Dr. A. P. Thaker, J
1. The present Second Appeal is filed under Section 100 of the Civil Procedure Code by the original defendant no.2 against the judgment and decree
passed by the Joint District Judge, Sabarkantha at Himmatnagar in Civil Appeal No.30 of 1985, whereby the Appellte Court has partly confirmed the\
judgment of the Trial Court i.e. of the Civil Judge Junior Division, Modasa passed in Regular Civil Suit No.39 of 1980 and thereby partly dismissed the
appeal filed by the defendant no.2.
2. The present Second Appeal has been admitted for the following substantial questions of law:-
“(i) Whether the Lower Appellate Court has materially erred in law in passing a decree for possession of the suit land in favour of the plaintiff in
the absence of any relief for the redemption of mortgage which was in favour of the defendant no.2 on the date of the decree.
(ii) Whether the Lower Appellate Court has materially erred in law in not holding that in view of the provisions contained in order 34 of the Civil
Procedure Code and the provisions contained in section 58 read with section 60 of the Transfer of Property Act.
(iii) Whether the Lower Appellate Court has materially erred in law in not holding that till the mortgage in favour of the defendant no.2 subsisted the
plaintiff was entitled to get possession over the suit land by the mortgagee in view of the principle that once a mortgage in view of the principle that
once a mortgage always a mortgage.
(iv) Whether the Lower Appellate Court has materially erred in law in not holding that the sale deed of part of the equity of redemption executed by
defendant no.1 as mortgager in favour of the plaintiff was invalid and hence the plaintiff did not acquire any title with the suit land.
(v) Whether the Lower Appellate Court has materially erred in law in not holding that as admittedly over the suit land a part was created in favour of
the co-operative society and it was subsisting on the date of the suit, the plaintiff having not proved that prior permission was obtained before the
execution of the sale deed irrespect of the suit land in his favour, the same was invalid by virtue of the provisions contained in section 48 of the Gujarat
Co-operative Societies Act.
(vi) Whether the Lower Appellate Court has materially erred in law in not holding that admittedly the sale over the suit land being in respect of
fragmentation it was void, in view of the provisions contained in the Prevention of Fragmentation and Consolidation of Holding Act.â€
3. The respondent no.1 herein is original plaintiff, whereas, the respondent no.2 herein is defendant no.1 before the Trial Court, who has died during
the pendency of the appeal and hence, it is abetted, against her.
4. For the brevity and convenience, the parties are referred to herein as plaintiff and defendant no.2.
5. The plaintiff has instituted a suit alleging that the land survey no.331 of village Ambaliyara admesuring 7 acre 15 gunthas was originally mortgaged
with him for Rs.5,200/- on 02.06.1969 by the Registered Mortgage deed by the defendant no.1. The mortgage was redeemed on 20.01.1972 and on
the same day, eastern half portion of the said land admeasuring acres 3 â€" 27.5 gunthas was sold to him by a registered sale deed for consideration
of Rs.9,000/-. The remaining half portion of the western side was also given to the plaintiff for cultivation on crop share basis. According to the
plaintiff, thereafter on 21.03.1978, the southern half portion of that western part of survey no.331 admeasuring about 3 bigha was mortgaged to him
for Rs.4,201/- by the defendant no.1. Thereafter, the defendant no.1 has executed a registered sale deed on 08.12.1978, in favour of the plaintiff and
sold the southern part of western half portion of survey no.331, which was admeasuring about acres 1-33.75 gunthas for Rs.7,000/-. It is contended
that at the relevant time, the entry cannot be mutated in the revenue record regarding the said sale deed as the dues of the Co-operative Society was
not paid by the defendant no.1.
5.1. It is contended by the plaintiff that the defendant no.2 (i.e. appellant herein) was within the knowledge that the plaintiff had purchased the said
land by registered sale deed dated 08.12.1978 and yet he got executed sale deed from defendant no.1 for the western half portion of the survey
no.331 admeasuring 3 acres -27 gunthas for consideration of Rs.12,000/-. According to the plaintiff, this sale deed is executed by the defendant no.2
by administering fraud and misrepresentation to the defendant no.1. It is also contended that the defendant no.2 managed to get mutation entry in his
favour with the help of Talati and committed trespass over the suit land on 20.05.1979.
5.2. On the aforesaid basis, the plaintiff filed a suit to get possession of the suit land from the defendant no.2 along with the damages @ Rs.4,200/- per
year and mesne profit till recovery of possession and also for cancellation of the sale deed executed between the defendant no.1 and 2 in respect of
the suit land dated 15.05.1979.
6. It appears from the record that the defendant no.1 Jiviben has filed written statement at exhibit 4 and supported the case of the plaintiff and virtually
admitted the pleadings of the plaintiff.
