# Bhawani Prasad v. Sheo Kumar & Ors

- **Citation:** (2023) 12 ILRA 779
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-16
- **Case number:** Second Appeal No. 132 of 1988
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bhawani-prasad-v-sheo-kumar-ors-49530
- **Pages:** 10

## Headnote

780 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law - Limitation Act, 1963 - Sections
18, 27, 30, 31, Article 61(a) - Evidence
Act, 1872 - Sections 91, 92 - Transfer of
Property Act, 1882 - Mortgage Redemption -
Limitation Period - Acknowledgment in Writing -
Oral Agreement - Extinguishment of Rights

The appellant, Bhawani Prasad, challenged the
judgment and decree dated 02.02.1988 by the
Civil Judge, Faizabad, affirming the trial court's
decree dated 18.07.1984 in Regular Suit No.
355/1981,
which
allowed
the
plaintiffrespondent Shiv
Kumar Mishra's suit for
redemption
of
a
mortgage
executed
on
24.03.1931 by Ayodhya Prasad Singh in favor of
Salik Ram Sahu for Rs.400, with a repayment
period of seven and a half years. The plaintiff
claimed rights through an agreement to sell
dated 23.06.1975 and a sale deed dated
20.08.1981, alleging an oral arrangement in
1967 and June 1975 with the defendants'
consent to sell part of the property. The
appellant contended the suit, filed in 1981, was
time-barred under the Limitation Act, 1963, and
the alleged oral arrangement was inadmissible
under Sections 91 and 92 of the Evidence Act.
Held: (1) The second appeal was allowed, and
the judgments of both courts were set aside. (2)
The suit was barred by limitation under Article
61(a) of the Limitation Act, 1963, as the 30-year
period for redemption from 1939 (when the
repayment period ended) expired in 1969, and
under Section 30, the extended period of seven
years from 1963 (when the 1963 Act came
into force) expired in 1970. (3) By 1975,
when the agreement to sell was executed,
Ayodhya
Prasad
Singh's
rights
were
extinguished under Section 27, rendering the
agreement and sale deed invalid. (4) The
alleged oral arrangement of 1967 and June
1975, testified by PW-4 Narsingh Pandey, was
inadmissible under Sections 91 and 92 of the
Evidence Act, as it sought to modify the
registered mortgage deed without written
acknowledgment, and no such arrangement
was incorporated in the 1975 agreement to
sell. (5) The plaintiff could not acquire better
rights than Ayodhya Prasad Singh, whose
rights were extinguished. (6) The courts below
erred in ignoring the Limitation Act provisions
and relying on inadmissible oral evidence,
rendering their findings legally flawed.

Case Law cited:

Prem Singh & ors. Vs Birbal & ors., (2006) 5
SCC 353

## Text

12 All. Bhawani Prasad Vs. Sheo Kumar & Ors.
779

35. The interim bail was granted to
the applicant by this Court on 01.03.2023.

36. The following arguments made by
Shri Kumar Parikshit, learned counsel
assisted by Shri Ajay Kumar, learned
counsel on behalf of the applicant, which
could not be satisfactorily refuted by Shri
Paritosh Kumar Malviya, learned A.G.A.-I
for the State from the record, entitle the
applicant for grant of bail:

(i). The applicant is in jail since
23.12.2017. The applicant is a law abiding
citizen who cooperated in the investigations
and has joined the trial proceedings.

(ii). The trial court in its report
records that the prosecution proposes to
examine seven witnesses. However, not a
single witness has been examined till date.

(iii). The P.W. 1 has not appeared
before the learned trial on various previous
dates including 08.12.2022, 21.12.2022,
10.01.2023, 24.01.2023 and 06.02.2023.

(iv). The warrants have been
issued against the prosecution witnesses to
ensure his presence before the learned trial
court.

(v). The trial is moving at a
snail's pace and shows no signs of an early
conclusion.

(vi). Inordinate delay in the trial
will lead to indefinite imprisonment of the
applicant.

(vii).
The
applicant
is
not
responsible for the delay in the trial.

(viii). Right of the applicant to a
speedy trial has been violated.

(ix). The applicant does not have
any criminal history apart from the instant
case.

(x). The applicant is not a flight
risk. The applicant being a law abiding
citizen has always cooperated with the
investigation and undertakes to cooperate
with the court proceedings. There is no
possibility of his influencing witnesses,
tampering
with
the
evidence
or
reoffending.

