IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.422 of 1983 Date of Decision: 19.5.2009 Surjit Singh and others. ....... Appellants through Shri Avnish Mittal,Advocate. Versus Raju and others. ....... Respondents through Shri O.P.Nagpal,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 judgments and decrees dated 12.2.1981 and 12.11.1982 passed respectively by the Subordinate Judge Ist Class, Bassi Pathanan (hereinafter described as `the trial Court') and the Additional District Judge, Patiala (referred to hereinafter as `the First Appellate Court') whereby the suit of the plaintiffs- respondent nos. 1 to 9 was decreed and the appeal of the defendant nos. 4 to 10/ the appellants was dismissed. It appears that originally the suit was filed by Ajudhia Nath, the predecessor-in-interest of respondent nos. 1 to 9, against the appellants and respondent nos. 10 to 12 for declaration to the effect that he was R.S.A. No.422 of 1983 -2- .... complete owner in possession of the land measuring 107 kanals 11 marlas situated in Village Chhaleri Khurd as detailed in head note of the plaint (called hereinafter as `the suit property'). After his death, respondent nos.1 to 9 came on record as plaintiffs. According to the case set up in the plaint by respondent nos. 1 to 9, one Sohan Singh son of Sukhdial Singh, predecessor-in-interest of respondent nos. 10 to 12, was owner of land measuring 41 kanals 11 marlas situated in village Chak Bhoda, tehsil Daska, District Sialkot (now in Pakistan); that he had mortgaged the same with Bhagwan Dass, father of Ajudhia Nath, their predecessor-in-interest, prior to the year 1901 for a sum of Rs.5000/-; that possession of that land was also delivered to Bhagwan Dass; that Sohan Singh died in the year 1944; that his estate including the aforesaid land was inherited by Gopal Singh, Kartar Singh, Darshan Singh and Shangara Singh, his sons, in equal shares; that after the partition of the country, these four brothers were allotted the suit property in lieu of the land left by Sohan Singh in Pakistan; that since Bhagwan Dass was the mortgagee, he was given the possession of the suit property; that after the death of Bhagwan Dass, Ajudhia Nath came into possession of the suit property; that respondent no.10 is the daughter of Gopal Singh, whereas respondent nos. 11 & 12 are the aforesaid Kartar Singh and Darshan Singh; that respondent no.11 sold his 1/3rd share of the suit property to Bhagwan Singh, appellant no.4, whereas respondent no.12 sold his 1/3rd share to Satwan Singh and Gurbant Singh, appellant nos. 5 & 6; that on that account, they had been impleaded as defendants in the suit; that time for R.S.A. No.422 of 1983 -3- .... redeeming the mortgage had expired; that the original mortgagor and his successors-in-interest ceased to have any subsisting interest after the expiry of the period of limitation of redemption. On the basis of the above averments, it was prayed that respondent nos. 1 to 9 be declared that they had become full owners of the suit property by virtue of the provisions of Section 27 of the Limitation Act. Upon notice, the appellants put in appearance and filed their written statement controverting the averments made in the plaint. It was pleaded that the suit was not within limitation; that respondent nos. 1 to 9 were not competent to file the same in the present form; that alleged mortgage by Sohan Singh with Bhagwan Dass was executed after the year 1901 and that they were bona fide purchasers of the suit land for consideration. The parties went to trial on the following issues:- 1. Whether the plaintiffs have become the owner of the suit property by virtue of the provisions of Section 27 of the Limitation Act?OPP 2. Whether the plaintiffs are entitled to the declaration prayed for?OPP 3. Whether the plaintiffs are competent to file suit in the present form?OPP 4. Whether the alleged mortgage by Sohan Singh with father of Ajudhia Nath, namely, Bhagwan Dass executed before 1901 and if so, to what effect?OPD R.S.A. No.422 of 1983 -4- .... 5. Whether the vendees are bona fide purchasers for consideration?OPD 6. Whether the suit is within limitation?OPP 7. Relief. After appraisal of the entire evidence, the trial Court concluded that the mortgage was executed by Sohan Singh in favour of Bhagwan Dass prior to 1901 and the same has not been got redeemed so far. Accordingly, the suit was decreed for possession of the suit property in favour of respondent nos. 1 to 9. In appeal preferred by the appellants, the findings recorded by the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. On 19.5.2004, the matter was listed for disposal and during the course of hearing, it was pointed out that the question whether there is any limitation for redemption of usufructuary mortgage has been referred to a Division Bench in R.S.A.No.1611 of 1999 and a similar question is involved in the instant appeal. In view of this, the appeal was directed to be put up after the decision of the aforesaid R.S.A. It is evident from the record that R.S.A.No.1611 of 1999 has been disposed of on 22.10.2008 by a learned Single Judge in view of