7. It appears from the record that the defendant no.2-appellant herein has resisted the suit by filing written statement at exhibit 15. The defendant no.2
has admitted the fact that the entire land survey no.331 was mortgaged to the plaintiff and it was redeemed by the owner on 20.01.1972. However,
the defendant no.2 has denied that the southern part of western half portion of survey no.331 admeasuring about 3 bigha was mortgaged to plaintiff by
defendant no.1 on 21.03.1978. He has also denied that the northern part of the western half portion of the said land was being cultivated by the
plaintiff on crop share basis. According to the defendant no.2, in fact, the defendant no.1 had mortgaged western half portion of the survey no.331
admeasuring acres 3-27.5 gunthas by registered mortgage deed dated 01.06.1978 to him and since then defendant no.2 was cultivating it as a
mortgagee. It is also contended that, thereafter, on 15.05.1979, the said land was sold to him by defendant no.1 by registered sale deed and the
mutation entry to that effect is also made in revenue records. Defendant no.2 has denied that the plaintiff had purchased southern part of western half
portion of survey no.331 by registered sale deed, dated 08.12.1978 for Rs.7,000/-. It is contended by the defendant no.2 that even if the plaintiff has
got executed any such sale deed, he has taken disadvantage of ignorance of defendant no.1, who is a widow, and mislead by false promise. According
to defendant no.2, there is collision between the plaintiff and defendant no.1. The defendant no.2 has also denied that the suit land was in possession
of the plaintiff and defendant no.2 has committed trespass over it.
7.1. It is contended by the defendant no.2 that even if the plaintiff had got executed a registered sale deed from defendant no.1, it is a result of fraud
and misrepresentation played upon her. It is further the stand of the defendant no.2 that the sale deed is also against the legal provisions of Gujarat
Prevention of Fragmentation and Consolidation of Holdings Act and hence it is void. According to the defendant no.2, the plaintiff cannot acquire title
by such void sale deed and hence he is not entitled to file the present suit to recover the possession of the suit land and mesne profit from the
defendant no.2 and to get relief for cancellation of the sale deed executed in favour of the defendant no.2 by defendant no.1. The defendant no.2 has
permitted to dismiss the suit with cost.
8. It appears from the record that the Trial Court has framed issues at exhibit 16. After perusing the evidence on record and considering the
submissions made on behalf of both the sides, the Trial Court came to the conclusion that the plaintiff had purchased 1 acres 33.75 gunthas of land of
survey no.331 from defendant no.1 on 08.12.1978 and had acquired title over it. The Trial Court has also held that the defendant no.1 has fraudulently
and illegally executed sale deed for half portion of the survey no.331 on 15.05.1979 in favour of the defendant no.2 and the defendant no.2 cannot
acquire legal title due to such sale deed in respect of land in question. Accordingly, the Trial Court passed the judgment and decree restraining
defendants, their agents and servants permanently from entering upon the suit land admeasuring 1 acre and 33.75 gunthas of land of survey no.331.
The Trial Court has also declared that the sale deed dated 15.05.1979 in favour of defendant no.2 was invalid and unenforceable. However, the Trial
Court has rejected the prayer for mesne profit.
9. Being aggrieved by the said judgment and decree of the Trial Court, defendant no.2 has preferred the First Appeal before the District Court,
Sabarkantha at Himmatnagar, wherein it was registered as Civil Appeal No.30 of 1985. The said appeal came to be heard by the Joint District Judge,
Sabarkantha at Himmatnagar, the Joint District Judge has framed the following points for determination in the said appeal:-
“(1) Whether the plaintiff has proved that southern part of western half portion of S.No.331 admeasuring Acre-1 â€" 33.75 Gunthas was sold to
him by defendant no.1 by a registered sale deed dated 8-12-78?
(2) Whether the plaintiff has proved that he has acquired legal title to the suit land on 8-12-78?
(3) Whether the plaintiff proves that the defendant no.2 has not acquired any legal title in the suit land by virtue of sale deed taken by him from
defendant no.1 on 15-5-79?
(4) Whether the plaintiff was entitled to get the reliefs claimed by him?
(5) Whether the judgment and decree passed by the trial court are legal and proper?
(6) What order?â€
10. After hearing both the sides and considering the material placed on record, the First Appellate Court has answered point no.1 to 4 in affirmative
whereas point no.5 partly in affirmative and partly in negative and has ultimately partly allowed the appeal by modifying the decree to the effect that
permanent injunction passed against the defendants for the entire land came to be set aside and the same is modified to the effect that the plaintiff to
recover vacant possession of 1 acre and 33.75 gunthas of land at southern portion of western half portion of survey no.331 from defendant no.2 or
anybody claiming under him. It is further declared by the appellate Court that the sale deed dated 15.05.1979 taken by the defendant no.2 from
defendant no.1 is held invalid and unenforceable so far as it purports to sell of 1 acre 33.75 gunthas land at southern part of western half portion of
survey no.331 only.