37. In the light of the preceding
discussion
and
without
making
any
observations on the merits of the case, the
bail is allowed.

38. Let the applicant-Noor Alam be
released on bail in the aforesaid case crime
number, on furnishing a personal bond and
two sureties each in the like amount to the
satisfaction of the court below. The
following conditions be imposed in the
interest of justice:-

(i) The applicant will not tamper
with the evidence or influence any witness
during the trial.

(ii) The applicant will appear
before the trial court on the date fixed,
unless personal presence is exempted.
----------
(2023) 12 ILRA 779
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.12.2023

BEFORE

THE HON'BLE JASPREET SINGH, J.

Second Appeal No. 132 of 1988

Bhawani Prasad ...Appellant
Versus
Sheo Kumar & Ors. ...Respondents

Counsel for the Appellant:
H.S. Sahai, A.S. Chaudhary, P.V. Chaudhary, U.S.
Sahai

Counsel for the Respondents:
S.K. Mehrotra, Arun Prakash Shukla, Ishwar Dutt
Shukla, Vijai Bahadur Verma
780 INDIAN LAW REPORTS ALLAHABAD SERIES
Civil Law - Limitation Act, 1963 - Sections
18, 27, 30, 31, Article 61(a) - Evidence
Act, 1872 - Sections 91, 92 - Transfer of
Property Act, 1882 - Mortgage Redemption -
Limitation Period - Acknowledgment in Writing -
Oral Agreement - Extinguishment of Rights

The appellant, Bhawani Prasad, challenged the
judgment and decree dated 02.02.1988 by the
Civil Judge, Faizabad, affirming the trial court's
decree dated 18.07.1984 in Regular Suit No.
355/1981,
which
allowed
the
plaintiffrespondent Shiv
Kumar Mishra's suit for
redemption
of
a
mortgage
executed
on
24.03.1931 by Ayodhya Prasad Singh in favor of
Salik Ram Sahu for Rs.400, with a repayment
period of seven and a half years. The plaintiff
claimed rights through an agreement to sell
dated 23.06.1975 and a sale deed dated
20.08.1981, alleging an oral arrangement in
1967 and June 1975 with the defendants'
consent to sell part of the property. The
appellant contended the suit, filed in 1981, was
time-barred under the Limitation Act, 1963, and
the alleged oral arrangement was inadmissible
under Sections 91 and 92 of the Evidence Act.
Held: (1) The second appeal was allowed, and
the judgments of both courts were set aside. (2)
The suit was barred by limitation under Article
61(a) of the Limitation Act, 1963, as the 30-year
period for redemption from 1939 (when the
repayment period ended) expired in 1969, and
under Section 30, the extended period of seven
years from 1963 (when the 1963 Act came
into force) expired in 1970. (3) By 1975,
when the agreement to sell was executed,
Ayodhya
Prasad
Singh's
rights
were
extinguished under Section 27, rendering the
agreement and sale deed invalid. (4) The
alleged oral arrangement of 1967 and June
1975, testified by PW-4 Narsingh Pandey, was
inadmissible under Sections 91 and 92 of the
Evidence Act, as it sought to modify the
registered mortgage deed without written
acknowledgment, and no such arrangement
was incorporated in the 1975 agreement to
sell. (5) The plaintiff could not acquire better
rights than Ayodhya Prasad Singh, whose
rights were extinguished. (6) The courts below
erred in ignoring the Limitation Act provisions
and relying on inadmissible oral evidence,
rendering their findings legally flawed.

Case Law cited:

Prem Singh & ors. Vs Birbal & ors., (2006) 5
SCC 353

(Delivered by Hon'ble Jaspreet Singh, J.)

1. This is the defendant's second
appeal challenging the judgment and decree
dated 02.02.1988 passed by Civil Judge,
Faizabad in Civil Appeal No.233/1984
arising
out
of
the
Regular
Suit
No.355/1981, decided by the 7th Additional
Munsif, Faizabad by means of the its
judgment and decree dated 18.07.1984, as a
result, the suit filed by the plaintiffrespondents for redemption of mortgage
was decreed by the trial Court and the same
has also been affirmed by the lower
Appellate Court.

