IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 438 of 2000 along with RSA No. 439 of 2000. Date of decision: 22.11.2010 1. RSA No. 438 of 2000 Hari Singh and others …….Appellants. Vs Jit Ram and others …....Respondents. 2. RSA No. 439 of 2000 Tuli …Appellant. Vs Jit Ram and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 For the appellants : Mr. Sunil Mohan Goel, Advocate. (in both RSAs) For the respondents : Mr. K.D. Sood, Advocate for respondent No.1. (in both RSAs) Kuldip Singh , Judge (oral) This judgment shall dispose of RSA No. 438 of 2000 and RSA No. 439 of 2000 having arisen from common judgment and decree, dated 26.6.2000, passed by learned District Judge, Kullu in Civil Appeal Nos. 45/98 and 49/98 affirming the judgment and decree, dated 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 22.4.1998, passed by learned Senior Sub Judge, Lahaul-Spiti at Kullu in Civil Suit No. 161 of 1993. The parties are referred to as in trial court. 2. The respondent No.1/plaintiff had filed a suit for declaration and injunction against the appellants and other respondents. The plaintiff has sought declaration that he has become owner in possession of 1/16 share of the suit land, which he holds as mortgagee, he may be declared to be owner in possession of 10/16 share out of the suit land barring land measuring 2-8-0 bighas comprised in Khasra Nos. 191 and 628, which may be held to have been taken by Smt. Tiki, defendant No.1 in partition vide case No. 27-T of 1984 in full satisfaction of her whole interest in the suit land. It has also been prayed that revenue record viz Jamabandi for the year 1986-87 may be declared to be wrong to the extent it reflects plaintiff to be owner of only 32 shares out of total 64 shares and not of 10/16 share and to the extent it shows that the plaintiff is mortgagor qua 24 shares under defendants No. 1 to 3. The instrument of partition drawn by Assistant Collector, 1st Grade showing plaintiff to be owner of 96 shares out of 176 shares and mortgagor of 72 shares thereof under Choti, Kali and Tiki, defendants No.1 to 3 may also be declared to be wrong, null and void against the plaintiff. The mutation, dated 18.5.1990 reflecting the aforesaid partition may also be declared to be wrong. The plaintiff, as a consequential relief, has prayed that defendants No. 1 to 3 may be restrained from claiming themselves to be mortgagees of plaintiff qua the recorded 72 shares or any part of the suit land and further they may be restrained from alienating or creating any charge with respect to any part of the suit 3 land on the basis of wrong revenue entries showing them as mortgagees. The plaintiff has also prayed that defendants may be restrained from interfering or alienating or creating charge over the aforesaid 10/16 share in the suit land owned and possessed by the plaintiff. It is not necessary to give further details of the plaint in view of ultimate order, which I intend to pass in both the appeals. It is sufficient to notice that the defendants contested the suit and prayed for dismissal of the suit. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is bad for non-joinder of parties as alleged? And if so its effect? OPD 2. Whether the suit is within time? OPP 3. Whether the plaintiff is estopped by his act and conduct from filing this suit as alleged? OPD 4. Whether the suit land to the extent of 1/16 share has been in possession of the plaintiff as mortgagee and by afflux of time he has become owner of the same? OPP. 5. Whether besides the aforesaid 1/16 share in suit land, the plaintiff is owner in possession to the extent of 9/16 share in the suit land, as alleged? OPP 6. Whether the entries in the Jamabandi in the year 1986-87 and the instrument of partition drawn by the AC Ist grade on the basis of these entries and the consequential mutation dated 18.5.1990 are wrong, illegal and void and not binding as alleged? OPP 7. Whether the plaintiff is entitled to the permanent prohibitory injunction as alleged? OPP 7A.Whether the mortgagee of ¼ share of Shri Mani Ram effected by his mother Smt. Purnu is binding on the defendants as alleged? OPP. 8. Relief. 3. The learned trial court held issues No.2, 4, 5, 6, 7, 7A in affirmative, issues No. 3 in negative, whereas issue No.1 was held not pressed and the suit was decreed on 22.4.1998. The plaintiff was 4 declared owner in possession of 1/16 share of the suit land, which he held as mortgagee. He was declared owner in possession of 10/16 share of the suit land. The entries in Jamabandi for the year 1986-87 were declared illegal, null and void, wherein the plaintiff was shown owner of only 32 shares out of total 64 shares in the suit land instead of 10/16 share. The partition order passed by Assistant Collector, 1st Grade on 17.5.1989 and order No. 1340, dated 18.5.1990 were declared illegal and not binding on the rights of the plaintiff. The defendants were permanently restrained from interfering, alienating or creating any charge over 10/16 share of the plaintiff in the suit land on the basis of wrong revenue entries reflected in the latest revenue record. In two first appeals, the judgment and decree, dated 22.4.1998 were upheld in common judgment by learned District Judge on 26.6.2000, hence the present two second appeals, which have been admitted on following identical substantial questions of law:- 1) Whether Smt. Purnu was not competent to create mortgage on behalf of her minor son Mani Ram in the facts and circumstances of the case? 2) Whether in view of the provisions of H.P. Restitution of Mortgaged Land Act, 1976, and other enactments in this behalf the mortgage still subsists and the appellants are entitled to restitution of possession? 