11. Being aggrieved by the aforesaid judgment and decree, the defendant no.2 has preferred this Second Appeal. During the pendency of the Second
Appeal, the original defendant no.2 has died and therefore his legal heirs have been joined as appellants herein. However, it appears that the
respondent no.2 herein original defendant no.1 has expired and no heirs has been joined and therefore the appeal against the original defendant no.1
i.e. respondent no.2 herein came to be ordered to be abetted as per the order dated 13.09.2010.
12. Heard learned advocates appearing for the respective parties. Learned advocates on both the sides have submitted written submissions. Perused
the same, along with the decisions cited at bar and the Records and Proceedings of the Trial Court along with the judgments of both the Courts below.
13. The main contention of the defendant no.2 is that the First Appellate Court has materially erred in law in passing the decree of possession of suit
land in favour of the plaintiff in absence of any relief for redemption of mortgage which was in existence in favour of the defendant no.2 on the date
of decree.
According to the defendant no.2, as per the contention of the plaintiff, the plaintiff has sought for possession of the suit land and cancellation of the
sale deed dated 15.05.1979 as well as damages and mesne profit. According to the defendant no.2, that on the date of the alleged sale deed, dated
08.12.1978 in favour of the plaintiff, the registered mortgage deed dated 01.06.1978 of one half portion of the western side of the land admeasuring 3
acres and 27.5. gunthas was in favour of the defendant no.2, was in existence and yet the plaintiff had not prayed for redemption of said mortgage.
According to the submissions of learned advocate for the defendant no.2, thus, in absence of any relief prayed for the redemption of mortgage, the
registered sale deed in favour of the plaintiff is not valid.
13.1. It is also submitted that on behalf of the defendant no.2 that the First Appellate Court ought to have held that till mortgage in favour of the
defendant no.2 subsisted, plaintiff was not entitled to get possession over the suit land by virtue of sale deed in his favour executed by the mortgagee
in view of the principles that once a mortgage always a mortgage.
13.2. It is also submitted by the learned advocate for the defendant no.2 that the First Appellate Court has materially erred in law in not holding that
the sale deed or part of the equity redemption executed by defendant no.1 as a mortgagee in favour of the plaintiff was invalid and hence the plaintiff
did not acquire any title over the suit land. It is further contended that when the defendant no.1 being mortgagee, the entire western half portion of the
land bearing survey no.331 admeasuring 3 acres and 27 gunthas, by the registered mortgage deed dated 01.06.1979 in favour of the defendant, the
defendant no.1 could not subsequently split up the equity of redemption and could not sell half of the equity of redemption to the present plaintiff by the
registered sale deed dated 08.12.1978.
13.3. According to the submissions made on behalf of the respondent no.2, when there was mortgage in existence unless and until it is redeemed, the
defendant no.1 could not execute any sale deed in favour of the plaintiff. It is also contended that the sale deed executed in favour of the plaintiff for
the portion of the land by the defendant no.1 was later in point of time then the mortgage executed between the respondent no.1 and defendant no.2.
It is also contended that the defendant no.2 was in possession as a mortgagee and therefore the plaintiff cannot get the possession of the suit unless
the mortgage was redeemed. It is also contended that till the existence of the mortgage in favour of the defendant no.2, the plaintiff is not entitled to
get possession in his favour, in view of the principles that once mortgage always a mortgage and therefore, the plaintiff is not entitled to get any
decree or possession.
13.4. It is also contended that even under Section 60 of the Transfer of Property Act, the plaintiff cannot get title or the possession of the suit
property. It is submitted that the right of redemption can be extinguished as provided in provisions of Section 60 of the Transfer of Property Act,
wherein in the present case, there is no prayer for redemption of mortgage, which was in favour of the defendant no.2 on the date of decree, the
decree for possession cannot be passed in favour of the plaintiff.
13.5. The defendant no.2 has also raised contention that as per the averments made in the plaint itself, there was charge of Co-operative Societies
over the said land and therefore in absence of any prior permission from the Co-operative Society as contained in Section 48 of the Gujarat Co-
operative Societies Act, the plaintiff cannot have any title over the suit land and the alleged sale deed executed in favour of the plaintiff by the
defendant no.1 is not legal and valid.
14. On the aforesaid all these grounds, it is prayed by the defendant no.2 to set aside the impugned judgment and decree passed by both the Courts
below and to dismiss the suit of the plaintiff. Learned advocate for the defendant no.2 has relied upon the decision reported in 1993 GLH 146. He has
prayed to allow the present appeal with the cost.