2. The instant second appeal was
admitted by this Court on 15.02.1988,
however,
at
the
relevant
time,
the
substantial question of law was not
formulated.
Later,
this
Court
on
20.03.2023, after hearing the parties,
formulated three substantial questions of
law involved in the instant second appeal,
which read as under:-

"(A) Whether the two courts have
committed an error in decreeing the suit
which was partially modified by the Lower
Appellate Court while affirming the decree
of the Trial Court ignoring the issue of
limitation, inasmuch as, a specific defence
was raised by the defendants that the suit
for redemption of mortgage would not be
maintainable in light of the Sections 18, 22
and 27 of the Limitation Act?

(B) Whether the two courts have
committed an error in treating an oral
contract to have an overriding effect on the
12 All. Bhawani Prasad Vs. Sheo Kumar & Ors.
781
mortgage deed and its terms in light of
Sections 91 and 92 of the Evidence Act?

(C) Whether in absence of any
pleadings or evidence, the findings returned
by the two courts regarding the conduct of
the defendant and taking it to be against the
defendant was justified?"

3. The issue involved in the instant
second appeal is regarding the inter-play
and applicability of the Limitation Act as
well as the Evidence Act as applicable to a
suit for redemption of mortgage.

4. Insofar as the facts are concerned,
there is not much dispute between the
parties. However, to better appreciate the
contentions as well as for answering the
questions of law, the facts giving rise to the
instant appeal are being noticed hereinafter.

5. The original plaintiff namely Shiv
Kumar Mishra filed a suit in the Court of
Munsif, Faizabad against Bhawani Prasad,
Smt. Yashoda Devi, Ram Shankar, Smt.
Ramrati, Devi Prasad, Jagdamba Prasad,
Mata Prasad, Anil Kumar, Gayatri Devi,
Smt. Devki, Smt. Pushpa and Smt. Sushila
Devi seeking a decree of redemption of
mortgage. It was pleaded that the property
in question comprising of a house and ahata
initially belonged to Ayodhya Prasad Singh
and he had agreed to sell the said house and
ahata in favour of the plaintiff Shiv Kumar
Mishra by executing a registered agreement
to sell dated 23.06.1975. However, before
executing the sale-deed, Ayodhya Prasad
Singh expired and thereafter it took time
for obtaining the permission from the
District Magistrate and also to persuade the
legal heirs of Ayodhya Prasad Singh and it
is then the sale-deed was executed in
favour of the plaintiff on 20.08.1981,
therefore, the plaintiff filed a suit seeking to
redeem the mortgage.

6. The plaintiff also indicated a
pedigree in Paragraph-3 of the plaint
indicating that Salik Ram Sahu the
common ancestors and he was survived by
his three sons Baijnath, Bhawani Prasad
and Shriram. From the branch of Baijnath,
his widow Smt. Yoshoda Devi was
impleaded as defendant No.2; Bhawani
Prasad was impleaded as defendant No.1
and the defendants No.3 and 4 were the
sons of the third son namely Shriram and
the defendants No.5, 6, 7, 8, 9 and 10 were
also the children of Shriram from his
branch.

7. It was further pleaded that on
24.03.1931, a registered mortgaged-deed
was executed by Ayodhya Prasad Singh in
favour of Salik Ram Sahu, the predecessorin-interest of Defendants No.1, 2, 5 and 15
for a sum of Rs.400/-. It was further
pleaded that the mortgage money was
Rs.400/- which was to be repaid with
interest @ 1.5 per month. The time
prescribed for repayment of the mortgaged
money was seven years and since the same
was
not
repaid,
consequently,
the
defendants were claiming rights over the
mortgaged property.

8. It is in the aforesaid backdrop that
the plaintiff had filed a suit seeking
redemption after having obtained an
agreement to sell dated 23.06.1975 from
Ayodhya Prasad Singh and, therefore, the
sale-deed was executed only in the year
1981, hence, the suit was filed on
19.05.1981.

9. The suit was primarily contested by
Bhawani Prasad and while raising different
pleas it was specifically pleaded that the
suit
for
redemption
was
barred
by
limitation as all rights of Ayodhya Prasad
Singh had already been extinguished and
782 INDIAN LAW REPORTS ALLAHABAD SERIES
on the date of execution of the registered
agreement to sell by Ayodhya Prasad Singh
or at the time of execution of the sale-deed
in the year 1981, nothing remained with
either Ayodhya Prasad Singh or his legal
heirs and as such the alleged sale-deed
upon which the plaintiff is claiming rights
to seek redemption of the mortgaged was
bad and no rights were conferred on the
plaintiff, hence, the suit was liable to be
dismissed.

