R.S.A.No. 563 of 1984 R.S.A. No. 1039 of 1984 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 17.11.2011 R.S.A.No. 563 of 1984 Milkha Singh and others ......Appellants Versus Achhari and others .......Respondents R.S.A.No. 1039 of 1984 Achhari ......Appellant Versus Milkha Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Deepak Thapar, Advocate, for the appellants in RSA No.563 of 1984 and for respondents No.1 to 4 in RSA No.1039 of 1984. Mr.Naresh Prabhakar Advocate for the appellant in RSA No.1039 of 1984. Mr. R.K.Monaisc, Advocate for respondents No.10 to 13 in RSA No.563 of 1984 and for respondents No. 14 to 17 in RSA No.1039 of 1984 **** R.S.A.No. 563 of 1984 R.S.A. No. 1039 of 1984 2 SABINA, J. Plaintiff Achhari had filed a suit for possession by way of redemption against Milkha Singh and others qua the land measuring 176 kanals 4 marlas described in the head note of the plaint. The case of the plaintiff, in brief, was that the land in dispute had been mortgaged with Rur Singh for ` 6,420/- with possession of Atma Singh, predecessor, vide mortgage deed dated 31.5.1943. After the death of Atma Singh, the land in question had been inherited by his widow Harnam Kaur. After the death of Harnam Kaur, plaintiff had inherited the suit property being her only legal heir. Rur Singh had sold his mortgagee rights vide registered deed dated 12.11.1952 in favour of defendants No.1 to 4. Rur Singh had died. Originally the land measured 197 kanals 16 marlas but during consolidation, the land in dispute was allotted to the owner. Original mortgage deed was executed for 15 years and thus, the land could have been redeemed up to 31.5.1958. The defendants had been asked to except the mortgage money from the plaintiff and deliver possession to her but they had refused to do so. Hence, the suit was filed by the plaintiff. Defendants No.1 to 4, in their written statement, took up the plea that the suit was barred by time and the plaintiff had lost her right to seek redemption of the land. The plaintiff was neither owner nor mortgager of the land in dispute. Two regular second appeals were already pending in this court qua title of the suit property. On merits, the fact that the plaintiff had become owner of the suit land was denied. The factum of mortgage deed dated 31.5.1943 R.S.A.No. 563 of 1984 R.S.A. No. 1039 of 1984 3 executed by Atma Singh in favour of Rur Singh was admitted. It was also admitted that Harnam Kaur was the widow of Atma Singh and the plaintiff was daughter of Harnam Kaur. However, it was denied that the plaintiff was mortgager qua the suit land. It was also admitted that Rur Singh had sold his mortgagee rights in favour of defendants No.1 to 4. The fact that mortgage was with possession for ` 6,420/- was also admitted. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is the mortgagor of the suit land and is entitled to redeem the same? OPP. 2. Whether the plaintiff has lost the right of redemption by efflux of time OPD 3. Whether the suit in the present form is not maintainable in the present form ? OPD 4. Relief.” Parties led their evidence in support of their case. The trial Court vide judgment and decree dated 23.4.1982 passed a preliminary decree qua 77 kanals 10 marlas of land bearing killa No.8/19, 20, 21, 22, 14/1, 2, 9, 13/1, 12/2, 21/19/2, 20/1 and 33/5/2/ in favour of the plaintiff and against the defendants by redemption of mortgage deed dated 31.5.1943 on payment of ` 6,420/-. The plaintiff was directed to pay the amount or deposit the same in the court within a period of one month. Aggrieved by the said judgment and decree, both plaintiff as well as defendants No.1 to 4 preferred appeals. The first Appellate Court vide judgment and decree dated R.S.A.No. 563 of 1984 R.S.A. No. 1039 of 1984 4 18.11.1983 dismissed both the appeals. It was held that the plaintiff, being one of the mortgagers of the suit land having share to the extent of 10 kanals 4 marlas, was entitled to get the entire land measuring 77 kanals 10 marlas redeemed on payment of mortgage amount of ` 6,420/-. Hence, the present two appeals by defendants No.1 to 4 and plaintiff (now represented through Legal representatives). Learned counsel for the plaintiff has submitted that plaintiff Achhari had stepped into the shoes of Atma Singh, after mutation was sanctioned in her favour qua his property which had been inherited by Harnam Kaur. The suit was within limitation. Learned counsel for defendants No.1 to 4, on the other hand, has submitted that the suit was