15. Per contra, it is submitted on behalf of the original plaintiff that there is concurrent findings of both the Courts below to the effect as under:-
“1. The concurrent findings of both the Courts below is to the extent that
a. the suit is filed in respect of ½ i.e. 1A 33.75G of land falling on western side of Survey No.331.
b. R-1 plaintiff had purchased land admeasuring 1A 33.75G i.e. % of total land on western side of Survey No.331 from D-1 by registered sale deed
dated 8.12.1978;
c. D-2 had obtained sale deed dated 15.5.1979 executed fraudulently from D-1 for the entire western side of Survey No.331 admeasuring 3A 27.5G
since by earlier sale deed dated 8.12.1978, D-1 had sold to R-1 Plaintiff land admeasuring 1A 33.75G.
d. The sale deed dated 15.5.1979 executed by D-1 to D-2 is invalid to the extent 1A 33.75G which was already sold to R-1 Plaintiff.
e. R-1 Plaintiff is entitled to recover possession of 1A 33.75G on southern side of western half of Survey No.331 from present Appellant D-2.
f. The def. 1 owner/vendor of suit land has admitted and supported the case of R1-Plaintiff.â€
16. While referring to the various particulars and facts of the case, it is submitted that there is no substantial questions of law involved in the present
appeal and the Second Appeal is based on the findings recorded by both the Courts below. It is also contended that in the Second Appeal under
Section 100 of the Civil Procedure Code, the finding of the facts cannot be disturbed. It is also contended that since there is no substantial questions of
law involved, the Second Appeal deserves to be dismissed. It is prayed to dismiss the Second Appeal. The learned advocate for the original plaintiff
has relied upon the following decisions in support of his submissions.
(I) Laxmidevamma & Others Vs Ranganath And Others reported in (2015) 4 SCC 264. The Apex Court has held in para 16 as under:-
“16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that plaintiffs have established their
right in 'A' schedule property. In the light of concurrent findings of fact, no substantial questions of law arose in the High Court and there was no
substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the 'A'
schedule property for road and that she could not have full fledged right and on that premise proceeded to hold that declaration to plaintiffs' right
cannot be granted. In exercise of jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot be upset by the High Court unless the
findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by
the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained.â€
(ii) Municipal Committee Hoshiarpur Vs. Punjab State Electricity Board and Others reported in (2010) 13 SCC 216. The apex Court has held in para
nos. 16, 17, 18, 19, 20, 26 & 27 as under:-
“16. Thus, it is evident from the above that the right to appeal is a creation of Statute and it cannot be created by acquiescence of the parties or by
the order of the Court. Jurisdiction cannot be conferred by mere acceptance, acquiescence, consent or by any other means as it can be conferred only
by the legislature and conferring a Court or Authority with jurisdiction, is a legislative function. Thus, being a substantive statutory right, it has to be
regulated in accordance with the law in force, ensuring full compliance of the conditions mentioned in the provision that creates it. Therefore, the
Court has no power to enlarge the scope of those grounds mentioned in the statutory provisions. A second appeal cannot be decided merely on
equitable grounds as it lies only on a substantial question of law, which is something distinct from a substantial question of fact. The Court cannot
entertain a second appeal unless a substantial question of law is involved, as the second appeal does not lie on the ground of erroneous findings of fact
based on an appreciation of the relevant evidence. The existence of a substantial question of law is a condition precedent for entertaining the second
appeal, on failure to do so, the judgment cannot be maintained. The existence of a substantial question of law is a sine-qua-non for the exercise of
jurisdiction under the provisions of Section 100 C.P.C. It is the obligation on the Court to further the clear intent of the Legislature and not to frustrate
it by ignoring the same. (Vide: Santosh Hazari v. Purshottam Tiwari (dead) by Lrs., AIR 2001 SC 965; Sarjas Rai & Ors. v. Bakshi Inderjeet Singh,
(2005) 1 SCC 598; Manicka Poosali (Deceased by L.Rs.) & Ors. v. Anjalai Ammal & Anr., AIR 2005 SC 1777; Mst. Sugani v. Rameshwar Das &
Anr., AIR 2006 SC 2172; Hero Vinoth (Minor) v. Seshammal, AIR 2006 SC 2234; P. Chandrasekharan & Ors. v. S. Kanakarajan & Ors., (2007) 5
SCC 669; Kashmir Singh v. Harnam Singh & Anr., AIR 2008 SC 1749; V. Ramaswamy v. Ramachandran & Anr., (2009) 14 SCC 216; and Bhag
Singh v. Jaskirat Singh & Ors., (2010) 2 SCC 250).
17. In Mahindra & Mahindra Ltd. v. Union of India & Anr., AIR 1979 SC 798, this Court observed:
..... It is not every question of law that could be permitted to be raised in the second appeal. The parameters within which a new legal plea could be
permitted to be raised, are specifically stated in Sub-section (5) of Section 100. Under the proviso, the Court should be `satisfied' that the case involves
a substantial question of law and not a mere question of law. The reason for permitting the substantial question of law to be raised, should be recorded
by the Court. It is implicit therefrom that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the
same. It is not any legal plea that would be alleged at a stage of second appeal. It should be a substantial question of law. The reasons for permitting
the plea to be raised should also be recorded.