10. Later, the plaintiff amended the
plaint and also took a plea that since
Ayodhya Prasad Singh had agreed to sell
the property and this fact was also known
to the defendants who consented that the
property may be sold only in respect of
some part and it is in lieu thereof that the
plaintiff had got the agreement to sell
executed and later got the sale-deed
executed. It was also pleaded that this
understanding between the parties was first
arrived at in the year 1967 which was
further reiterated in the second week of
June, 1975 and in furtherance of the said
understanding, the plaintiff had left the
western portion and only got the agreement
to see and then sale-deed of the eastern
portion of the property.

11. Upon exchange of the pleadings,
the trial Court framed six issues, however,
the relevant issues upon which the suit was
contested was (i) whether the plaintiff is the
owner of the property, (ii) whether the
plaintiff has a right to get the mortgaged
redeemed, (iii) whether the rate of interest
in the mortgaged deed was usurious, if so,
its effect and (iv) whether the suit was time
barred.

12. The parties led evidence and
thereafter the trial Court while dealing with
the issue No.5 relating to limitation held
that since there was an understanding
between the parties in terms whereof the
contesting defendants agreed that they were
ready for allowing the eastern portion to be
sold by Ayodhya Prasad Singh and after
having got the sale-deed executed in their
favour, the plaintiff filed the suit in the year
1981, hence, it was within the limitation.
The trial Court also recorded a finding that
the plaintiff was the owner of the property
in dispute and by means of its judgment
and decree dated 18.07.1984, the 7th
Additional Munsif, Faizabad decreed the
suit.

13. The defendant Bhawani Prasad
alone filed a regular civil appeal under
Section 96 CPC which also came to be
dismissed by means of the judgment and
decree dated 02.02.1988 by Civil Judge,
Faizabad and in the aforesaid backdrop
Bhawani Prasad took the matter forward by
filing the second appeal.

14. Shri P.V. Chaudhary, learned
counsel for the appellant has primarily
urged that insofar as the execution of the
registered
mortgaged-deed
dated
24.03.1931 is concerned, the same is
admitted to the parties. It is further
submitted that time for repayment of the
mortgaged amount was seven and a half
years as indicated in the mortgaged-deed
itself. It is also urged that seven and a half
years time for repayment from the date of
mortgage would expire sometime in the
year 1939. The limitation for seeking a
redemption as per the Limitation Act, 1963
was 30 years which also came to an end in
the year 1969. The suit came to be filed in
the year 1981 and admittedly the agreement
to sell as claimed by the plaintiffrespondents Shiv Kumar Mishra was dated
23.06.1975, which was way beyond the
period of limitation, hence, in light of the
12 All. Bhawani Prasad Vs. Sheo Kumar & Ors.
783
provisions contained under Section 27 of
the Limitation Act, 1963, the rights of
Ayodhya Prasad Singh already stood
extinguished and he had no right for which
he could have executed the agreement to
sell on 23.06.1975 and moreover upon his
death, no rights in the property in dispute
would devolve on the legal heirs of
Ayodhya Prasad Singh which could be
transferred to the plaintiff by means of the
alleged sale-deed dated 20.08.1981 and
thus, it would be seen that the institution of
the suit in the year 1981 was per-se time
barred.

15. Shri Chaudhary has further urged
that even otherwise there is nothing on
record to indicate that there was any
understanding in terms whereof Bhawani
Prasad had agreed to the arrangement
permitting Ayodhya Prasad Singh to sell
part of the property to Shiv Kumar Mishra.
Since, this is merely an oral statement and
nothing is in writing, consequently, the
same would be hit by Sections 91 and 92 of
the Evidence Act. Apart from the fact that
as
per
the
Limitation
Act
such
acknowledgment must be in writing and in
absence thereof the plaintiff could not have
taken the plea nor it was permissible for the
Courts to have granted the benefit of
limitation ignoring the statutory provisions,
hence, the judgment and decree passed by
the two Courts are bad in law and as such
deserves to be set aside after allowing the
appeal and the suit be dismissed.

