Regular Second Appeal No. 396 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 396 of 2010 Date of decision : February 01, 2010 Rajpal and others ....Appellants versus Munni Devi and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. J.P. Sharma, Advocate, for the appellants L.N. Mittal, J. (Oral) This is second appeal filed by legal representatives of defendant No.1 and by defendants No.2 and 3 assailing judgment and decree dated 24.10.2009 passed by the learned Additional District Judge, Narnaul. Suit was filed by the respondents No.1, 9 and 10 and one Sarbati, seeking declaration that they along with proforma defendants No.4 to 10 i.e. respondents No.2 to 8 are owners in possession of suit land and defendants No.1 to 3 i.e. contesting defendants have no right, title or interest therein because the mortgage in favour of contesting defendants stands redeemed by plaintiffs and proforma-defendants. The plaintiffs alleged that Hira and Parbhati, predecessors-in- Regular Second Appeal No. 396 of 2010 -2- interest of plaintiffs and proforma defendants being owners in possession of the suit land measuring 88 kanals 15 marlas mortgaged the same with possession with contesting defendants No.1 to 3 for Rs.195/- but the said mortgage was redeemed on 11.07.1964 for which a writing was also made. Defendant No.2 Prem Singh also affirmed affidavit on 03.05.1991 regarding redemption of the mortgage. However, in the revenue record defendants No.1 to 3 are still recorded to be mortgagees. The defendants, interalia, pleaded that the mortgage was never redeemed on 11.07.1964 nor defendant No.2 affirmed affidavit on 03.05.1991 regarding redemption. Other averments of the plaintiffs were also controverted. Defendants No.1 to 3 also filed counter claim seeking declaration that right of redemption had extinguished by efflux of time and therefore, defendants No.1 to 3 have become owners in possession of suit land and are entitled to get the revenue record corrected accordingly. Defendants No.7 to 9 admitted the claim of the plaintiffs, whereas defendants No.4, 5, 6 and 10 denied the factum of redemption having been made on 11.07.1964. During the pendency of the suit, counsel for the plaintiffs made statement to withdraw the suit on 21.12.2004 and the suit was accordingly dismissed as withdrawn and the counter claim preferred by defendants No.1 to 3 only survived for adjudication. Learned Civil Judge (Junior Division), Mohindergarh vide judgment and decree dated 15.04.2005 dismissed the suit filed by the plaintiffs as withdrawn and decreed the counter claim preferred by defendants No.1 to 3, declaring them to be owners in possession of the suit Regular Second Appeal No. 396 of 2010 -3- land. However, first appeal preferred by Munni Devi plaintiff No.3 alone has been allowed by the learned Additional District Judge, Narnaul and counter claim filed by the contesting defendants No.1 to 3 has been dismissed vide impugned judgment and decree dated 24.10.2009. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned counsel for the appellants and perused the case file. The sole basis of counter claim by contesting defendants is that they as mortgagees have become owners of the suit land as right of redemption of mortgage stood extinguished on account of lapse of limitation period to seek redemption of the mortgage. However, this plea of contesting defendants cannot be accepted. Admittedly, the mortgage was with possession. Full Bench of this Court in the case of Ram Kishan and others versus Sheo Ram and others, 2008(1) RCR (Civil) 334 has laid down that there is no limitation period for redemption of usufructuary mortgage with possession except in certain circumstances. In the instant case, the contesting defendants did not even claim their case to be falling within the exceptions provided in the judgment in the case of Ram Kishan (supra). Consequently, it is apparent that the mortgage being with possession, there was no limitation period for redemption of the mortgage. In other words, the mortgagees/contesting defendants No.1 to 3 have not become owners of the suit land by efflux of time nor the right of redemption stood extinguished. There is no illegality or infirmity in the impugned judgment of the lower appellate court on this count. Learned counsel for the appellants, however, contends that the lower appellate Court has observed in para no. 18 of the impugned Regular Second Appeal No. 396 of 2010 -4- judgment that appellant Munni Devi has right to redeem mortgage of her share of the suit land. It was contended that suit stood dismissed as withdrawn and therefore, no such finding could be recorded by the lower appellate court. The contention is bereft of any substance because such a finding had to be recorded to adjudicate upon the counter claim made by contesting defendants No.1 to 3. For the reasons recorded hereinabove, I find no merit in the instant second appeal which is accordingly dismissed in limine. ( L.N. Mittal ) February 01, 2010 Judge 'tiwana'