RSA No.264 of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.264 of 2006 Date of Decision: 27.8.2009 Guretj Singh and others ......Appellants Versus Naranjan 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: Shri K.K. Aggarwal, Senior Advocate, with Shri Kapil Aggarwal, Advocate, for the appellants. Shri Deep Singh, Advocate, for respondent No.1. Shri Sushil Bhardwaj, Advocate, for respondent Nos. 2 to 7. HEMANT GUPTA, J. (Oral). The defendant-mortgagors are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for possession and declaration that the plaintiffs have become owners of the land measuring 24 kanals 6 marlas by efflux of time, was decreed. It is the case of the plaintiffs that one Kaku Singh son of Sant mortgaged 15 bighas 3 biswas of land on 26th Jeth, 1980 B.K. in favour of Kehar Singh son of Geena Singh on receipt of an amount of Rs.372/-. The mortgage was oral. After consolidation of the land measuring 15 bighas 3 biswas was converted into 24 kanals 6 marlas. The plaintiffs are the legal heirs of Kehar Singh-mortgagee, whereas the defendants are the legal heirs RSA No.264 of 2006 [2] of Kaku Singh-mortgagor. It was also pleaded that the Halqa Patwari in connivance with defendant Nos. 1 to 4 got the signatures and thumb impressions of plaintiffs and defendant Nos. 5 to 12 in Rapat Roznamcha No. 375 dated 19.7.2000 on the pretext that he was to make entry that the disputed property has not been got redeemed, but by playing fraud, the mutation was wrongly entered in favour of the defendants. On the basis of such entry, the defendants entered into possession of the property illegally. The learned trial Court decreed the suit, wherein it was found that plaintiffs and defendant Nos. 5 to 12 remained in possession till 19.7.2000 and that only symbolic possession was delivered to the defendants at the time of execution of receipt Exhibit D.2. Exhibit D.1 is the receipt of Rs.362/-. It was further found that the mortgage was for a sum of Rs.372/- whereas receipt is in the sum of Rs.362/-. Therefore, it is a case of partial redemption. The learned trial Court also found that possession of the plaintiffs were continuing since the date of mortgage uptil the date when the plaintiffs were dispossessed under the garb of Exhibits D.1 and D.2. Since the land was not found to be redeemed by the defendants, the suit was decreed. The learned first Appellate Court found that since the land has not been redeemed within a period of 30 years from the date of mortgage, therefore, the plaintiffs have become owners by efflux of time. Thus, they are entitled to possession based on title. The learned first Appellate Court found that the possession of share of the proforma respondents cannot be delivered to the plaintiffs. However, the suit was decreed except the share inherited by proforma-respondents from Jagta son of Kehar Singh in terms of compromise Exhibit CX. RSA No.264 of 2006 [3] I have heard learned counsel for the parties on the following substantial question of law:- “Whether the right to seek redemption can be said to extinguish in case of usufructuary mortgage, after 30 years from the date of mortgage? Before this Court, another compromise dated 24.1.2006 has been entered between defendant Nos. 1 to 4 and plaintiff Nos. 2 to 7. In terms of the said compromise, plaintiff Nos. 2 to 7 have relinquished their claim in respect of their 1/3rd share in favour of the defendant-appellants. The said compromise is on behalf of the minors as well. The interest of minors is represented by their mother Ranjit Kaur. Keeping in view the facts and the dispute, I am of the opinion that such compromise does not affect the rights of minors adversely as the mortgagees cannot claim declaration regarding their title merely on account of failure of the defendants to redeem the land within the period of 30 years in view of the Full Bench judgment in Ram Kishan and others v. Sheo Ram and others, 2008(1) PLR page 1. Therefore, continuation of the litigation would, in fact, mean extra financial burden on the said minors. Therefore, plaintiff Nos. 2 to 7 are permitted to compromise with defendant Nos. 1 to 4 (the present appellants) and the suit permitted to be withdrawn. The appeal is allowed to that extent by way of compromise. Now the only surviving dispute of the appellants is with defendant No.1 -Naranjan Singh, who has 1/3rd share as a mortgagee in the land measuring 24 kanals 6 marlas. Learned counsel for respondent No.1 has argued that the defendants have taken possession from him forcibly and therefore, such possession cannot be recognised in law. Consequently, the plaintiffs were RSA No.264 of 2006 [4] rightly found entitled to possession of the suit property. However, I do not find any merit in the said argument. The appellants are not the trespassers on the land. They are the real owners. It has been held by the Full Bench of this Court in Ram Kishan's case (supra) that mortgagees, who remain in possession for more than 30 years from the date of mortgage are not entitled to declaration regarding their titles over the suit property as owners. Therefore, even if the defendants have failed to redeem the mortgage, the plaintiffs cannot claim declaration of their title over the suit property. The defendants are now admittedly in possession. Therefore, the only claim of defendant No.1 is for claim of security amount, which he can enforce against the mortgagors before the competent Court of law. In view of the said fact, the decree for declaration and possession passed by the Courts below cannot be sustained in law. Consequently, the present appeal is allowed. The judgment and decree passed by the Courts below are set aside and the suit of the plaintiffs is dismissed. (HEMANT GUPTA) JUDGE 27.8.2009 ds