16. Shri Vijai Bahadur Verma, learned
counsel for the plaintiff-respondents has
submitted that original defendant No.1
Bhawani Prasad alone did not have a right
to file an appeal. It is submitted by him that
the mortgaged-deed was in favour of Salik
Ram Sahu, who had three sons namely
Baijnath, Bhawani Prasad and Shriram. It is
further submitted that it is only Bhawani
Prasad who contested the suit whereas the
defendants from the branch of Baijnath and
Shriram did not contest the suit which in
itself is indicative of the fact that the plea
taken by the plaintiff that there was an
arrangement between Salik Ram Sahu and
the plaintiff and Ayodhya Prasad Singh,
which was first arrived at in the year 1967
and also later in 1975 June and it is for the
aforesaid reason that they did not contest
nor after the decree was passed by the trial
Court, they filed or joined Bhawani Prasad
in filing the first appeal. Once the parties
by their own conduct arrived at an
arrangement in pursuance whereof the
plaintiff
was
persuaded
to
get
the
agreement to sell executed and later the
sale-deed and that too only of part of the
property lying on the eastern side and for
the said reason the plaintiff after getting the
sale-deed, the plaintiff filed the instant suit
seeking redemption and this aspect has
been
considered
by
the
two
Court
concurrently and are pure findings of fact
have been recorded, which does not require
any interference by this Court.

17. Shri Verma while taking his
submission
forward
has
also
drawn
attention of the Court to the fact that
Narsingh Pandey, who was examined as
PW-4 clearly deposed that the arrangement
which was arrived at between the parties
was in his presence in the year 1975. He
had stated that the said talks were held
between Ayodhya Prasad Singh, Shiv
Kumar Mishra, Bhawani Prasad, Shriram,
Smt. Yashoda Devi. His statement also
corroborated the fact that the sale-deed of
1981 was executed in his presence and his
statement remained intact and nothing
adverse could be elicited from his crossexamination which clearly fortified the
contention of the plaintiff, hence, in light
784 INDIAN LAW REPORTS ALLAHABAD SERIES
thereof, the findings returned by the trial
Court and affirmed by the first appellate
Court requires no interference and the
appeal deserves to be dismissed.

18. The Court has heard learned
counsel for the parties and also perused the
material on record.

19. At the outset, it first needs to be
adjudicated as to whether the suit of the
plaintiff seeking redemption of mortgage
was within the prescribed period of
limitation. In this context, it will be
relevant to refer to Schedule annexed with
the Limitation Act, 1963, Part-V which
deals with suit relating to an immovable
property. Articles 61 to 63 are relevant for
the present controversy and are being
reproduced hereinafter for ready reference:-

61.
By a mortgagor -
(a) to redeem or recover
possession of immovable
property mortgaged;
Thirty
years
When
the
right
to
redeem or to
recover
possession
accrues.
(b) to recover possession
of immovable property
mortgaged
and
afterwards transferred by
the mortgagee for a
valuable consideration;
Twelve
years
When
the
transfer
becomes
known to the
plaintiff.
(c) to recover surplus
collections received by
the mortgagee after the
mortgage
has
been
satisfied.
Three
years
When
the
mortgagor
re-enters on
the
mortgaged
property.
62.
To enforce payment of
money secured by a
mortgage or otherwise
charged
upon
immovable property;
Twelve
years
When
the
money sued
for becomes
due.
63.
By a mortgagee -
(a) for foreclosure;
Thirty
years
When
the
money
secured
by
the mortgage
becomes due.
(b) for possession of
immovable
property
mortgaged.
Twelve
years
When
the
mortgagee
becomes
entitled
to
possession.

20. From the perusal of the aforesaid
provisions, it would be seen that a mortgagor
can file a suit seeking redemption or to recover
the
possession
of
immovable
property
mortgaged within 30 years from the date the
right to redeem or to recover possession
accrues. In Clause (b) of Article 61, a 12 years
period of limitation is provided in case where
the possession is sought to be recovered of the
property mortgaged which afterwards has been
transferred by the mortgagee for a valuable
consideration and this period of 12 years is
reckoned from the date when the transfer
becomes known to the plaintiff. Clause (c)
provides for a period of 3 years limitation to
recover the surplus collection received by the
mortgagee after the mortgaged has been
satisfied.

