RSA No.2187 of 1985 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh. *** RSA No.2187 of 1985 (O&M) Decided on January14,2011. Ranjit (dead) through his legal representatives Smt.Burfi Devi and others --Appellants vs. Attru and another --Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.C.B.Goel,Advocate,for the appellants None for the respondents. Rakesh Kumar Jain, J, (Oral) The present appeal is filed by defendant Ranjit, since deceased (now being represented through his legal representatives) against the judgment and decree of both the Courts below by which the suit for declaration filed by the plaintiff that he has become owner of the suit property by way of fore-closure, has been decreed. Mr.C.B.Goel, learned counsel for the appellants has RSA No.2187 of 1985 (O&M) 2 raised the following substantial question of law:- “Whether a suit for fore-closure is maintainable in a case of usufructuary mortgage where there is no period fixed in the mortgage deed for the purpose of redemption of land?” In order to find out the answer to the question which has been posed by the learned counsel for the appellants, some facts are required to be noticed. The plaintiffs filed a suit for declaration to the effect that they are mortgagees with possession and have become owners of agricultural land measuring 37 bighas 11 biswas out of khewat No.1, measuring 2012-11 out of the share of the defendant Ranjit in Khewat No.1, due to efflux of time to redeem the mortgage. It is alleged that they are successors-in- interest of the mortgagee in possession where as the defendant is the successors-in-interest of the mortgagor. The plaintiffs had relied upon the registered mortgage deed (Ex.P-1) as per which the predecessor-in-interest of the defendant had mortgaged the property in dispute to the predecessor-in- interest of the plaintiffs against a valuable consideration. It is alleged that they are in possession of the land in dispute continuously after the efflux of 30 years, the mortgator has lost his right of redemption in view of Section 61 (a) of the Limitation Act, 1963. Both the Courts have recorded a concurrent finding of fact that the mortgage deed (Ex.P-1) was executed by the RSA No.2187 of 1985 (O&M) 3 predecessors-in-interest of the defendant to the predecessor- in-interest of the plaintiffs and since the mortgage deed is of the year 1916 and neither the defendant nor his predecessors- in-interest had filed any suit for redemption within a period of 30 years, they have become owners of the property in dispute by efflux of time. At the outset, learned counsel for the appellants has submitted that the present suit is not maintainable as in the case of usufructuary mortgage where the mortgagee claims himself to be in possession and there is no time fixed in the mortgage deed for the purpose of redemption, the mortgagor can redeem the land at any time. In this regard, he has relied upon a Full Bench decision of this Court rendered in the case of Ram Kishan and others Vs. Sheo Ram and others 2008 (1) RCR (Civil) 334 in support of his contention. I have heard learned counsel for the appellants and have perused the record with his able assistance. The facts of the case are not much in dispute. The mortgage is established in view of registered mortgage deed (Ex.P-1). Both the learned Courts below have recorded a concurrent finding with respect to possession of the plaintiffs and their predecessor-in-interest as mortgagees. In that circumstances, it takes the colour of usufructuary mortgage and in the case of Ram Kishan and others (Supra), two RSA No.2187 of 1985 (O&M) 4 questions were referred to the Full Bench by a Division Bench of this Court i.e. “(1) Whether the right to seek redemption would arise on the date of mortgage itself in case of usufructuary mortgage when no time limit is fixed to seek redemption ? (2) Whether there is any time limit in the case of usufructuary mortgage to get the property redeemed ?” The Full Bench answered both the questions in the following manner:- “that in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance there of. Thus, it is held that once a mortgage always a mortgage and is always redeemable”. In view of the law laid down by this Court in the aforesaid judgment, the suit filed by the plaintiffs seeking fore- closure of right of redemption by mortgagor is not maintainable and as such, no declaration can be granted by the Courts to the plaintiffs that they have become owners of the property in dispute only due to efflux of a period of 30 years, especially when no time was fixed in the mortgage deed (Ex.P-1) for the purpose of redemption. Thus, the question posed in the beginning of the judgment is answered in favour of the appellants as substantial question of law and it is held that RSA No.2187 of 1985 (O&M) 5 where the property is mortgaged with possession as usufructuary mortgage without fixing any time limit for the purpose of redemption, a suit for fore-closure only on the ground of efflux of time is not maintainable. The upshot of the above discussion leads to the conclusion that the present appeal has merit and the same is hereby allowed and both the judgment and decree of the learned Courts below are set aside with costs through out. January 14,2011 (Rakesh Kumar Jain) RR Judge