18. In Madamanchi Ramappa & Anr. v. Muthaluru Bojjappa, AIR 1963 SC 1633, this Court observed:
.........Therefore, whenever this Court is satisfied that in dealing with a second appeal, the High Court has, either unwittingly and in a casual manner,
or deliberately as in this case, contravened the limits prescribed by Section 100, it becomes the duty of this Court to intervene and give effect to the
said provisions. It may be that in some cases, the High Court dealing with the second appeal is inclined to take the view that what it regards to be
justice or equity of the case has not been served by the findings of fact recorded by courts of fact; but on such occasions it is necessary to remember
that what is administered in courts is justice according to law and considerations of fair play and equity however important they may be, must yield to
clear and express provisions of the law. If in reaching its decisions in second appeals, the High Court contravenes the express provisions of Section
100, it would inevitably introduce in such decisions an element of disconcerting unpredictability which is usually associated with gambling; and that is a
reproach which judicial process must constantly and scrupulously endeavour to avoid.
19. In Jai Singh v. Shakuntala, AIR 2002 SC 1428, this Court held as under:
....it is only in very exceptional cases and on extreme perversity that the authority to examine the same in extenso stands permissible - it is a rarity
rather than a regularity and thus it can be safely concluded that while there is no prohibition as such, but the power to scrutiny can only be had in very
exceptional circumstances and upon proper circumspection.
20. While dealing with the issue, this Court in Leela Soni & Ors. v. Rajesh Goyal & Ors., (2001) 7 SCC 494, observed as under:
20. There can be no doubt that the jurisdiction of the High Court under Section 100 of the Code of Civil Procedure (CPC) is confined to the framing
of substantial questions of law involved in the second appeal and to decide the same. Section 101 CPC provides that no second appeal shall lie except
on the grounds mentioned in Section 100 CPC. Thus it is clear that no second appeal can be entertained by the High Court on questions of fact, much
less can it interfere in the findings of fact recorded by the lower appellate court. This is so, not only when it is possible for the High Court to take a
different view of the matter but also when the High Court finds that conclusions on questions of fact recorded by the first appellate court are
erroneous.
21. It will be apt to refer to Section 103 CPC which enables the High Court to determine the issues of fact:
xx xx xx
22. The section, noted above, authorises the High Court to determine any issue which is necessary for the disposal of the second appeal provided the
evidence on record is sufficient, in any of the following two situations: (1) when that issue has not been determined both by the trial court as well as
the lower appellate court or by the lower appellate court; or (2) when both the trial court as well as the appellate court or the lower appellate court
have wrongly determined any issue on a substantial question of law which can properly be the subject-matter of second appeal under Section 100
CPC.
26. Thus, it is evident that Section 103 C.P.C. is not an exception to Section 100 C.P.C. nor is it meant to supplant it, rather it is to serve the same
purpose. Even while pressing Section 103 C.P.C. in service, the High Court has to record a finding that it had to exercise such power, because it
found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in
exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.
27. There is no prohibition on entertaining a second appeal even on a question of fact provided the Court is satisfied that the findings of fact recorded
by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings
of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by
substituting its subjective satisfaction in place of that of the lower courts. (Vide: Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604; Karnataka Board
of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067; and Dinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679).
17. On perusal of pleadings of the parties and the evidence lead before the Trial Court and the judgment of both the Courts below, it transpires that
there is a concurrent findings of the facts by both the Courts below in respect of the following facts:-
(i) The defendant no.1 was the owner of the survey no.331 total admeasuring 7 acres and 15 gunthas of the land.
(ii) It also reveals that by the registered mortgage deed, defendant no.1 mortgaged the entire said land in the year 1969.
(iii) The aforesaid mortgage came to be redeemed on 20.01.1972.
(iv) On 20.01.1972, the defendant no.1 sold 3 acres and 27.5 gunthas of eastern part of the land to the plaintiff by registered sale deed for Rs.9,000/-.
(v) The plaintiff purchased a land admeasuring 1 acre 33.75 gunthas, southern part, of the remaining land admeasuring 3 acres and 15 gunthas from
defendant no.1 by a registered sale deed.
(vi) The defendant no.2 got executed a sale deed dated 15.05.1979 from defendant no.1 for the entire western side of the survey no.331 admeasuring
3 acres and 27.5 gunthas.
(vii) Both the Courts below have factually held that the plaintiff is entitled to recover possession of the land from the defendant no.2.
(viii) Both the Courts below have held the sale transaction between the defendant nos.1 and 2 as illegal. Of course the Trial Court has believed the
entire sale transaction as invalid whereas the First Appellate Court has held it partly as legal.