21. Apparently in the instant case, it is
Clause (a) of Article 61 which is applicable. So
far as the rights of a mortgagee is concerned, he
too has 30 years to foreclose the mortgage from
the date when the money secured by the
mortgage becomes due and in a case for
recovery of possession of immovable property
which is mortgaged then a mortgagee has 12
years from the date of the mortgagee becomes
entitled to possession.

22. In the instant case, the plaintiff
Shiv Kumar Mishra was claiming through
Ayodhya Prasad Singh, who was the
original mortgagor seeking to redeem the
mortgaged property and it would be
covered squarely by Article 61(a) and the
period of limitation would be 30 years
when the right to redeem or to recover
possession accrues.
12 All. Bhawani Prasad Vs. Sheo Kumar & Ors.
785

23. Apparently in the instant case, the
mortgaged was of the year 1931 and the
period to repay the mortgaged amount was
seven and a half years. Thus, from 1931,
the time of seven and a half years would
expire in the year 1939 and the mortgagor
had 30 years thereafter to get the property
redeemed which would end in the year
1969.

24. At this juncture, it will also be
relevant to notice that at the time when the
mortgaged-deed was executed in the year
1931, at the relevant time the Indian
Limitation Act, 1908 was in prevalence and
in the appendix to Part-X, a period of 60
years was provided as limitation which was
to be reckoned, from the time money
secured by the mortgage become due and in
a suit for redemption of mortgage again the
period of 60 years was provided when the
right to redeem accrued.

25. It has also to be seen that no
proceedings were initiated at the time and
when Ayodhya Prasad Singh executed the
agreement to sell in favour of the plaintiff
Shiv Kumar Mishra in the year 1975 at that
point of time the Limitation Act, 1908 had
been repealed and the Limitation Act, 1963
had been enacted. Thus, all the rights of the
parties
would
be
governed
by
the
Limitation Act, 1963 and not by the
Limitation Act, 1908.

26. Section 31 of the Limitation
Act, 1963 says only such proceedings
which were either pending as a suit or
appeal or an application and further the
said Section did not enable any suit or
appeal or application to be instituted for
which the period of limitation prescribed
by the Indian Limitation Act, 1908 had
expired before the commencement of
this Act.

27. At this juncture, it will be relevant
to note Section 30 of the Limitation Act,
1963 which reads as under:-

"30. Provision for suits, etc., for
which the prescribed period is shorter
than the period prescribed by the Indian
Limitation Act, 1908.-Notwithstanding
anything contained in this Act,-

(a) any suit for which the period of
limitation is shorter than the period of
limitation
prescribed
by
the
Indian
Limitation Act, 1908, may be instituted
within a period of [seven years] next after
the commencement of this Act or within the
period prescribed for such suit by the
Indian Limitation Act, 1908, whichever
period expires earlier:

[Provided that if in respect of any such
suit, the said period of seven years expires
earlier than the period of limitation
prescribed
therefor
under
the
Indian
Limitation Act, 1908 and the said period of
seven years together with so much of the
period of limitation in respect of such suit
under the Indian Limitation Act, 1908, as
has
already
expired
before
the
commencement of this Act is shorter than
the period prescribed for such suit under
this Act, then, the suit may be instituted
within the period of limitation prescribed
therefor under this Act.]

(b) any appeal or application for which
the period of limitation is shorter than the
period of limitation prescribed by the
Indian Limitation Act, 1908, may be
preferred or made within a period of ninety
days next after the commencement of this
Act or within the period prescribed for such
appeal or application by the Indian
Limitation Act, 1908, whichever period
expires earlier."

28. Even assuming that the Limitation
Act, 1908 was applicable since the
786 INDIAN LAW REPORTS ALLAHABAD SERIES
mortgaged was of the year 1931 and seven
and a half years was provided for
repayment and the limitation as prescribed
under the Limitation Act, 1908 i.e. of 60
years if taken would lead to a situation
where the limitation would be until 1999.
However, what is more important is to be
see that once there was a mortgage and the
mortgagor i.e. Ayodhya Prasad Singh or his
legal heirs did not get the property
mortgaged redeemed then merely by
executing an agreement to sell would not
confer any rights of Shiv Kumar Mishra.
The mortgage is treated to be the transfer as
per the Transfer of Property Act and unless
and until the rights could be redeemed, the
mortgagor may not have a enforceable right
to execute an agreement to sell. Moreover,
heirs of Ayodhya Prasad Singh also could
not have executed a sale-deed without first
getting the property redeemed.

