RSA No.1780 of 1984 **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1780 of 1984 Date of Decision:10.05.2011. Amar Singh and others . . .Appellants Vs. Vakeel Singh and others . . . Respondents CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr. S.K.Chopra, Advocate, for the appellants. Ms. Alka Sarin, Advocate, for the respondents. ***** Rakesh Kumar Jain, J. (Oral) The substantial question of law involved in this appeal is as to “whether a mortgager can redeem a usufructuary mortgage at any time or his right can be foreclosed by the mortgagee in possession after expiry of 30 years of mortgage ”? In brief, the plaintiffs filed a suit for declaration that they have become owners in possession of the land measuring 14 Kanals, situated in village Ghookla, by afflux of time, as the right of the defendants to redeem the mortgage stands extinguished. It was alleged that Beli Ram, father of the defendants, had mortgaged some land in village Kheral Kahna, now in Pakistan, with Sagar Singh, predecessor-in-interest of the plaintiffs. After the partition of the country, when Sagar Singh migrated to India, he was allotted some land out of the land left in village Ghookla. It is also alleged that the possession of the said land was delivered to the mortgagee Sagar Singh in the year 1960. Thereafter, the defendants forcibly took possession of the said land from Sagar Singh for which Sagar Singh had to file a Civil Suit for possession against the defendants which was decreed on 24.08.1973 and the appeal filed by the defendants was dismissed on 29.01.1976. The possession was delivered back to the plaintiff of the suit property on 01.11.1979 in execution of the said decree dated 24.08.1973. Thus, it was alleged that since the mortgage created by Beli - 1- RSA No.1780 of 1984 **** Ram in favour of Sagar Singh is more than 60 years’ old, therefore, the right of the defendants to redeem the mortgage stands extinguished by afflux of time. In the written statement, the defendants had admitted the mortgage of the said land by their father Beli Ram with Sagar Singh, predecessor-in-interest of the plaintiffs, in Pakistan and that the suit land was allotted to them in lieu of that mortgaged land. It was also admitted that Sagar Singh had brought a Civil Suit for possession of the suit land which was decreed and possession was re-delivered to the plaintiffs in execution of the said decree. However, they challenged that the mortgage is 60 years old. Their contention was that in their case, the mortgage was created in the year 1945 for a period of 15 years and the limitation for redemption of the mortgage has not expired. When the pleadings were over, the learned Trial Court framed the following issues: - “1. Whether the period of limitation has expired and the plaintiff has become the owner of the suit land?OPP. 2. Whether Sagar Singh had acknowledged the existence of the mortgage and given fresh start to limitation as alleged?OPD. 3. Whether the plaintiffs are entitled to the declaration prayed for?OPP. 4. Relief.” Issues No.1 and 2 were discussed together, out of which issue No.1 was decided against the plaintiffs and issue No.2 against the defendants. While deciding issue No.3, the learned Trial Court had observed that the plaintiffs are not entitled to the declaration as prayed for and, therefore, the suit was dismissed. The plaintiffs then filed appeal, which was allowed on the ground that as per the amendment in the Limitation Act, 1963, the period of 60 years to redeem the mortgage has been reduced to 30 years and as such it was held that since the defendants did not make any effort to seek redemption of the mortgage, therefore, their rights have been foreclosed for ever and the plaintiffs have become owners of the property for which the declaration was granted by the learned First Appellate Court vide its judgment and decree dated 08.02.1984. The present appeal was admitted on 06.08.1984. Learned counsel for the appellants submits that as per the pleadings of the plaintiffs, when the mortgage was created, possession was also delivered, - 2- RSA No.1780 of 1984 **** meaning thereby it was a usufructuary mortgage. Hence, it is submitted that in the case of Ram Kishan and others V. Sheo Ram and others, 2008(1) P.L.R. 1, the Full Bench of this Court has held that in the case of usufructuary mortgage, there is no time limit for seeking redemption. As against this, learned counsel for the respondents has submitted that there is no dispute with the decision of the Full Bench of this Court in Ram Kishan’s and others’ case (supra) wherein it has been held that for the purpose of seeking redemption of a usufructuary mortgage, there is no time limit prescribed, but it is argued that the judgment of the Full Bench is under consideration before the Apex Court and the matter has been referred to the Larger Bench. In rebuttal, learned counsel for the appellants has relied upon a decision of this Court in LPA No.840 of 1996 titled as `Gulzar Singh V. Financial Commissioner & Secretary to Govt. Punjab and others’ decided on 23.02.2010, in which somewhat similar controversy had arisen and it has been observed as under: - “7. It is well settled principle of law that in case of usufructuary mortgage, mortgagee enjoys fruits of the property. He can enjoy the property till the amount is repaid to him. The moment mortgager pays amount to the mortgagee, mortgage stands redeemed. The question as to whether any limitation is prescribed to get the usufructuary mortgage redeemed, was answered by the Full Bench of this Court in Ram Kishan and others Vs. Sheo Ram and others, 2008(1) RCR (Civil) 334. The Full Bench of this Court in Ram Kishan’s case (supra) was of the view that there is no time limit prescribed to get the usufructuary mortgage redeemed. Learned counsel for the appellant vehemently argued that the decision of the Full Bench in Ram Kishan’s case (supra) is under challenge before the Apex Court and the question has not been finally decided by the Apex Court. Undisputedly, judgement of the Full Bench has not been set aside or overruled as yet. Judicial - 3- RSA No.1780 of 1984 **** discipline requires that the Division Bench of this Court should follow the view taken by the Full Bench.” In view of the above, the question of law, which has been framed in the beginning of the judgment, is held to be a substantial question of law in terms of Section 100 of the Code of Civil Procedure, 1908 and consequently it is held that the view taken by the learned First Appellate Court while reversing the judgment and decree of the learned Trial Court is patently illegal and as such the present appeal is allowed, judgment and decree of the learned First Appellate Court is set aside and that of the learned Trial Court is restored. In view of the circumstances of the case, the parties are directed to bear their own costs. (Rakesh Kumar Jain) May 10, 2011. Judge vinod* - 4-