the judgment of Full Bench in R.S.A.No.1029 of 1988 – Ram Kishan and others Versus Sheo Ram and others, decided on 12.12.2007, reported as 2008(1) R.C.R. (Civil) (P&H) (FB) 334. This is how the instant appeal has been listed for hearing. R.S.A. No.422 of 1983 -5- .... Learned counsel for the appellants contended that the findings recorded by the Courts below are erroneous and deserve to be set aside. He further contended that the appellants were bona fide purchasers of the suit property and respondent nos. 1 to 9 could not have been declared as owners of the suit property after efflux of the period of limitation for redemption of the mortgage. On the other hand, learned counsel for respondents contended that the judgments and decrees of the Courts are perfectly in order and do not require any interference. I have thoughtfully considered the rival contentions and have gone the impugned judgments, as also the judgment of the Full Bench in Ram Kishan's case (supra). The questions of law that arises for determination in this appeal are as under:- 1. Whether the findings recorded by the Courts below are perverse and are liable to be set aside? 2. Whether the mortgage in the instant case is a usufructuary mortgage and is redeemable even today and the rights of the mortgagor have not extinguished by efflux of time? A reading of the impugned judgments reveals that the mortgage in this case was oral made prior to 1901 and no time limit was fixed for its redemption. Kartar Singh, son of original mortgagor – Sohan Singh, appeared as PW5 and admitted the factum of mortgage of the suit property with the predecessor-in-interest of respondent nos. 1 to 9. The revenue R.S.A. No.422 of 1983 -6- .... record placed on the file also establishes this fact. Once the mortgage has not prescribed any time limit, then the observations of the Full Bench made in the case of Ram Kishan and others (supra) are straight-away attracted to the present case. The relevant portion of that judgment (paragraphs 30, 31, 32 and 42) is reproduced below:- “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 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 R.S.A. No.422 of 1983 -7- .... 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 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 R.S.A. No.422 of 1983 -8- .... 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. 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 R.S.A. No.422 of 1983 -9- .... 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.” Since I am of considered opinion that the above extracted observations of the Full Bench covers the controversy in the case in hand, therefore, the mortgage could be redeemed at any time being usufructuary mortgage. One additional point which is to be noticed is that respondent no.1 to 9 had merely filed a suit for declaration without seeking possession of the suit property and merely pleaded that the possession is already with them, which fact has been denied by the appellants as they have averred that the suit property was purchased by them and the possession thereof was delivered to them. The finding of possession was also determined in favour of the appellants. Moreover, there is nothing on record to show that R.S.A. No.422 of 1983 -10- .... respondent nos. 1 to 9 are in possession of the suit property. It is a settled proposition of law that mere suit for declaration without consequential relief of possession is not maintainable in view of the provisions of Section 34 of the Specific Relief Act, 1963. That Section reads as under:- “Direction of Court as to declaration of status or right – Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” Their Lordships of the Supreme Court in Mehar Chand Das Versus Lal Babu Siddique and others, 2007(2) R.C.R. (Civil) 628, while further relying upon an earlier judgment in Vinay Krishna Versus Keshav Chandra and another, AIR 1993 S.C. 957, held that “if the plaintiff had been in possession, then the suit for mere declaration would be maintainable; the legal corollary whereof would be that if the plaintiff is not in possession, the suit for mere declaration would not be maintainable.” For this reason,the suit of respondent nos. 1 to 9 could be decreed only qua the declaration which they had sought and the relief of possession could not have been granted to them as the suit was for mere R.S.A. No.422 of 1983 -11- .... declaration. In any eventuality, some of the appellants, who are bona fide purchasers of the shares of the sons of the original mortgagor, and who have stepped into their shoes, acquired the cloak of a mortgagor and, therefore, they have the right to redeem the mortgage. Accordingly, this appeal is accepted, the impugned judgments and decrees are set aside and the suit of respondent nos. 1 to 9 is dismissed. As a consequence, the successors-in-interest of the original mortgagor of the suit property and appellant nos. 4 to 6, who are the bona fide purchasers thereof, and have stepped in the shoes of the mortgagor, shall be entitled to redeem the mortgage on payment of the mortgage money. May 19,2009 ( Mahesh Grover ) “SCM” Judge