18. Now, the substantial questions raised by the appellant herein is relating to the facts that the defendant no.1 has mortgaged the land in question in
favour of defendant no.2 i.e. appellant herein and the said mortgage is still in existence. However, on perusal of the pleadings it appears that, no such
plea was taken before the Trial Court nor before the First= Appellate Court. It also reveals that the defendant no.2 has also raised a question of bar
under Section 48 of the Gujarat Co-operative Societies Act. The provisions contained in Section 48 of the Gujarat Co- operative Societies Act,
provides as under:-
“48. (1) Notwithstanding anything contained in any other law for the time being in fore, but subject to any prior claim of Government in respect of
land revenue or any money recoverable as land revenue and to the provisions of sections 60 and 61 of the Code of Civil procedure, 1908,â€
(a) any debts or outstanding demand, owing to a society by nay member or a person who has ceased to be a member shall be a first charge upon
â€
(i) the crops or other agricultural produce raised in whole or in part whether with or without a loan taken form the society by him,
(ii) cattle, folder for cattle, agricultural or industrial implements or machinery, or raw material for manufacture, or workshop, godown or place of
business, supplied to, or purchased by him in whole or in part, from any loan whether in money of goods made to him by the society, and
(iii) any movable property which may have been hypothecated, pledged or otherwise mortgaged by him with the society, and remaining in his custody;
(b) any outstanding demands or dues payable to a society by any member or a person who has ceased to be a member, in respect of rent, shares,
loans or purchase money or any other rights or amounts payable to such society, shall be a first charge upon his interest in the immovable property of
the society :
Provided that the prior claim of Government in respect of dues other than land revenue, shall be restricted for the purpose of this sub-section to the
assets created by a member out of the funds in respect of which the government has a claim.
(2) No property or interest in property, which is subject to a charge under sub-section (1) shall be transferred in any manner without the previous
permission of the society; and such transfer shall be subject to such conditions, if any, as the society and impose.
(3) Any transfer made in contravention of sub-section (2) shall be void,
(4) Notwithstanding anything contained in sub-sections (2) and (3), a society, which has a one of its objects the disposal of the produce of its members,
may provide in its bye-laws, or may otherwise contract with its member,â€
(a) that every such member shall dispose of his produce through the society, and
(b) that any member, who is found guilty of a breach of the byelaw or of any such contract, shall reimburse the society for any resultant loss,
determined in such manner as may be specified in the bye-laws.â€
19. Now in this regard, it is pertinent to note that so far as prior permission under the Gujarat Co-operative Societies Act is concerned, learned First
Appellate
Court has dealt with the issue in its judgment in para 10 as under:-
“10. It was argued by the learned advocate for the defendant no.2 that even if the execution of sale deed is held to be proved, the sale deed is void
and the plaintiff can not acquire any title on the basis of it. It was argued that the land sold was in charge of a Co-operative Society at the time of
execution of sale deed, and hence the sale deed will be void. The reliance was placed on the case of Special Recovery Officer V. Koli Ramshi
Bhikha, 1983 G.L.H. 146 in which it is held as under:
“Moreover under Section 48 Sub-sections
(2) of the Gujarat Co-operative Societies Act, 1961, no property or any interest therein which is subject to a charge can be transferred in any manner
without the previous permission of the society. Further, under, Section 48 Sub-sections
(3) of the said Act any transfer in contravention of Sub-sections (2) is declared to be void.â€
Now it is true that if a transfer is made without previous permission of the society, for the property which is a subject to a charge with the society, the
transfer will be void. But before declaring any transfer as void, there must be the conclusive evidence on record that the property was in charge of
society, and that no previous permission was obtained from society before taking a sale deed. Now in this case, it will be interesting to note that there
is nothing in the written statement filed by defendant No.2 attacking the validity of the sale deed by virtue of S.48 of the Gujarat Co-operative
Societies Act, 1964. If the defendant No.2 had chosen to attack the validity of sale deed on this ground and made such averment in his written
statement, then the issue could have been framed for that purpose and there would have been an opportunity for the plaintiff to lead the evidence that
even though there was a charge of Society, he had taken prior permission of the Society. In the absence of any such contention raised in the written
statement and in absence of any such issue, the plaintiff can not be taken by surprise at appellate court. The learned advocate for defendant No.2
relied on one averment made in the plaint in para 4. It is averred that the suit land was in charge of a society and the amount was to be paid by
defendant No.1, and she failed to make such payment, so mutation entry has not been made in the revenue record. Now even if we take this
averment as it is, the only admission will be that the suit land was in charge of society at the time of document. There is nothing in this averment to
prove conclusively that the plaintiff had not obtained any prior permission of the Society. So this averment in the plaint can not be helpful to the
defendant No.2 when he himself has not raised any contention in his written statement, and invited an issue on that point, giving full opportunity to lead
necessary evidence to the plaintiff…..â€
20. Further, it is pertinent to note that the defendant has raised his claim on two aspects; one is regarding mortgage of the property with him by the
defendant no.1 and the second is based on the registered sale deed of 15.05.1979 executed in his favour by the defendant no.1. It is pertinent to note
that the version of the defendant no.2 regarding mortgage is of the year 1978. Now, as per the say of the defendant no.2 on that, when the alleged
sale deed executed by the defendant no.1 in favour of the plaintiff on 08.12.1979, there was a charge of the society and therefore the transaction
would be barred by Section 48 of the Gujarat Co-operative Societies Act. Now, this very hurdle would be applicable in the case of defendant no.2 also
as he has also not produced any documentary evidence to suggest that before execution of alleged mortgage deed in his favour and sale deed in 1979,
the prior permission of the concerned authority under the provisions of Section 48 of the Gujarat Co-operative Societies Act was obtained. Now, in
view of the observations made by the First Appellate Court, which is sustainable in the eyes of law, the version put up by the defendant no.2 regarding
the bar of Section 48 of the Gujarat Co-operative Societies Act, would not be applicable in the peculiar facts of the present case. As such the
substantial question raised on point of Section 48 of the Gujarat Co-operative Societies Act would be in negative.
