Regular Second Appeal No. 427 of 2000 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Regular Second Appeal No. 427 of 2000 Date of Decision: August 17, 2009 Sadhu Singh ......... Appellant versus Jagir Singh (dead) through his L.Rs. .......... Respondents 2. Regular Second Appeal No. 428 of 2000 Sadhu Singh ......... Appellant versus Jagir Singh (dead) through his L.Rs. & others .......... Respondents 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present:- Shri Arun Jain, Senior Advocate with Shri Amit Jain, Advocate for the appellant. Shri Arun Bansal, Advocate for the respondents. HEMANT GUPTA, J. This order shall dispose of RSA No. 427 and 428 of 2000 arising out of same judgment and decree dated 29.07.1999 but arising out of two suits. Jagir Singh s/o Sham Singh filed a suit for declaration (Civil Regular Second Appeal No. 427 of 2000 [2] Suit No. 579 of 7.5.1992) to the effect that the successor-in-interest of defendant Sadhu Singh mortgaged the land in dispute in favour of one Inder Singh in the year 1945-46 vide mutation No. 3795. The plaintiff is successor-in-interest by way of purchase and /or inheritance of Inder Singh, whereas the defendants in the aforesaid suit are the successor-in-interest of the mortgagor – Sadhu Singh. The plaintiff claimed that on account of efflux of time and on account of failure of the defendants to redeem the suit land, the plaintiff is owner in possession as owner of the suit land. The said suit was resisted by the defendant-appellant primarily on the ground that he is in cultivating possession of the suit land for the last more than 36 years without giving any thing to the plaintiff and that he has become owner of the suit land by adverse possession as well. In a separate suit for injunction (Civil Suit No. 137 of 13.03.1993), it was asserted by the plaintiff / now appellant that he is in possession of the suit land as owner since 1992, therefore, he is entitled to a decree for permanent injunction. The learned trial Court returned a finding on the basis of the revenue record from the period 1955-56 onwards, that the possession of Sham Singh and his successors-in-interest is for more than 30 years. Sham Singh is purchaser of mortgagee rights from Inder Singh. It was also found that rapat roznamcha Exhibit D-5 has been produced to show that the suit land has been redeemed but the mutation on the basis of rapat roznamcha has not been approved and ultimately dismissed by the Assistant Collector Second Grade. It was, therefore, held that there was no proof of redemption of the suit land. Since the respondents were found to be mortgagees, therefore, it was held that they are entitled to possession as owner as the suit Regular Second Appeal No. 427 of 2000 [3] land has not been redeemed within the time prescribed. Consequently, the suit filed by defendant Jagir Singh was decreed, whereas the suit filed by the appellant was dismissed. The appeal against the said judgment and decree has also been dismissed. The learned counsel for the appellant has relied upon Full Bench judgment of this Court in Ram Kishan and others vs. Sheo Ram and others, AIR 2008 Punjab and Haryana 77, to contend that as per finding recorded, the possession of the respondents is that of mortgagees and that even if such usufructuary mortgage is not redeemed within the period of 30 years from the date of mortgage, the mortgagor will not still become the owner of the suit land. Learned counsel for the respondents has vehemently argued that, in fact, the appellant has raised a plea that he is owner in possession by adverse possession. The said plea is totally untenable as the appellant claims to be in possession which is not authorised as the land was never mortgaged. I have heard learned counsel for the parties on the following substantial question of law:- Whether the mortgagee Jagir Singh is entitled to declaration that he has become owner of the suit land by efflux of time ? Both the learned Courts below have decreed the suit filed by the respondents – successors-in-interest of Inder Singh - holding that the suit land has not been redeemed and that Jagir Singh is entitled to possession as a mortgagee. The learned trial in Para No. 24 of the judgment, while deciding Issue No. 1 in Civil Suit No. 137 of 13.03.1993, has Regular Second Appeal No. 427 of 2000 [4] observed that possession of Sadhu Singh plaintiff is not disputed. The possession of Sadhu Singh is also established from the revenue record. It was further held that since the mortgagee has filed suit for possession, therefore, there is no threat at the hands of the mortgagor to enter into the suit land forcibly. With the said finding, suit for injunction was dismissed, whereas the suit for possession filed by mortgagee was decreed as the mortgage was not redeemed within the period of thirty years. In Ram Kishan's case (supra), this Court has held that there is no time limit for redemption of usufructuary mortgage. The principle once a mortgage always a mortgage was found to be applicable in the case of usufructuary mortgage. It was held to the following effect:- “38. After considering the aforesaid judgments, we respectfully agree that the view of the Full Bench of this Court in Lachhman Singh's case (supra) and that of Patna High Court in Jadubans Sahai's case (supra). The provisions of Sections 60, 62 and 67 of the Transfer of Property Act are not applicable within the jurisdiction of this Court. Therefore, these provisions are required to be interpreted keeping in view the principles of equity and good conscience. Since the mortgage is essentially and basically a conveyance in law or an assignment of chattels as a security for the payment of debt or for discharge of some other obligation for which it is given, the security must, therefore, be redeemable on the payment or discharge of such debt or obligation. That is the view of the Hon'ble Supreme Court in Pomal Kanji Govindji's case (supra) wherein it has also been held that poverty should not be unduly permitted to curtail one's right to borrow money. Since at one point of time the mortgagor for one or the other reason mortgaged his property to avail financial assistance on account of necessities of life, the mortgagor's right cannot be permitted to be defeated only on account of passage of time. The Regular Second Appeal No. 427 of 2000 [5] interpretation sought to be raised by the mortgagees is to defeat the right of the mortgagor and is wholly inequitable and unjust. The mortgagee remains in possession of the mortgaged property; enjoys the usufruct thereof and, therefore, not to lose anything by returning the security on receipt of mortgage debt. 40. The limitation of 30 years under Article 61(a) beings to run “when the right to redeem or the possession accrues”. The right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. The right to seek foreclosure is co-extensive with the right to seek redemption. Since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time the mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. Thus, the period of redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. In view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore always redeemable would be applicable”. In the present case, it is the mortgagor who is the owner and in possession of the suit property. Once the mortgagor is in established possession of the suit property, then the mortgagee cannot seek possession of the property which was once mortgaged. The mortgagee is only entitled to recover the amount of security of which the land was mortgaged in his favour. The argument of learned counsel for the mortgagee that since the Regular Second Appeal No. 427 of 2000 [6] land is proved to be mortgaged, therefore, the mortgagee is entitled to the possession of the mortgaged property and it is for the mortgagor to seek redemption even after the decision of the this Court in Ram Kishan's case (supra). The said argument is without any merit. Once the mortgagor has entered into possession of the mortgaged property, the usufructuary mortgage comes to an end. If the amount secured by such mortgage has not been discharged, the mortgagee can claim the same but he cannot claim re- entry over the mortgaged property. The mortgagee is not entitled to seek possession of the land mortgaged when the same is in possession of the owner. Thus, the mortgagee is not entitled to the declaration that he has become owner of the suit land by efflux of time or that he is entitled to the possession of the land once mortgaged. In view of the above findings, both the appeals are allowed. Civil Suit No. 579 of 1992 filed by the mortgagee Jagir Singh is dismissed and Civil Suit No. 137 of 1993 filed by Sadhu Singh-mortgagor is decreed. August 17, 2009 ( HEMANT GUPTA ) ks JUDGE