ultra vires), it is a nullity and does not require being set aside; Article 14 therefore does not apply to such a void order. The Court cited authorities (including State v. Paredoon Jijibhai Divecha and P. B. Thiruvenkatacharyulu) for the proposition that Article 14 is inapplicable to ultra vires orders.
- Because it was conceded that a suit for possession under the 1914 mortgage, independently of the Collector's redemption order, was within time, the Court rejected the appellant's limitation contention.
Jurisdiction and independence of the 1914 mortgage:
- The Court noted that if the 1914 mortgage were independent of prior mortgages, the Special Collector had no jurisdiction under Sections 7 and 2 of the 1938 Act to extinguish it. This point was not disputed by the appellant's counsel in principle.
- The core factual dispute therefore became whether the 1914 mortgage was independent. The lower courts found it to be independent; the appellate Court had drawn an adverse presumption against the defendant for failing to produce the original 1914 mortgage deed.
- The Court reviewed the documentary evidence: the mutation entry for the 1900 transaction showed that the 1900 mortgage combined the earlier Rs.900 and a new Rs.700 (i.e. it was an addition to the 1895 mortgage); documents P.10 and P.17 showed the 1905 mortgage was in addition to previous mortgages; but the mutation (Ex. P.7) relating to the 1914 mortgage used language different from earlier mutations and did not mention prior mortgages.
- The original 1914 mortgage deed was not produced in proceedings; records showed the defendant had obtained custody of mortgage documents from the Collector in June 1950, and the index indicated a document executed by Jagat Singh in favour of Pal Singh — the only mortgage in favour of Pal, Tehl and Mehal Singh was the 1914 mortgage. From these facts the Court accepted the lower appellate Court's presumption that the defendant had the 1914 deed and deliberately failed to produce it.
- Given the distinct mutation language, the possession and non-production of the original deed by the defendant, and the lapse of nine years between the 1905 and 1914 transactions (allowing for the possibility that earlier mortgages might have been redeemed), the Court found no reason to interfere with the lower courts' conclusion that the 1914 mortgage was independent.
- Because the 1914 mortgage was independent, the Special Collector, Lahore, had no jurisdiction under the 1938 Act to extinguish it; the Collector's order therefore did not affect the plaintiffs' rights under the 1914 mortgage.
Resulting conclusion:
- On the combined legal and factual analysis, the Court concluded that the plaintiffs were entitled to decree for possession under the 1914 mortgage. The appeal was therefore dismissed.

Holding and Implications

Core Ruling: THE APPEAL IS DISMISSED WITH COSTS.

Consequences for the parties:

The plaintiffs' suit for possession under the 3 June 1914 mortgage was correctly decreed by the lower Courts and stands affirmed.
The Court rejected the appellant's limitation defence under Article 14 of the Limitation Act because the 1914 mortgage was found to be independent and the Collector's order, to the extent it purported to extinguish that mortgage, was beyond the Collector's jurisdiction under the 1938 Act.

Broader implications: The opinion does not record any pronouncement that it establishes a new legal precedent beyond applying existing principles (statutory interpretation of the Punjab Restitution of Mortgaged Lands Act, 1938, and the inapplicability of Article 14 to ultra vires orders). The immediate practical effect is the restoration of possession to the plaintiffs under the 1914 mortgage; no broader rule-making language is set out in the text.

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Subedar Major Sadhu Singh v. Chanda Singh

1. This second appeal has been filed by Subedar Major Sadhu Singn against the decision of the Additional District Judge, Amrit-sar, dismissing his appeal and affirming the judgment of the trial Court to the effect that the possession of the property in dispute should be given to the plaintiffs.

2. The land in dispute at one time belonged to Jagat Singh father of Subedar Sadhu Singh. On 27th June, 1895, he mortgaged his Jand with Dhanna Singh for Rs. 900/-. Then on 16th November, 1900 he mortgaged it again with Dhanna Singh for Rs. 1600/-. The third mortgage was effected by him on 11th December, 1905, in favour of Dhanna Singh for Rs. 2,000/- and finally the fourth mortgage was effected on 3rd June, 1914, for Rs. 3,850/-.

