IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3543/1998 (O&M) DATE OF DECISION: 21.7.2008 Ved Parkash and others ....Appellants through Mr. Sudhir Aggarwal, Advocate Versus Smt Shadi .....Respondent through Mr. Anil Kshetarpal, Advocate CORAM: HON'BLE MR. JUSTICE JASWANT SINGH 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? .-.-.-. JASWANT SINGH, J This Regular Second Appeal has been filed by the plaintiffs- appellants challenging the judgment and decree dated 26.10.1998 passed by the learned Additional District Judge, Jagadhari, vide which the judgment and decree dated 5.8.1996 passed by the Civil Judge(Senior Division), Jagadhari, decreeing the suit of the plaintiffs-appellants, was set aside and suit of the plaintiffs-appellants was dismissed. Briefly stated the facts of the case are that claiming themselves to be successors-in-interest of Brij Lal, Ghasitu Mal and Rama Nand, plaintiffs filed a suit for declaration to the effect that they are owners in possession of land measuring 46 kanals 0 marlas bearing Khewat/Khatauni No.4/9 and 10, Khasra No.7//16,17/2,24/2,11/1, 2,3 and 7//25, situated within the revenue estate of Village Koolpur, H.B.No.450, Tehsil Jagadhari, District Yamunanagar. It was alleged by the plaintiffs that predecessor-in-interest of defendant had mortgaged with possession the suit land to the predecessor- in-interest of the plaintiffs, vide revenue officer's order dated 30.3.1878 (Ex.P.29) and mutation No.6 (Ex.P.26 & P.28). The mortgage of the suit RSA No.3543/1998 (O&M) #2# land was made for a consideration of Rs.49.12 Aana. During the settlement and consolidation of holdings, the old khasra numbers were changed into new khasra numbers. The land in dispute was never redeemed by the predecessor-in-interest of defendant within the statutory period of 60 years and thus, they had become owners in cultivating possession through their tenants of the suit land by efflux of time. On notice, defendant-respondent contested the suit on the grounds that the land in dispute was never mortgaged by her predecessor-in- interest and the fact of continuing revenue entries of mortgage is stated to be illegal, unlawful and not binding upon the rights of defendant. It was stated by the defendant-respondent that the land was never mortgaged, whereas she remained in cultivating possession of the land through her tenants and that plaintiffs had got no right, title or interest in the suit land and the revenue entries in the record were also totally wrong and illegal. It was pleaded that even if it is proved that the land was mortgaged by her predecessor-in-interest, it was only a paper transaction and the same was never acted upon as defendant made the payment of said transaction, as it was a loan without intention to mortgage the suit land. Defendant- respondent also took the pleas that the plaintiffs/appellants had no locus standi to file the suit; that the land was never mortgaged and the plaintiffs/appellants had failed to prove the relationship with Ghasitu Mal and Rama Nand. The suit was also barred by limitation and it was prayed that the same be dismissed. On the pleadings of the parties, following issues were framed by the learned trial Court: 1) Whether the plaintiffs are owner in possession of the disputed property as alleged?OPP 2) Whether the plaintiffs have no locus standi to file the present suit? OPD 3) Whether the suit is not maintainable?OPD 4) Whether the plaintiffs are estopped from filing the present suit?OPD 5) Relief. Evidence was led by both the parties and after considering the same and hearing the arguments, learned trial Court decided all the issues in favour of the plaintiffs and against the defendant holding the plaintiffs to be owners and in cultivating possession through their tenants namely Ranjit RSA No.3543/1998 (O&M) #3# Singh etc and further held that they were entitled to get the entries of revenue record corrected in their favour. Aggrieved by the findings recorded by the learned trial Court vide its judgment and decree dated 5.8.1996, appellants filed an appeal under Section 96 CPC. Learned Appellate Court, in view of the established and admitted fact that the suit land was mortgaged with possession and therefore being usufructuary as defined under Section 58(d) of the Transfer Proper Act and no time was prescribed for redeeming the land and settled principle of law that in case of usufructuary mortgage, the mortgagor had the right to get the property redeemed there being no limitation for redeeming the said mortgage, reversed the findings of the learned trial Court on all issues. Learned Appellate Court by relying on judgments reported in Harbans v. Om Parkash, 1998(1) SLJ, 129, Amarjit Kaur and another vs. Jatinder Sharma and Others, 1998(2) SLJ, 946 and Panchanan Sharma v. Basudeo Prasad Jaganani and others, 1995 HRR 575 held that the status of the plaintiffs was only of mortgagee and the defendant was entitled to get the land redeemed on payment of the mortgaged money i.e Rs.49.12 Aana. Accordingly the appeal was allowed with costs vide judgment and decree dated 26.10.1998 and the judgment and decree under challenge was set aside. Thereafter, the present regular second appeal was filed by the plainitiff-appellants and vide order dated 30.11.1998, the same was admitted keeping in view the substantial question of law raised as to whether there is any limitation for redemption of the mortgaged property. Order dated 30.11.1998 passed by this Court reads as under: “The substantial question of law that arises in this case is whether there is no limitation for redemption of the mortgaged property. Admit. Stay of dispossession until further orders.” I have heard learned counsel for the parties. Learned counsel for the plaintiffs-appellants has raised half- hearted arguments that transaction in issue was a case of simple mortgage without possession and therefore the same was not a usufructuary mortgage and hence limitation for redemption is 30 years. On the other hand, learned counsel for the defendant- RSA No.3543/1998 (O&M) #4# respondent has argued that the plaintiffs in para No.1 of the plaint themselves have set up a case that “it was mortgage with possession”. Further it has been proved on record that the plaintiffs had been in cultivating possession through their tenant named Ranjit Singh, who had been paying rent to Lala Phagu Mal plaintiff No.6-appellant No.14 and prior to that through other tenants. Therefore, there is no force in the arguments raised by learned counsel for the plainitiffs-appellants, hence the same is rejected. Faced with the above situation, learned counsel for the parties are agreed that the matter is covered by a recent Full Bench decision of this Court rendered on 12.12.2007 in R.S.A.No.1029 of 1988, titled Ram Kishan and others v. Sheo Ram and others. Keeping in view the fact that the substantial question of law has been categorically answered by Hon'ble Full Bench of this Court, I do not find any ground to interfere with the findings recorded by the learned Appellate Court. Dismissed. July 21, 2008 ( JASWANT SINGH ) manoj JUDGE