3) Whether the suit of the plaintiff is barred by limitation? 4) Whether the courts below have misread and misappreciated the evidence both oral and documentary on record and the conclusions arrived at are apparently contrary to law? 4. I have heard the learned counsel for the parties in both appeals and have also gone through the record. The learned counsel for the appellants has submitted that two courts below have misconstrued 5 and misinterpreted the pleadings and the respective case put forward by the parties. The two courts below have declared the plaintiff owner in possession of 1/16 share of the suit land, which he held as mortgagee. It has been held that the partition order passed by Assistant Collector, 1st Grade on 17.5.1989 and order No. 1430, dated 18.5.1990 are not binding on the rights of the plaintiff. There was no condition in the mortgage, from where the limitation would start for redemption of mortgage, which was usufructuary and for redemption of such mortgage, the suit can be filed at any time. In view of findings recorded by the courts below, the plaintiff could not have been declared owner of 1/16 share of the suit land, which he was holding as mortgagee. There was no suit for foreclosure. Once a mortgage always a mortgage principle applies in the present case. It has been submitted that the courts below have erred in setting aside the partition order and the relief granted by the courts below against the partition order is in conflict with Section 171 of the Himachal Pradesh Land Revenue Act. In substance, the submission of the learned counsel for the appellants is that the suit filed by the plaintiff is not maintainable. The learned counsel for the plaintiff has supported the impugned judgment and decree and has submitted that no fault can be found with the judgment and decree of confirmation recorded by the learned District Judge. 5. The substantial questions of law No. 2 and 4 are taken up first for consideration. The perusal of the plaint would show that the plaintiff has prayed that he may be declared as owner of the land, which he was holding as mortgagee as the mortgage was of the year 1908 and it 6 has not been redeemed. The plaintiff has not projected the case that there was a condition in the mortgage and on fulfillment of that condition or on the happening of that condition, the limitation would start for redemption of the mortgage. In absence of any condition for starting the limitation, in a case of usufructuary mortgage, there is no limitation for redemption of the mortgage. The learned counsel for the appellants has relied judgment dated 1.9.2009, in LPA No. 124 of 2008, titled Jaimal and others vs. State of H.P. and others, wherein the Division Bench has held that there is no limitation prescribed for redemption of usufructuary mortgage and the application could not be held to be time barred. In LPA No. 124 of 2008, an application under Section 4 of the H.P. Restitution of Mortgage Land Act, 1976 was under consideration. In so far as limitation in a suit for redemption of usufructuary mortgage is concerned, the same principle is applicable. This being the position, the plaintiff as mortgagee is not entitled to be declared owner of 1/16 share in the suit, which he was holding as mortgagee. The two courts below have erred in recording this finding in view of the position of law. In the plaint, the plaintiff has also prayed setting aside the partition order and such prayer is not permissible in view of clause XVII and XVIII, sub- section 2 of Section 171 of Himachal Pradesh Land Revenue Act, which provides that a Civil Court shall not exercise jurisdiction over any claim for partition of an estate or any question connected with, or arising out of proceedings for partition not being a question as to title in any of the property of which partition is sought, any question as to the allotment of land on the partition of an estate holding or tenancy, or as to distribution 7 of land. The prayer made in the suit against the partition order on the face of aforesaid Section 171 is not permissible. The two courts below have not appreciated the legal position involved in the suit, hence substantial questions of law No. 2 and 4 are decided in favour of the appellants. The impugned judgment and decree are not sustainable and are liable to be set aside. In view of decision on substantial questions of law No. 2 and 4, no separate decision on substantial questions of law No. 1 and 3 is necessary. 6. No other point has been urged. 7. In view of the above discussion, both the appeals are allowed and the impugned judgment and decree, dated 26.6.2000 are set aside and the suit filed by respondent No.1-plaintiff is dismissed with no order as to costs. (Kuldip Singh ) Judge. November 22, 2010. (pankaj)