This time the mortgage was by Jagat Singh in favour of Pal Singh, Tehl Singh and Mehl Singh sons of Dhanna Singh. On 6th August, 1943 Sadhu Singh applied for restitution of the mortgaged land in the Court of the Special Collector, Lahore, under the provisions of the Punjab Restitution of Mortgaged Lands Act, 1938 (Punjab Act no. IV of 1938). Apparently this application was contested on behalf of the mortgagees and on 6th March, 1945, the Collector ordered redemption of the mortgages on payment of Rs. 77/-odd.

The mortgagees filed an appeal in the Court of the Commissioner at Lahore but its fate is not known in view of the partition of the country during the pendency of that appeal. The village in which the land in dispute is situate was a part of the Lahore District but on partition it fell to the territory of India & is now a part of Tahsil Patti, District Amritsar. Sadhu Singh then applied to the Assistant Collector, Amritsar for possession and he took possession of the property on 21st May, 1950.

Apparently the mortgagees again filed an appeal against the Special Collector's order but it was dismissed by the Financial Commissioner by his order dated 10th April, 1953. Thereupon the mortgagees filed the present suit on 6th July, 1954, for possession of the mortgaged land on the basis of the usufructuary mortgage dated 3rd June, 1914 out of which this appeal has arisen. The plaintiffs allege that they are entitled to possession of the land under the said mortgage deed. The suit was contested oh various grounds but it is not necessary to refer to them in this appeal.

The only two points that have been argued before me on behalf of the defendant-appellant ore that the suit is barred by time and that in any case the order of the Special Collector ordering redemption of the mortgages was within the jurisdiction of the Special Collector. and that a civil suit is not maintainable to contest that order. I shall first deal with the question of limitation.

The contention of tha learned counsel for the appellant is that Article 14 of the Indian Limitation Act applies to this case and as the suit was not filed within one year of the order of the Special Collector dated 6th March, 1945, the present suit is barred by time. Mr. Sarin in support of his argument has strongly relied on the decision of a Division Bench of this Court reported in Kaura v. Bam Chand, AIR 1925 Lah 385 (A). In that judgment the learned Judges were dealing with Punjab Act II of 1913 and it was laid down-

"When an order passed under a special Act is declared by that Act to be conclusive, it cannot be Ignored and no relief is open to the aggrieved party unless that order be set aside."

It was further observed that an individual who takes advantage of a summary procedure must suffer its disadvantages as well as enjoy its benefits. Accordingly it was held that a mortgagor's right to redeem which would otherwise.be with-in limitation is barred if the action is brought later than a year of the date of an order passed to the plaintiff's detriment by the Collector on an applcation under Punjab Act No. II of 1913.

Their Lordships were dealing with an Act in which it was laid down in Section 12 that any party aggrieved by an order under various sections of that Act may institute a suit to establish his rights in respect of the mortgage, but, subject to the result of such suit, if any, the order shall be conclusive. Under that Act it is, therefore, open to a party to challenge the order of the Special Collector by a suit filed in civil Court. Article 14 of the Indian Limitation Act prescribes a limitation of one year from the date of the order for a suit to set aside the order made by an officer In official capacity.

The present suit however relates to Act No. IV of 1938. Section 12 of the 1938 Act lays down that no civil Court shall have jurisdiction to entertain any claim to enforce any right under a mortgage declared extinguished under this Act, or to question the validity of any proceedings under this Act. Thus under the 1938 Act civil Courts have no Jurisdiction whatsoever to entertain a suit challenging the decision of the Collector extinguishing the mortgage.

This provision of law is very different' from section 12 of act No. II of 1913. When an order is passed under the 1938 Act then civil Court can not set aside that order unless it be held that the order was without any jurisdiction. The present case is precisely of that nature. The mortgagees' claim is that the order passed by the Special Col lector relating to the present mortgage was with out jurisdiction. When an order is passed with out jurisdiction or in excess of authority it is a nullity and need not be set aside.