21. It is pertinent to note that the defendant no.2 has heavily relied upon Section 60 of the Transfer of Property Act, 1882, Section 60 of the Transfer
of the Property Act provides as under:-
 “60. Right of mortgagor to redeem.â€"At any time after the principal money has become [due], the mortgagor has a right, on payment or tender,
at a proper time and place, of the mortgagemoney, to require the mortgagee(a) to deliver [to the mortgagor the mortgage-deed and all documents
relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgagee is in possession of the mortgaged
property, to deliver possession thereof to the mortgagor, and (c)at the cost of the mortgagor either to re-transfer the mortgaged property to him or to
such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an
acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by act of the parties or by act of the parties or by [decree] of a Court.
The right conferred by this section is called a right to redeem, and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been
allowed to pass or no such time has been fixed. the mortgagee shall be entitled to reasonable notice before payment or tender of such money.
Redemption of portion of mortgaged property.â€"Nothing in this section shall entitle a person interested in a share only of the mortgaged property to
redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except [only] where a mortgagee, or, if
there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgager.
22. Under the aforesaid provisions, a right of redemption has been conferred upon the mortgagor. The right of redemption is a statutory and legal right
which cannot be extinguished by any agreement made at the time of mortgage. A suit for redemption may be brought without tendering the mortgage
money to the mortgagee. It is well settled that inspite of the mortgage, the mortgagor remains the owner of the property, the mortgagee what ever
may be the nature of the mortgage being only the transferee of an interest in such property. Thus, merely because there was a mortgage, it does not
extinguish the ownership and title of the original owner. Therefore, merely because the property was mortgaged with defendant no.2 by the defendant
no.1 does not extinguish the right of the original owner i.e. defendant no.1 to sell out the property to any other person. Now, on perusal of the material
placed on record, it clearly transpires that the defendant no.2 is claiming the entire property as he became the owner of the property on the basis of
the alleged sale deed of 15.05.1979. Thus, if the defendant no.2 is claiming the ownership of the suit property on the basis of the registered sale deed,
then it will be instance of conversion of a mortgage in a regular sale. Therefore, what ever point raised by the defendant no.2 in respect of principles
that once mortgage always a mortgage is not applicable in the facts of the case as the defendant no.2 has based this claim over the suit land on the
basis of registered sale deed dated 15.05.1979.
23. In the peculiar facts and circumstances of this case, therefore the observations of the First Appellate Court in not holding in favour of defendant in
respect of mortgage cannot be termed as an error of law.
24. Now, so far as the question regarding the applicability of provisions of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act
is concerned, it is pertinent to note that neither of the parties insisted upon the findings of the facts in that regard before both the Courts below.
However, it appears that as per the evidence on record, the defendant no.1 has already sold half portion of the land to the plaintiff by a registered sale
deed dated 20.01.1972 and the second portion i.e. of the southern part of land came to be sold to the plaintiff. Therefore, the small portion is of the
same land. As such, there would be no question of any breach of provisions of Gujarat Prevention of Fragmentation and Consolidation of Holdings
Act. The provision thereof may be summarized as under:-
“7. Transfer; and lease of fragments. - [(1) Any fragment in respect of which a notice has been given under sub-section (2) of section 6 may be
transferred to any agriculturalist as defined in relevant tenancy law:
Provided that if such fragment is transferred to the owner of a contiguous survey number or recognised sub-division of a survey number, then such
fragment shall be consolidated:]
[[Provided further], the holder of such fragment may mortgage or transfer it to the State Government or a land mortgage bank or any other co-
operative society as security for any loan advanced to him by the State Government or such bank or society as the case may be.]
(2) Notwithstanding anything contained in [any law for the time being in force or in any instrument or agreement], no such fragment shall be leased to
any person other than a person cultivating any land which is contiguous to the fragment.
8. Fragmentation prohibited. - No land in any local area shall be transferred or partitioned so to create a fragment.
8AA. Restriction on partition of land. -
(1) Where, by transfer, decree, succession or otherwise, two or more persons are entitled to shares in an undivided agricultural land in any local area
for which standard areas have been fixed, and the land has to be partitioned among them, such partition shall be effected so as not to create a
fragment.
