IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4977 of 1999 (O.&M.) Date of Decision: 25.3.2009 Chhote Khan. ....... Appellant through Shri Lokesh Sinhal,Advocate. Versus Fazar Khan and others. ....... Respondents through Shri P.R.Yadav,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 appeal is directed against judgments and decrees dated 22.3.1995 and 24.9.1999 passed respectively by the Additional Senior Sub Judge, Ferozepur Jhirka (hereinafter described as `the trial Court') and the Additional District Judge, Gurgaon (referred to hereinafter as `the First Appellate Court') vide which the suit filed by Chander Khan (since deceased and now represented by respondent nos. 1 to 3 herein) was decreed and the appeal filed by defendant no.1- appellant was dismissed. A suit for declaration was filed by Chander Khan pleading that the appellant and one Sadiq, who was impleaded as defendant no.2 therein (arrayed as respondent no.4 herein ) were owners/ co-sharers of agricultural land measuring 2 bighas 10 biswas situated in the revenue estate of village R.S.A.No.4977 of 1999 -2- .... Mohalaka, Tehsil Ferozepur Jhirka, District Gurgaon, which was fully detailed in paragraph no.1 of the plaint. It was averred that the appellant had mortgaged the aforesaid land with Chander Khan for a consideration of Rs.600/- and delivered its possession to him. Mutation no.240 was stated to have been sanctioned in this regard on 31.8.1952. It was further averred that the appellant had got redeemed land comprised in khasra no.465/291 after paying Rs.300/- and this fact was recorded in mutation no.359 sanctioned on 19.8.1957. However, the land comprised in khasra no.461/267, measuring 1 bigha 10 biswas continued under mortgage with Chander Khan and he was in possession thereof since 31.8.1952. It was claimed that since the mortgage qua this land has not been got redeemed, he had become owner thereof and the revenue record existing in favour of the appellant and respondent no.4 to the contrary is wrong and not binding on him. Upon notice, the appellant and respondent no.4 appeared and filed their written statement resisting the claim of Chander Khan. It was pleaded that material facts have been concealed in the suit. They admitted that the land measuring 2 bighas 10 biswas was mortgaged by them with Chander Khan on 31.8.1952, but pleaded that the mortgage was bifurcated in the year 1953 and was considered to have been redeemed on payment of Rs.300/- and one khasrano.461/287 was again mortgaged for Rs.300/- and it was so acknowledged by the mortgagee himself in the year 1957. It was pleaded that in the year 1985, a sum of Rs.2000/- was further advanced and R.S.A.No.4977 of 1999 -3- .... the charge on the land mortgaged with Chander Khan was increased to 2300/- on 25.12.1985. According to them, a writing to this effect was made and thumb marked by Chander Khan and the same was given to them as a token of acknowledgment so that it could be used at proper time. It was averred that during consolidation, 7 kanals 4 marlas with killa no.2, rectangle no.17 was allotted for the original land and, therefore, the suit was liable to be dismissed on this score alone. It was further averred that the appellant and respondent no.4 were in possession of the suit land for more than a year because Rs.2300/- were paid to Chander Khan and the land was orally redeemed and possession was delivered. It was denied that Chander Khan was in continuous possession of the suit land as mortgagee. The other averments made in the suit were also denied. The parties went to trial on the following issues:- 1.Whether the plaintiff has become owner in possession of suit land, detailed in para No.5 of the plaint?OPP 2. Whether the plaintiff has no right to file the present suit, as alleged in P.O.No.2?OPD 3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction to try the present suit?OPS 4. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 5. Relief. On appraisal of the entire evidence on record, the trial Court R.S.A.No.4977 of 1999 -4- .... concluded that Chander Khan was in possession of land measuring 1 bigha 10 biswas comprised in khasra no.461/287 as a mortgagee with effect from 31.8.1952 and, therefore, he had become absolute owner thereof. The plea of the appellant regarding redemption of the entire mortgage was disbelieved. The suit was accordingly decreed. Feeling aggrieved, the appellant filed an appeal which was dismissed by the First Appellate Court. It held that the appellant and respondent no.4 had set up the document of the year 1985 showing further mortgage for Rs.2000/- of the suit land in favour of Chander Khan, only to defeat his right to become owner thereof as the period of 30 years was coming close. Hence, this Regular Second Appeal by the appellant. On 12.1.2000, the appeal was admitted for hearing by a Division Bench and was ordered to be heard along with R.S.A.No.1611 of 1999. In the meantime, a question relating to the period of limitation that governs the filing of an application or a suit for redemption of a usufructuary mortgage came up for consideration before a Full Bench of this Court in R.S.A.No.1029 of 1988 titled as “Ram Kishan and others Versus Sheo Ram and others. That appeal has since been decided by the Full Bench on 12.12.2007. The questions posed before the said Bench were as under:- 1. Whether the right to seek redemption would arise on the date R.S.A.No.4977 of 1999 -5- .... of mortgage itself in case of usufructuary mortgage when no time limit is fixed to seek redemption? 2. Whether there is any time limit in the case of usufructuary mortgage or to get the property redeemed? After considering the above questions in detail, the Full Bench concluded as follows:- “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?” It is also pertinent to mention here that after the aforementioned decision of the Full Bench, R.S.A.No.1611 of 1999 along with which the instant appeal was ordered to be heard, was listed before a Single Bench which has dismissed the same vide judgment dated 22.10.2008. However, this appeal has now been listed for hearing. On 18.11.2008, the appellant filed C.M.No.11352 of 2008 for disposal of the instant appeal in terms of the order of the Full Bench in R.S.A.No.1029 of 1988. Notice of the same was issued to the respondents. Learned counsel for the parties have been heard. R.S.A.No.4977 of 1999 -6- .... It has been contended by the learned counsel for the appellant that the appeal deserves to be allowed in view of the fact that the question as to the period of limitation for redemption of a usufructuary mortgage has conclusively been decided by the Full Bench in R.S.A.No.1029 of 1988. On the other hand, learned counsel for respondent nos. 1 to 3 contended that even though the questions of law, as aforesaid, have been answered by the Full Bench, yet, it has to be determined from the facts of the instant case as to whether there was any redemption of the suit land or not. I have thoughtfully considered the entire matter and have gone through the record. A perusal of mutation No.240 dated 31.8.1952, Exhibit P6, reveals that mortgage was created by the appellant and Sadiq -respondent no.4 in favour of Chander Khan in respect of the land comprised in khasra nos. 461/287 (1 bigha – 0 bishwa) and 465/291 (1 bigha – 0 bishwa) for a sum of Rs.600/-. It is further evident from mutation no.359 dated 19.8.1957, Exhibit P7, that the appellant got redeemed the agricultural land forming part of khasra no.465/29, measuring 1 bigha – 0 bishwa by paying a sum a sum of Rs.300/-. However, there is no evidence on record to suggest that the land comprised in khasra no. 461/287 had ever been redeemed. The plea of the appellant that he & Sadiq-respondent no.4 had taken a sum of Rs.2000/- in the year 1985 from Chander Khan and created an additional mortgage qua the suit land through a writing which was thumb R.S.A.No.4977 of 1999 -7- .... marked by him, is not believable. This document is unregistered and cannot be taken into consideration. The execution of the same is also doubtful. Therefore, it cannot be relied upon. However, in view of the law laid down by the Full Bench in R.S.A.No.1029 of 1988 and noticed hereinabove, the observation of the First Appellate Court that the appellant had lost the right to redeem the mortgaged land on the ground of limitation is not sustainable. Therefore, the questions of law which arise for determination in this appeal are as under:- 1. 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? 2. Whether the appellant had a right to get redeemed the suit land on payment of mortgage amount? On the basis of the above discussion, the above questions of law are answered accordingly and it is held that the appellant had a right to get redeemed the suit land by making payment of the mortgage amount. Consequently, the application and the appeal is accepted, the impugned judgments & decrees are set aside and the suit of Chander Khan is dismissed. March 25,2009 ( Mahesh Grover ) “SCM” Judge