If the act or an order of an officer is illegal or ultra vires it does not require to be set aside and Article 14 of the Limitation Act has no application vide inter alia Secy, of State v. Paredoon Jijibhai Divecha, AIR 1934 Bom 434 (B) and P. B. Thiruvenkatacharyulu v. Secy, of State for India Jn Council, ILR 57 Mad 501: (AIR 1934 Mad 147) (C). I am. therefore, of the opinion that Article 14 of the Indian Limitation Act has no application in this case. It is conceded that the suit for possession under the 1914 mortgage independently of the order of redemption made by the Collector is within time. Accordingly I reject this contention of the learned counsel for the appellant,

3. It was then argued that the order of the Special Collector was made validly in the exercise of jurisdiction vested in him and therefore this suit is not competent. Both the lower Courts have held that 1914 mortgage is independent of the previous mortgages. If this be so then the Special Collector would have no jurisdiction to extinguish it in view of Section 7 read with Section 2 of the Punjab Restitution of Mortgaged Lands Act, 1938. This is not disputed by the learned counsel for the appellant.

His contention is that the finding given by the lower Courts is not warranted by the documents on the record. After going through the various transactions given above the learned counsel pointed out that the mutation relating to the mortgage of 1900 discloses that the transaction of that year consisted of the previous mortgage of Rs. 900/- and of the new mortgage for Rs. 700/-bringing the total to Rs. 1600/-. It is clear to my mind from this mutation entry that the 1900 transaction was a mortgage in addition to the 1895 mortgage.

Similarly the documents P. 10 and P. 17 show that the 1905 mortgage was is addition to the previous mortgages. The question however, still remains whether the 1914 mortgage was independent of the previous mortgages or not. The original, mortgage deed is not forthcoming on this record. The lower Courts have held that this document is in possession of the defendant who has not. deliberately produced it in spite of the application by the mortgagees asking him to do so.

The lower appellate Court has drawn a presumption against the defendant to the effect that if that mortgage deed had been produced it would have shown that the 1914 mortgage is independent of the previous mortgages. This is a finding of fact, The learned counsel took me through certain documents to show that the original mortgage deed is not in possession of his client. But considering the entire matter it is clear that the defendant got it back from the Special Collector's Court. Sadhu Singh made an application (Ex. p.6) on 13th June, 1950, to the Collector, Amritsar, for return of the mortgage deed dated 27th June, 1895. and other mortgages.

Next day the necessary order was made by the Collector and the defendant took possession of the document at pages 23/24 of the file (Ex. P.4). The index Ex. P.3 shows that on those pages was a document executed by Jagat Singh in favour of Pal Singh. The only mortgage that was effected by Jagat Singh, father of Sadhu Singh, in favour of Pal Singh, Tehl Singh and Mehal Singh was the mortgage of 1914 and the previous mortgages had been executed in favour of Dhanna Singh alone. From this it is clear that the defendant got possession of the original mortgage deed of 1914 and the lower appellate Court was right in drawing a presumption against the appellant for not producing that document in Court.

Moreover the mutation relating to this mortgage shows that it was an independent transaction. It is clear from the mutation 17 that it was an independent mortgage. The language used in the mutation relating to previous mortgages is different from the language used in tills mutation. In the previous mutations the older mortgages are mentioned but not in Ex. P.7. The reasonable Inference is that the 1914 document had no connection with the previous mortgages.

There was a lapse of about nine years between the mortgages of 1905 and 1914 and it is quite possible that all the mortgagors up to 1905 may have been redeemed earlier and this mortgage was effected not in connection with the previous mortgages but in connection with some other requirements. I, therefore, see no reason to Inter- . fere with this finding of the lower Courts that the 1914 mortgage is independent of the previous mortgages.

That being so the Special Collector. Lahore, had no jurisdiction under the 1938 Act to extinguish this mortgage. It is conceded that if the order of the Special Collector does not affect the rights of the parties then the plaintiffs are en- titled to a decree for possession under the 1914 mortgage. I, therefore, hold that the plaintiffs' suit was rightly decreed by the lower Courts. (4) The result is that this appeal fails and is dismissed with costs.

Subedar Major Sadhu Singh v. Chanda Singh

Summary of Opinion — Second Appeal by Subedar Major Sadhu Singh

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Defendant-Appellant's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Subedar Major Sadhu Singh v. Chanda Singh

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