1. The petitioner/plaintiff/appellants in R.S.A. No. 849 of 1979 are the petitioner in the above civil petition. The second appeal whose judgment is sought to be reviewed arose out of a suit for redemption which was dismissed by the Trial Court and which dismissal was confirmed by the First Appellate Court and this Court in the second appeal.
2. The reason for dismissal by the Courts below is that there is no identity of the mortgaged property. This Court observed as follows:--
"The materials placed on record not being satisfactory to establish the identity of the mortgaged property, this Court regrets its inability to give effective relief to the appellant. It is to be noted that the suit for redemption was filed in the year 1968 and has been pending in one Court or the other during the last twenty-five years and during this period it was remanded on two occasions by this Court to enable the appellant to place additional evidence on record as requested by him. Even after 25 years, this Court finds that there is not enough material to enable this Court to identify the mortgaged property with the property claimed by the appellant. Therefore, this Court expresses its helplessness to give effective relief to the appellant".
3. Now this part of the judgment is sought to be reviewed by the appellants on the grounds that the Supreme Court has held in
"Significant facts which emerge herein are that the mortgagees were initially the purchasers of the land in dispute. The purchase in their favour was successfully pre-empted by the present appellant, Somehow in the revenue papers the decree of pre-emption did not find way of substituting the pre-emptor as owner and consolidation operations took place in the meantime. The owners of the land as recorded got the post-consolidation holding intermingled with the pre-empted land, which land was in the meantime mortgaged in their favour. The land involved in the instant litigation had to be extricated from that conglomerated holding. The lower Appellate Court was wrongly of the view that it could not be carved out in the instant suits. It could at best have left it to the Executing Court but not deny the relief of actual possession. In this view of the matter, we allow the appeal and order the delivery of the actual possession to the appellant by setting aside the judgment and decree of the first Appellate Court as confirmed by the High Court while restoring that of the Trial Court".
The Supreme Court has held that identification of the mortgaged property, in case of doubt can be relegated to the Execution Court. Following the above dictum, I am inclined to review the judgment.
4. After hearing the Counsel for appellant and the Counsel appearing for some of the respondents and other respondents having been served and remain unrepresented, I am convinced that the dictum of the Supreme Court mentioned above is directly applicable to the facts of this case.
5. That the property mortgaged is not in dispute. It is not open to the parties to contend that either the mortgagor or the mortgagee is not aware of the property mortgaged. It is too big a pill to swallow and the rights of the persons in respect of property can never be denied for want of identity. It is not as if the parties are not aware of the properties over which one man spent money and lay claim for return of property and the other denied such claims. Therefore, whenever a question of identity is introduced, it must be construed as an evasive attitude adopted by the persons to avoid and escape from the consequential liability under a decree which has to be put in execution. Identity can never stand in the way of denial of title or deprivation of possession.
6. The best way is to appoint a Commissioner or concerned Revenue Authority from the Government to locate and identify the property. An immovable property cannot vanish in thin air. It must be available though there may be addition over it by construction or divisions. Land always remain and will remain in the place where it was at the time of the beginning of the litigation. Only act of God or State or erosion by sea can take away any land. So long as such contingencies do not arise or found in record, no person can be deprived of his property on the ground of want of identity.
In this view, following the dictum of Supreme Court as well as on the facts, I allow the Civil Petition and in the result the earlier order is set aside and the second appeal is allowed. A decree for redemption has to follow in favour of the plaintiff. No costs.