29. Another way of looking at the
entire controversy is in light of the
provisions contained in Section 18 and 27
of the Limitation Act, 1963. Section 18 of
the Limitation Act speaks of effect of
acknowledgment in writing. This can only
be seen if some acknowledgment regarding
the
dues
and
its
payment
was
acknowledged in writing which could
extend the period of limitation.

30. In the instant case, though it is
stated that in presence of Narsingh Pandey,
the
parties
arrived
at
an
agreement/arrangement
that
Ayodhya
Prasad Singh may transfer his rights in
respect of part of the property by way of an
agreement to sell and later in the year 1981,
the heirs of Ayodhya Prasad Singh had
executed the sale-deed. It is merely an oral
statement of Narsingh Pandey, who was
examined on behalf of the plaintiff as a
witness but admittedly there was no such
acknowledgment or arrangement arrived at
between in writing.

31. At this juncture, it will also be
relevant to notice that Sections 91 and 92
of the Evidence Act which excludes the
oral evidence in respect of terms of a
contract which may be reduced in writing
in form and document. Thus, once there
was a registered mortgage-deed which
clearly provided for a period of seven and a
half years for repayment and in light of the
testimony which have been given by a
witness and by his oral testimony, he
admits to modify the term of a written
contract, such testimony cannot be relied
upon nor be taken as admissible evidence.
Subject only to the proviso and the
exceptions which are mentioned in Sections
91 and 92 of the Indian Evidence Act and
needless to say that such exceptions and the
proviso are not made out. Accordingly, the
testimony of Narsingh Pandey on this point
is to be excluded.

32. It will also worthwhile to take
note of the fact that if at all any such
arrangement had been arrived at between
the parties as stated by Shiv Kumar Mishra
and his witness Narsingh Pandey in the
year 1967 and then later in the second week
of June, 1975, but the fact remained that
the alleged agreement to sell was executed
on 23.06.1975 and there is no mention of
such arrangement in the said agreement to
sell. It was open for the parties to
incorporate the said in the agreement to sell
in the year 1975 and even if the defendants
were agreeable, they could have been made
as witness of the said agreement or the
sale-deed, but no such event transpired.

33. Section 27 of the Limitation Act
which is an exception to the rule and
provides that as the determination of the
12 All. Bhawani Prasad Vs. Sheo Kumar & Ors.
787
period of limitation provided for instituting
a suit for possession of any property, the
right
to
such
property
shall
stand
extinguished. The law of limitation is a
statute of a repose. It ordinarily bars a
remedy but does not extinguish a right,
however, the exception to the said rule is
enshrined in Section 27 which state that at
the determination of the period hereby
limited to any person for instituting a suit
for possession of any property, his right to
such property shall be extinguished [See:
Prem Singh and others v. Birbal and
others, (2006) 5 SCC 353].

34. Thus, taking overall view of the
matter especially in light of the provisions
contained in the Limitation Act, Indian
Evidence Act as well as the Transfer of
Property act, it would be found that the
period of limitation as provided in the
Limitation Act, 1908 which was larger then
the period as prescribed in the Limitation
Act, 1963.

35. In the aforesaid circumstances,
the date of mortgage being 1931 for
which seven and a half years was
provided which ended in September,
1939, the period of limitation would
commence. In terms of Limitation Act,
1908, 60 years was available but the
moment of the Limitation Act, 1963 came
into force on 5 October 1963 and by then
the proceedings had not commenced.
Accordingly, the benefit of Section 31(a)
would not be available as no proceedings
were pending. In such situation, Section
30 would apply and on the date of
enforcement of the Limitation Act, 1963,
seven years was available from 1963 to
institute a suit which again would expire
in the year 1970. This period of seven
years as provided in Section 30 of the
Limitation Act, 1963 was reduced to five
years retrospectively by means of the
Amending Act of 1969.

36. Be that as it may, in any case by
any stretch, the limitation expired on
1970. Thereafter, by virtue of Section 27
of the Limitation Act, 1963, the rights of
legal heirs stood extinguished. Any
attempt by Ayodhya Prasad Singh to
execute any registered agreement to sell
in the year 1975 or the sale-deed in the
year 1981 was without any authority as
rights of Ayodhya Prasad Singh had
extinguished and nothing remained which
could be made the subject matter of
transfer by virtue of the agreement to sell
or the sale-deed of 1981.

