IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4370 of 2001 Date of Decision: 19.5.2009 Smt.Natho Devi and others. ....... Appellants through Shri R.A.Yadav,Advocate. Versus Bhoop Singh and others. ....... Respondent nos.1, 3, 4 & 5 through Shri Rajesh Arora, Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment and decree dated 21.8.2001 passed by the Additional District Judge, Gurgaon (hereinafter referred to as `First Appellate Court') whereby the appeal of the plaintiffs-respondent nos. 1 to 5 was accepted, the judgment & decree dated 1.3.1999 of the Civil Judge (Junior Division), Gurgaon (described hereinafter as `the trial Court') were set aside and their suit was decreed. Respondent nos. 1 to 5 along with Smt.Kishan Devi (since deceased and now represented by respondent nos. 1 to 5 being her legal heirs) had filed a suit for declaration with consequential relief of permanent injunction and in the alternative, for possession. It was prayed that they be R.S.A.No.4370 of 2001 -2- .... declared owners in possession of the land in dispute as the legal heirs of Hira Lal and Ashrafi, deceased and the defendants – appellants & proforma respondent nos.6 to 11 be restrained from dispossessing them or interfering in any manner by way of digging and constructing a wall over it. It was also prayed that if the appellants & proforma respondent nos. 6 to 11 were successful in dispossessing them from the land in dispute, then a decree for possession be also passed in their favour. It was pleaded that one Nanda son of Nanwa was owner in possession of the land comprised in Khewat No.1266 measuring 16 biswas situated in the revenue estate of village Sohna; that Nanda had mortgaged the said land to Dhan Singh son of Ram Singh on 8.7.1914 for a consideration of Rs.40 by means of an oral mortgage and handed over the possession thereof to him; that mutation no.336 dated 27.11.1914 was sanctioned to that effect; that Nanda was succeeded by his son Puran, who has since expired and the appellants are his successors-in-interest; that Dhan Singh was succeeded by his son, Hira Lal, who has also died and respondent nos. 1 to 5 are his successors-in-interest; that the land comprised in khasra no.1266 was converted into the land bearing khewat no. 23, khata no.33, khasra no.437 (4-0) as per jamabandi for the year 1986-87. On the basis of the above averments, it was prayed by respondent nos.1 to 5 that since the mortgagor or his successors-in-interest have failed to redeem the mortgage within the prescribed period of sixty years, they be declared owner in possession of the suit land. R.S.A.No.4370 of 2001 -3- .... Upon notice, the proforma respondents nos. 6 to 11 and Puran, who were impleaded as defendants in the suit, appeared and filed two separate sets of written statement. In their written statement, the proforma respondents nos. 6 to 11 pleaded that respondent nos. 1 to 5 have got no right, title or interest on the land bearing Rect.No.441 (3-0) situated in the revenue estate of village Sohna because they have sold the same to some of them; that respondent nos. 1 to 5 are not the legal heirs of Hira Lal; that respondent nos. 1 to 5 are not owners in possession of the land in dispute nor they were mortgagees as alleged; that the proforma respondent nos. 6 to 8 had purchased the suit land vide registered sale deeds dated 14.11.1973 and 14.9.1983 and that these respondents have become owners in possession of 2 kanals 15 marlas land out of khasra no.441 and that respondent nos. 1 to 5 had no cause of action to file the suit. In his written statement, Puran pleaded that respondent no.1 to 5 had no right, title or interest in the land in dispute; that they had no locus standi to file the suit; that the mortgage had extinguished on account of use and occupation of the mortgaged property and income derived therefrom as well as on account of lapse of time; that the particulars of the mortgage have not been given and, therefore, the suit was not maintainable in the present form; that there was no relationship of mortgagor and mortgagee between him and respondent nos. 1 to 5 and that since these respondents were acknowledging the mortgage, they have not become the owners in possession of the land in dispute. On the pleadings of the parties, the trial Court framed the R.S.A.No.4370 of 2001 -4- .... following issues:- 1. Whether the plaintiffs are owners in possession of the land in dispute on the ground as alleged?OPP 2. Whether the plaintiffs have no right, title or interest in the property in dispute as alleged?OPP 3. whether the plaintiffs estopped from filing the present suit by their own, act, conduct etc.?OPD 4. Whether the suit of the plaintiffs is not maintainable in the present form?OPD 5. Whether the mortgage in question has extinguished on the grounds stated in the preliminary objection No.5 of the W.S. If so, to what effect/OPD 6. Relief. After appraisal of the entire evidence on record, the trial Court dismissed the suit of respondent nos. 1 to 5, whereas in appeal, its findings were upset by the First Appellate Court. Hence, this Regular Second Appeal. On 2.11.2001, while admitting the appeal, this Court had directed it to be heard along with R.S.A. No.1611 of 1999. The Registry has put up this matter for disposal before the Court with a report that R.S.A.No.1611 of 1999 has since been decided on 22.10.2008 by a learned Single Judge in view of the judgment of the Full Bench in Ram Kishan and others Versus Sheo Ram and others, decided on 12.12.2007, reported as 2008(1) R.C.R. (Civil) (P&H) 334. R.S.A.No.4370 of 2001 -5- .... At the hearing, both the learned counsel for the parties are agreed that this appeal may be disposed of in view of the judgment of the Full Bench in Ram Kishan's case (supra). I have heard the learned counsel for the parties and have gone through the impugned judgment, as also the above judgment of the Full Bench. The questions of law which arise for determination in this appeal are as under:- 1. Whether the findings recorded by the First Appellate Court are perverse and are liable to be set aside? 