RSA No.4314 of 2002 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 4314 of 2002 (O&M) Date of decision: 21.01.2011 Naresh Kumar and others .....Appellants Versus Narain and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.A.L.Jain, Advocate, for the appellants Mr.Lokesh Sinhal,Advocate for the respondents **** SABINA, J. Plaintiffs had filed a suit for declaration that they be declared owner in actual physical possession of the suit land by efflux of prescribed period of thirty years of redemption. The case of the plaintiffs in brief was that the predecessors in interest of defendants No. 1 to 6 had mortgaged with possession the suit property with the predecessors in interest of the plaintiffs and proforma defendants 7 to 27. The plaintiffs and proforma defendants were in actual physical cultivating possession of the suit land without RSA No.4314 of 2002 (O&M) 2 any interruption. The defendants had made no effort to get the suit land redeemed within 30 years. Hence, the plaintiffs had become owners by efflux of prescribed period of thirty years of redemption. Defendants No. 1 to 6 in their written statements denied the factum of mortgage by their predecessors in interest. It was averred that the plaintiffs or predecessors in interest had never cultivated suit land. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs and defendants No. 7 to 27 have acquired ownership rights in the suit land detailed in para No.1 of the plaint by way of prescription?OPP 2. Whether the suit is not maintainable?OPD 3. Whether the plaintiffs have no cause of action to file the suit?OPD 4.Whether the plaintiffs are estopped by their act and conduct from filing the suit?OPD 5.Whether the suit is bad for mis-joinder and non joinder of necessary parties?OPD 7. Relief” The suit filed by the plaintiffs was decreed by the trial Court vide judgment and decree dated 21.12.2001. Aggrieved by the same, defendants No. 1 to 6 preferred an appeal and the same was allowed by the Additional District Judge, Faridabad vide judgment and decree dated 10.10.2002 and, consequently, the suit filed by the plaintiffs was dismissed. Hence, the present appeal by the plaintiffs. Learned counsel for the appellants has submitted as per the RSA No.4314 of 2002 (O&M) 3 entries in the jamabandi, plaintiffs and proforma defendants were described to be in possession of the suit land as mortgagees. Hence, the suit filed by the plaintiffs had been rightly decreed by the trial Court. Learned counsel for the respondents, on the other hand, has submitted that the land in dispute had never been mortgaged with the predecessors in interest of the plaintiffs. Plaintiffs had failed to prove the mortgage deed on record. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. As per the jamabandi placed on record, the predecessors in interest of the plaintiffs are described to be in possession of the suit property as mortgagee. A presumption of truth is attached to the entries in the jamabandi. Thus, the entries in the jamabandi can be relied upon to establish the factum of mortgage but the plaintiffs were required to establish the terms of the mortgage. The entries in the jamabandi do not depict the terms of the mortgage entered between the parties. It has been held in Nand Singh vs. Sewa Singh and others AIR 1959 Punjab 609:- “If an instrument requiring registration is not registered according to law other evidence in proof of the terms of a transaction is inadmissible. The effect of the combined operation of the provisions of Sec. 49 of the Registration Act and Sec. 91 of the Evidence Act is that if a document is not receivable as evidence of a particular matter for want of registration, other proof of the matter, oral or otherwise will be excluded by Sec.91 of the Evidence Act provided the RSA No.4314 of 2002 (O&M) 4 transaction embodied is a contract, grant or disposition of property and the proof tendered to the terms of the transaction. But if the evidence sought to be given does not related to the terms of a transaction but relates merely to the factum or existence of a transaction, other evidence will be properly receivable not being excluded by Sec.91 of the Evidence Act. Consequently in case of an unregistered mortgage the factum of the mortgage can be proved by independent evidence other than the writing which was unregistered and which purported to create a mortgage. The jamabandi entries which have not been rebutted by any evidence can be admitted to establish the fact of the mortgage (Paras 7 and 9) .” The Full Bench of this Court in Ram Kishan and others vs. Sheo Ram and others 2008(1)RCR(Civil)334 has held as under:- “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 the plaintiffs had failed to establish the terms of the mortgage deed, in view of the decision of the Full Bench (supra), the suit of the plaintiffs was liable to fail. The plaintiffs have failed to establish the period within which the mortgage was to be got RSA No.4314 of 2002 (O&M) 5 redeemed. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge January 21, 2011 arya