R.S.A.No.3667 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3667 of 2001 Date of Decision : 27.08.2009 Smt. Jaspal Kaur ...Appellant Versus Mahinder Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. Ashok Verma, Advocate, for the appellant. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for declaration that the plaintiff-respondents have become owner of the suit land on the basis of adverse possession, as suit property was not redeemed by the defendant within the stipulated period, was decreed. It is the case of the plaintiffs that Bikram Singh and Gurdial Singh, vide registered mortgage deed dated 13.3.1947 got their land mortgaged with Hazara Singh, father of plaintiff Nos.1 to 4 and plaintiff Nos.5 to 7, for a sum of Rs.12,000/-. A mutation to this effect was entered and sanctioned on 6.5.1947. After the partition of the country, Gurdial Singh and Bikram Singh filed their claims for the lands and got sanctioned in the said claims that the land of each member is mortgaged R.S.A.No.3667 of 2001 2 with Hazara Singh and others for a sum of Rs.12,000/-. Despite several requests, the defendants totally refused to admit the claim of the plaintiffs over the suit land and that the defendants failed to get their lands redeemed within the prescribed period of 30 years from the date of mortgage and, thus, the plaintiffs are the owners of the suit land. The present suit for declaration was contested by the defendant- appellant on the ground that suit land has already been ordered to be redeemed by preliminary decree dated 31.1.1964 and the final decree dated 10.5.1964. Such decrees have been affirmed by the first Appellate Court on 6.8.1965 and 3.11.1965 respectively. The learned trial Court decreed the suit holding that the plaintiffs have become owner of the land in dispute as mortgage has not been redeemed within a period of 30 years from the date of mortgage. Such decree was affirmed in appeal as well. The present appeal was admitted for final hearing on 28.2.2005 in the presence of Mr. Suresh Monga, Advocate, for respondent Nos.1 and 2, on the following substantial question of law : “Whether once mortgage is usufructuary in nature, period of limitation will apply or not?” The appeal was ordered to be listed after the decision in R.S.A.No.1611 of 1999. The aforesaid appeal was decided by the Full Bench of this Court in a judgment referred as Ram Kishan and others Vs. Sheo Ram and others AIR 2008 Punjab & Haryana 77. The appellant moved an application for earlier hearing of the appeal after the decision of the Full Bench of this Court, of which notice was issued to the counsel for the respondents. On 3.2.2009, Mr. Rakesh R.S.A.No.3667 of 2001 3 Nagpal, Advocate, put in appearance on behalf of respondent Nos.1 and 2 and stated that Mr. Suresh Monga, Advocate, was appearing on behalf of the said respondents, but the power of attorney in his favour has been cancelled. In view of the said fact, notices were ordered to be issued to respondent Nos.1 to 12. Subsequently, respondent Nos.6, 7, 10 and 11 have been served by affixation, whereas notices issued to respondent Nos.1 to 4 have not been received back. Respondent Nos.8 and 9 are reported to be not residing at the given address as they are married, whereas respondent Nos.5 and 12 are reported to have died. It appears that the statement of learned counsel for the respondents that the power of attorney has been cancelled is to avoid the decision of this Court on merits of the controversy, after the judgment of Full Bench of this Court. It was for the respondents to make arrangements for the representative in the appeal, after cancellation of the power of attorney. Since there is no representative on behalf of the respondents though they were served with the notices of the appeal, I am of the opinion, that their absence is intentional and to avoid the decision on merits. Even otherwise, the appeal can be taken up for hearing against the respondents, who have died, in view of the provisions of Order 22 Rule 4 of the Code of Civil Procedure, as amended by this Court and in terms of Volume 5, Chapter 3, Part-A, Rule 8 of the Punjab and Haryana High Court Rules and Orders, which contemplate issuance of notices to the respondents by Registered Post. Such sending of notices is sufficient intimation to the party. R.S.A.No.3667 of 2001 4 The question of law as framed by this Court stands answered by Full Bench of this Court in Ram Kishan's case (supra). In view of the said judgment, the present appeal filed by the mortgagors is allowed and the suit for declaration that the mortgagees have become owner of the suit property stands dismissed. 27.08.2009 (HEMANT GUPTA) Vimal JUDGE