barred by limitation. The mortgage period of 15 years had been reduced to 6 years vide Ex.DA on the basis of a compromise in another suit. Hence, the suit could have been filed only up to 31.5.1979. The suit had been filed in November 1979 and hence, was time barred. The land could not have been got redeemed by the plaintiff as she had share in the said land only to the extent of 10 kanals 4 marlas. After hearing learned counsel for the parties, I am of the opinion that the present appeals are devoid of any merit and deserve dismissal. In the present case, the facts are not in dispute. The execution of the mortgage deed dated 31.5.1943 Ex.P-1 by Atma Singh in favour of Rur Singh with possession qua suit land for a sum of ` 6,420/- is admitted. The mortgage was a period of 15 years. It is R.S.A.No. 563 of 1984 R.S.A. No. 1039 of 1984 5 further admitted that Rur Singh had sold his mortgagee rights to defendants No.1 to 4 vide deed Ex.P-2 dated 11.12.1952. After the death of Atma Singh on 5.9.1951 his property had been inherited by his wife Harnam Kaur and after the death of Harnam Kaur, her property had been inherited by the plaintiff. Mutation in this regard was sanctioned in favour of the plaintiff on 20.6.1962. Ex.DA is the decree passed on the basis of compromise in a suit filed by the reversioners challenging the mortgage deed executed by Atma Singh. As per the decree Ex.DA, it was held that the mortgage would be binding only during the life time of Atma Singh. Atma Singh admittedly died on 15.9.1951. The present suit was filed on 22.1.1979 i.e. Within 30 years of the death of Atma Singh. Present plaintiff was not a party to the previous litigation which culminated in decree Ex.DA. Thus, the suit filed by the plaintiff was within limitation. It has also come on record that a dispute had arisen between plaintiff Achhari and Rur Singh. Rur Singh had claimed 1/3rd share in the land left by Harnam Kaur. In the said suit, plaintiff Achhari admitted the claim of Rur Singh and the suit was got dismissed as withdrawn by him. After the death of Rur Singh, his heirs filed a suit for possession of 94 kanals 1 marla of land on the basis of compromise in the earlier suit dated 24.3.1958. The suit was contested by Achhari that the compromise was not a registered one and was inadmissible in evidence. In the said suit, trial Court held that the compromise in question did not require any registration and the suit filed by Raj Singh and others was decreed. In appeal, R.S.A.No. 563 of 1984 R.S.A. No. 1039 of 1984 6 the first appellate Court reversed the finding of the trial Court and held that the compromise required registration and hence, was inadmissible in evidence. The suit filed by the heirs of Rur Singh was dismissed. Thereafter, Raj Singh and others filed RSA No.1766 of 1974 and the same was allowed by this Court and the suit was decreed vide judgment and decree dated 2.3.1983. Copy of the judgment and decree passed by this Court are on record as Ex.D-1. A perusal of the same reveals that it was held that the compromise entered between the parties did not require registration as nothing was transferred as per the compromise. Defendant Achhari in the said case had only admitted the claim of Rur Singh. As per the compromise, Achhari had stated that Rur Singh was owner of 1/3rd share as claimed by him. Admittedly, the said judgment and decree have become final. In these circumstances, learned first appellate Court held that plaintiff Achhari was mortgager qua the suit property to the extent of 10 kanals 4 marlas of land bearing khasra No13/1 (6- 0) and 12/2 (4-4) bearing Rect. No.14. The said finding was given by the learned first appellate Court after the counsel for the parties had agreed that the said land did not form part of the suit land in the earlier litigation, which was decided by this Court in RSA No.1766 of 1974 Ex.D-1. Plaintiff Achhari could get the land redeemed by paying the entire mortgage amount. The argument raised by learned counsel for defendants No.1 to 4 that the plaintiff could not get the entire land redeemed as her share in the suit land was only to the extent of 10 kanals 4 marla is without any basis as anyone of the co- R.S.A.No. 563 of 1984 R.S.A. No. 1039 of 1984 7 owners could have get the land redeemed on payment of entire mortgage amount. No substantial question of law arises in these regular second appeals, which would warrant interference by this Court. Accordingly, the same are dismissed. (SABINA) JUDGE November 17, 2011 anita