G.D Khosla, C.J:— This appeal under clause 10 of the Letters Patent arises out of a declaratory suit filed under section 12 of the PEPSU Redemption of Mortgages Act.
2. The suit was decreed by the trial Court and this decision was upheld on appeal by the Additional District Judge. A second appeal to this Court, however, succeeded, and now the plaintiffs have come up under clause 10 of the Letters Patent.
3. The facts briefly are that land, which originally belonged to Bakhtawar Singh, was mortgaged for a sum of Rs. 9,200 in favour of Bagga Singh two-thirds, and in favour of respondents 6 and 7 one-third. A further charge of Rs. 500/- was created in favour of Bagga Singh. By means of a sale-deed executed on 19th April, 1957 Bakhtawar Singh sold this land together with some other land, with which we are not concerned, to the appellants. The appellants then sought to redeem it. They redeemed one-third of the land from respondents 6 and 7 on paying them one-third of the mortgage money. Bagga Singh, however, declined to allow redemption of his land, and so the appellants made an application to the Collector under the PEPSU Redemption of Mortgages Act. They claimed chat they were entitled to redeem the mortgage on payment of Rs. 6,633/5/4. This application was rejected by the Collector, and under section 12 of the Act the present suit was filed by the plaintiffs. The suit was decreed, and it was held, inter alia, that there was an additional charge of Rs. 500/- created by Bakhtawar Singh and not of Rs. 1200/- as alleged by the respondents. An objection regarding the jurisdictional value of the suit was also overruled, and it was held by the trial Court that since it was a case under section 12 of the Redemption of Mortgages Act, the relief claimed was purely declamatory and so the value of the mortgage could not be equated with the jurisdictional value of the suit. Upon all these points the decision of the trial Court was upheld by the first appellate Court.
4. When the matter came before Shamsher Bahadur, J., he took the view that under section 1(4)(b) the Collector had no jurisdiction to entertain an application in respect of this mortgage, because the principal money secured under the mortgage exceeded Rs. 5,000/-; the redemption of Mortgages Act, therefore, did not apply to this mortgage, and a suit under section 12 could not be instituted. He thereupon allowed the appeal and dismissed the suit.
5. It is pointed out before us that the total area of this land is 89 bighas 10 biswas. This is considerably less than fifty acres, and sub-section (4) of section 1 is in the following terms:—
“(4) It shall apply only to mortgages of land—
(a) in which, whatever the mortgage money, the land mortgaged, after excluding the area of any share in the common land of the village or of a sub-division of the village appertaining thereto and mortgaged therewith, does not exceed in area 50 acres; or
(b) in which, whatever the area, the principal money secured under the mortgage does not exceed 5,000 rupees:
6. It is clear that the only type of mortgage which is excluded from the application of the Act is a mortgage in which the area exceeds fifty acres-and also the principal money secured exceeds Rs. 5,000/-. All other mortgages are covered by either clause (a) or clause (b). The present case falls under clause (a), because the area does not exceed fifty acres and, therefore, even though the sum secured exceeds Rs. 25,000/-, the Act applies by virtue of the provisions of section 1(4)(a).
7. I may mention here that the learned Judge, who dealt with this matter in the original instance, has referred to the Punjab Redemption of Mortgages Act, but there is no difference between the wordings of the relevant sections of the Punjab Redemption of Mortgages Act and the PEPSU Redemption of Mortgages Act.
8. Our attention has been drawn to a Division Bench decision of this Court in Karnail Singh v. Basant Singh, Regular First Appeal No. 47.P of 1954, in which it was held that a mortgage, in which the principal money secured exceeded Rs. 5,000/-, would not be covered by the provisions of this Act. In that case the area involved was 207 bighas 15 biswas. It was apparently not pointed out or may have been conceded that the area exceeded fifty acres. Be that as it may, it is clear that this aspect of the matter was not then considered, and the wording of sub-section (4) makes it quite clear that clause (a) covers all mortgages in which the area does not exceed fifty acres, and clause (b) covers all mortgages in which the sum secured does not exceed Rs. 5,000/-. Therefore, reading these two clauses together, a mortgage falls beyond the provisions of this Act only if the area mortgaged exceeds fifty acres and also the amount of money secured exceeds Rs. 5,000/-. Only one of these conditions is satisfied in the present case and, therefore, the suit was competent.
9. Mr. Atma Ram, who appeared on behalf of the respondents, sought to raise two other points, namely, the question of jurisdictional value of the suit and the amount secured. He argued that the suit was heard, in the first instance, by a Subordinate Judge exercising powers of the second class only, and as the amount involved exceeded his pecuniary jurisdiction, the decree passed by him was a nullity. I have already observed above that the point regarding jurisdiction was considered by the trial Court and it was held that the jurisdictional value was correctly fixed at Rs. 483/-, because the relief claimed in the suit was a declamatory relief only. It must be remembered that this is not a case in which the relief is one of redemption of a mortgage. The suit was brought under the statutory provision which entitles the plaintiffs to sue for a declaration simpliciter. In fact, it compels them to do so and they cannot ask for any other relief That being so, the jurisdictional value was correctly determined and the Subordinate Judge, who dealt with the case, was competent to deal with it.
10. With regard to the second objection, this is putely a finding of fact. The lower appellate Court held that an additional sum of Rs. 500/- only was secured and not of Rs. 1,200/- as alleged by the defendant-respondents. This finding of fact cannot be challenged in second appeal, and the objection is, therefore, without any force.
11. In the result, therefore, this appeal must be allowed, and setting aside the judgment of the learned Single Judge, I would restore the decision of the trial Court as also of the lower appellate Court. The appeal would be allowed with costs.
12. D.K Mahajan, J.:—I agree.
Appeal allotted.