37. In this light Shiv Kumar Mishra,
the plaintiff could not get any better rights
then his vendor i.e. Ayodhya Prasad Singh
or his legal heirs. The attempt to cover up
by relying upon the arrangement arrived at
between the parties allegedly in the year
1967 and again in second week of June,
1975 also had to be ignored. Since, there
was no statement to prove that the
arrangement was first arrived at in the year
1967 then the only statement is relating to
Narsingh Pandey where he states that such
arrangement was arrived at in the second
week of June, 1975, but his testimony on
this point would be hit by Section 91 and
92 of the Evidence Act. Apart from the fact
that such arrangement which as stated by
the learned counsel for the respondents
may be treated an acknowledgment for
extending period of limitation also has no
legs to stand as no such acknowledgment
was in writing, hence, it could not be taken
note of and as already stated above, it was
neither incorporated in the agreement to
sell which was executed few weeks after
the alleged arrangement was arrived at in
second week of June, 1975, hence, the
788 INDIAN LAW REPORTS ALLAHABAD SERIES
same was not proved. Moreover, once a
registered mortgage-deed had already been
executed without redeeming the same,
Ayodhya Prasad Singh or his legal heirs
could not transfer his property to a third
party who could claim right. Thus, for all
the aforesaid reasons, this Court finds that
the reasoning of the two Courts while
dealing with the issue of limitation is not in
consonance
with
law nor
the
legal
provisions have been considered and is perse bad and erroneous on the face of the
record.

38. This Court is satisfied that the
judgment and decree passed by the two
Courts suffer from substantial error as
neither the provisions of law have been
considered and the findings returned are
based on improper reception of evidence,
ignoring the provisions of law, hence, the
judgment and decree passed in Civil
Appeal No.233/1984 dated 02.02.1988 is
set aside so also the judgment and decree
dated 18.07.1984 passed by the 7th
Additional Munsif, Faizabad in Regular
Suit No.355/1981 is also set aside.
Consequently, the suit filed by the original
plaintiff Shiv Kumar Mishra bearing
No.355/1981
shall
stands
dismissed
consequences to follow. Accordingly, this
appeal
is
allowed.
In
facts
and
circumstances, there shall be no order as to
costs. The record of the trial Court shall be
returned forthwith.
----------
(2023) 12 ILRA 788
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.12.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 4726 of 2023
alongwith other connected cases

Puja Kumari Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Shreesh Kumar Mishra Atal, Sharad Pathak

Counsel for the Respondents:
C.S.C., Ran Vijay Singh

Civil Law - Constitution of India,1950 -
Articles 12, 14, 226, 309 - U.P. Basic
Education (Teachers) Services Rules, 1981
-
Rule
21
-
U.P.
Basic
Education
(Teachers) (Posting) Rules, 2008 - Rule 8
- Right of Persons with Disabilities Rules,
2017 - Rule 5(2) - Inter-District Transfer -
Government Service - Weightage System -
Judicial Review - Public Sector Undertakings -
Differently Abled Teachers
The petitioners, Assistant Teachers in Junior
Basic Schools under the U.P. Basic Education
Board,
challenged
Clause
12(4)
of
the
Government Order dated 02.06.2023, Clause
10(4) of the Board's order dated 08.06.2023,
Clause 8 of the clarification order dated
16.06.2023,
and
the
transfer
list
dated
26.06.2023, seeking inclusion of their spouses'
employment in public sector banks, public sector
undertakings (e.g., LIC, NHPC, BSNL), nongovernment aided schools, and other statutory
corporations as "Government Service" to avail
10 quality point marks for inter-district transfers
under the U.P. Basic Education (Teachers)
Services Rules, 1981, and U.P. Basic Education
(Teachers) (Posting) Rules, 2008. Additional
challenges included non-allocation of weightage
for serious ailments, differently abled status,
and
gender-based
weightage
for
female
teachers, alleging violations of Article 14 and
Rule 5(2) of the Right of Persons with
Disabilities Rules, 2017. Held: (1) The writ
petitions were disposed of without finding
illegality
in
the
St.'s
policy
restricting
"Government Service" to employees governed
by the proviso to Article 309 of the Constitution,
as clarified in Clause 8 of the order dated
16.06.2023. (2) The court upheld the Board's
interpretation, as it is the author of the policy,
and employees of public sector undertakings,