RSA No.893 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.893 of 2006 Date of Decision: 20.11.2008 Bisakha Singh and others .....Appellants Vs. Sadhu Singh and another ....Respondents .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr.Ashok Singla, Advocate for the appellants. None for the respondents. .... RAJIVE BHALLA, J (Oral) The appellants, challenge judgements and decrees dated 22.2.2003 and 3.8.2004, passed by the Civil Judge (Junior Division), Phul and the Additional District Judge, Bathinda, dismissing the suit and the appeal respectively. The appellants filed a suit praying for grant of a declaration that they are owners in joint possession of land measuring 20 kanals and 8 marlas, as the respondents have failed to redeem the usufructuary mortgage within the prescribed period of limitation. It is alleged, in the plaint, that one Badna Singh, morgaged the suit land with the forefathers of the appellants, more than 100 years ago. As the respondents, who are successors-in-interest of the mortgagor, have failed to redeem the RSA No.893 of 2006 2 mortgaged property, within the prescribed period of limitation, the appellants have become owners in possession. In opposition to the averments in the plaint, the respondents admitted the mortgage but denied that they had become owners and also asserted that the suit was filed by concealing the fact that an application had been filed for redemption of the mortgage. The trial Court dismissed the suit by holding that as the mortgage did not prescribe a period for redemption, the mortgage subsists and as a result, the appellants had not become owners in possession, by efflux of time. Aggrieved by the said judgement, the appellants filed an appeal. The Additional District Judge, Bathinda, dismissed the appeal and affirmed the findings recorded by the trial Court. I have heard learned counsel for the appellants and perused the impugned judgements. The appeal was admitted on 8.8.2006 on the following question of law :- “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 ?” Admittedly and as accepted by counsel for the appellants, the question of law has been answered against the appellants and in favour of the respondents by a Full Bench of this Court in Ram Kishan and others V. Sheo Ram and others, 2008(1) PLR 1, wherein while considering the period of limitation prescribed for filing an application, for redemption of a usufructuary mortgage, it was held as follows :- RSA No.893 of 2006 3 “33. The arguments that after the expiry of period of limitation to sue for foreclosure, the morgagees have a right to seek declaration in respect of their title over the suit property is not correct. From the aforesaid discussion, it is apparent that the mortgage cannot be extinguished by any unilateral act of the mortgagee. Since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. It is equally well settled that it is not title of the suit, which determines the nature of the suit. The nature of the suit is required to be determined by reading all the averments in the plaint. Such declaration cannot be claimed by an usufructuary mortgagee. Thus, we prefer to follow the dictum of law laid down by the larger Bench in Seth Ganga Dhar's case (supra) as well as judgements of Hon'ble Supreme Court in Jayasingh Dnyanu Mhoprekar's case (supra), Pomal Kanji Govindji's case (supra), Panchanan Sharma's case (supra) and Harbans's case (supra) in preference to the judgements relied upon by the mortgagees in Prabhakaran's case (supra) and Sampuran Singh's case (supra). 34. Therefore, we answer the questions framed to hold that in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not raise on the date of mortgage but RSA No.893 of 2006 4 will arise on the date when the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof. Thus, it is held that once a mortgage always a mortgage and is always redeemable.” It is, therefore, apparent that in a usufructuary mortgage, where no time limit is fixed for redemption, the right to seek redemption accrues on the date the mortgagor pays or tenders to the mortgagee or deposit in Court, the mortgage money or the balance thereof and not from the date of the mortgage. In the instant case, as the mortgage does not assign a date or a period for redemption, the limitation for filing a suit/application for redemption of the mortgaged property, has not expired. The Courts below, therefore, rightly dismissed the suit and the appeal. The impugned judgements do not call for interference and are affirmed. In view of what has been stated herein above, the appeal is dismissed, with no order as to costs. 20.11.2008 (RAJIVE BHALLA) GS JUDGE