(2) Where such partition is made by the Court or the Collector, the following procedure shall be adopted-
(a) If, in effecting a partition among several co-sharers, it is found that a co-shearer is entitled to a specific share in the land and cannot be given that
share without creating a fragment, he shall be compensated in money for that share. The amount of compensation shall be determined so far as
practicable in accordance with the provisions of Section 23 of the Land Acquisition Act, 1894 (I of 1894) [or, as the case may be, of that section] in its
application to the Saurashtra Area of the State of Bombay under the Land Acquisition Act, 1894 (Adaptation and Application) Ordinance, 1948 (Sau.
Act XXI of 1948). [***]
(b) If, in effecting a partition, it is found that there is not enough land to provide for the shares of all the co-sharers in accordance with the provisions
of sub-section (1), the co-sharers may agree among themselves as to the particular co-sharer or co-sharers who should get the share of land and
which of them should be compensated in money. In the absence of any such agreement, the co-sharers to whom a share of land can be provided and
those to whom money compensation should be given shall be chosen by lot in the manner prescribed.
(c) The compensation shall be payable by each co-sharer in proportion to the excess value of land he gets over the share of land legally due to him,
and such co-sharer shall deposit the proportionate amount of compensation in the manner prescribed before taking possession of the share allotted to
him. On his failure to do so, his share shall be allotted to any other co-sharer to whom land has not been previously allotted and who is chosen in the
manner provided in Clause (b) subject to the payment of similar compensation to the co-sharers not getting shares of land.
(d) If none of the co-sharers to whom land has been allotted under Clause (c) pays the compensation and takes the share, the share shall be sold in
auction to the highest bidder, and the purchase money shall be paid to the co-sharers not getting land in proportion to their respective shares.
(e) Where the parties agree upon any other method of partition which will not result in the creation of a fragment, that method shall be followed in
effecting partition.
(3) Where a partition is effected in execution of a decree, all questions relating to the partition of the land and apportionment of compensation shall be
decided by the Court executing the decree or by the Collector effecting the partition, as the case may be, in accordance with the provisions of sub-
section (2).]
[8A. Sections 7 and 8 not to apply to transfer for public places. - Nothing in Sections 7, [8 and 8AA] shall apply to a transfer of any land for such
public purpose as may be specified in this behalf by the State Government by notification in the Official Gazette].
9. Penalty for transfer or partition contrary to Provisions of the Act. - (1) The transfer or partition of any land contrary to the provisions of this Act
shall be void.
[(2) The owner of any land so transferred or partitioned shall be liable to pay the fine of rupees five thousand or ten per cent. of the market value of
the land, whichever is more, for the urban area as the Collector may direct; and rupees two thousand or ten per cent. of the market value of the land,
whichever is more, for the remaining area. Such fine shall be recoverable as an arrears of land revenue.]
[(3) Any person unauthorised occupying or wrongfully in possession of, any land, the transfer or partition of which, either by the act of parties or by
the operation of law, is void under the provisions of this Act, may be summarily evicted by the Collector].â€
24.1. Now, admittedly there is no evidence produced on record by the defendant no.2 to suggest that there was really fragmentation of the estate. No
notification has been produced in this respect. Therefore, in absence of the evidence, it cannot be presumed that there was a breach of the provisions
of the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act. It also reveals that no action by the revenue authority has been initiated
against the plaintiff or defendant no.1 for breach of provisions of the aforesaid Act. Had there been such action taken by the revenue authority, there
might have been some documentary evidence which can be lead by the defendant no.2 and produce in the matter. Now, in absence of any such
evidence, bare words are not sufficient to substantiate the stand of the defendant no.2 regarding the breach of the provisions of the Gujarat Prevention
of Fragmentation and Consolidation of Holdings Act. It clearly transpires that the point raised by the defendant no.2 in respect of the applicability of
the provisions of the aforesaid Act is not tenable.
25. It transpires from the reasonings and the decisions of the First Appellate Court that the First Appellate Court has properly appreciated the factual
as well as legal aspect and has not committed any error of law in passing the impugned judgment and decree whereby it has partly allowed the appeal
of the defendant no.2 and has set aside the portion of the decree as passed by the learned Trial Court.
26. In view of the aforesaid discussions, the substantial questions raised in this appeal are answered in negative accordingly.
27. In view of the aforesaid discussions, the present Second Appeal is liable to be dismissed. Therefore, for the reasons given above, I pass the
following final order in the interest of justice.
ORDER
The present Second Appeal is hereby dismissed.
Considering the facts and circumstances of the case, the parties are directed to bear their respective cost of the appeal.
Decree to be drawn accordingly in the present Second Appeal.
Along with the copy of this judgment and decree, Records & Proceedings of the original suit be sent back to the Trial Court.