2. Whether the mortgage in this case is a usufructuary mortgage or a simple mortgage and is redeemable even today and the rights of the mortgagor not extinguished by efflux of time? In Ram Kishan and others (supra), the Full Bench in paragraphs 30,31,32 and 42 has observed as under:- “30. Thus, the right of redemption by act of parties can be extinguished by independent contract subsequent to the mortgage and not by an unilateral act on the part of the mortgagee under the mortgage. 31. In Ganga Dhar's case (supra), Hon'ble Supreme Court was examining a mortgage which was for a period of 85 years but the same was sought to be redeemed before the expiry of the said period on the ground that such long period amounts to R.S.A.No.4370 of 2001 -6- .... clog on redemption. The Court to the following effect:- “The right of redemption, therefore, cannot be taken away. The Courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage with the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagor's right to redeem the mortgage after the specified period. This is not permissible, for “once a mortgage always a mortgage” and, therefore, always redeemable. The same result also follow from Section 60 of the Transfer of Property Act....” 32.The said judgment was quoted extensively by the Hon'ble Supreme Court in Harbans's case (supra), which arose out of a judgment of this Court reported as Harbans v. Om Parkash, 1998(1) RCR (Civil) 678 : 1998(2) PLR 172. The order passed by this Court is reproduced for ready reference:- “1. This is plaintiff's second appeal. 2. Plaintiff filed civil suit contending therein that the land in dispute was mortgaged by the ancestors of R.S.A.No.4370 of 2001 -7- .... One Bhira with the fore-fathers of plaintiff and mortgage has not been got redeemed by the mortgagor within 30 years and so, the plaintiff and defendants 2 and 3 have become owners by efflux of time. Upon notice of suit, defendant No.1 contested the suit and alleged that mortgage has already been redeemed. He denied that plaintiff and defendants 2 and 3 have become owners by efflux of time. Trial Court decreed the suit, but on appeal by defendant No.1 judgment of the trial Court has been modified and it has been held that plaintiff and defendants 2 and 3 have not become owners as there is no period of limitation to redeem usufructuary mortgage. It has, however, been held that defendant No.1 has failed to prove the mortgage has been redeemed. Against the judgment and decree of the first appellate Court, plaintiff has come in second appeal. 3. Learned counsel appearing on behalf of plaintiff relying upon judgment of the Apex Court in State of Punjab and others v. Ram Rakha and others, 1998(3) RCR (Civil) 124 : JT 1997(2) SC 577, has contended that by not redeeming the mortgage within the stipulated period, mortgagor has lost right to redeem the same. R.S.A.No.4370 of 2001 -8- .... 4. After hearing the counsel and going through the record, I am of the view that the judgment cited by the counsel for plaintiff in Ram Rakha's case (supra) , the point in issue was not considered. In this case, it is the admitted case of the parties that mortgagee is in possession of the property in dispute and no evidence has been brought on record by the mortgagee to show that mortgage was for a fixed period. Since no time was prescribed for redeeming the land, the mortgagor has the right to get the property redeemed, there being no limitation for redeeming the said mortgage (emphasis supplied). In this regard, reference be made to judgment in Panchanan Sharma v. Basudeo Prasad Jaganani and others, 1995 HRR 575. Consequently, this appeal being without any merit shall stand dismissed.” 42.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 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 thereof. Thus, it is held that once a mortgage always a mortgage and is always redeemable.” R.S.A.No.4370 of 2001 -9- .... The facts of the instant case reveals that the mortgage of the suit land by the predecessor-in-interest of the appellant in favour of the predecessor-in-interest of respondent nos. 1 to 5 was not disputed. The possession of the suit land was also handed over at that time and no time limit was fixed for redemption of the mortgage. Therefore, it was a usufructuary mortgage not a simple mortgage. In this view of the matter, the observations of the Full Bench reproduced above are straight-away attracted to the facts of the instant case and the mortgage could be redeemed at any time being usufructuary mortgage. The questions of law, as mentioned above, are, therefore, answered to say that the mortgage in this case was a usufructuary mortgage and not a simple mortgage and it could be redeemed at any time and that the findings recorded by the First Appellate Court are liable to be set aside. Accordingly, this appeal is accepted, the judgment & decree of the First Appellate Court are set aside and the appellants or the proforma respondents, who are said to be bona fide purchasers of the suit land, are held entitled to get redeemed the mortgaged suit property by paying the mortgage money to the successors-in-interest of the original mortgagee. May 19,2009 ( Mahesh Grover ) “SCM” Judge