IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 652 of 1997 Date of decision : 17-03-2008 Harbhajan Singh .....Appellant Naranjan Singh (deceased) and others .....Respondents R.S.A. No.841 of 2003 Mr. Bhajan Singh ......Appellant Mr. Pritam Singh and others ......Respondents CORAM : HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present : Mr. S.K. Jain, Advocate for the appellant. Mr. F.S. Virk, Advocate for the respondents. RAKESH KUMAR JAIN, J. This order shall dispose of two R.S.As bearing No.652 of 1997 and R.S.A. No.841 of 2003 which was ordered to be heard with R.S.A. No.652 of 1997 vide order dated 07-03-2003 passed in R.S.A. No.841 of 2003. In brief, I will first narrate the facts of R.S.A. No.652 of 1997. Naranjan Singh filed a suit for declaration to the effect that he is in R.S.A. No. 652 of 1997 R.S.A. No.841 of 2003 -2- possession of land measuring 01K-8 ½ M out of land measuring 02K-17M described in Khewat No.49 Khatauni no.66, Rect. no.23 Kila No.22/3, situated at village Ladhran, Tehsil Samrala as a mortgagee and be declared as owner since the limitation of 30 years to redeem the mortgage has expired. He claimed in the plaint that Baldev singh, predecessor-in- interest of defendants No.1 to 3 was the owner of 02K-17M of land which was mortgaged to the extent of 1/2 share each to plaintiff Naranjan Singh and to Bakhtawar Singh on 14-07-1945 with possession. Since, the land was mortgaged prior to the consolidation, therefore, in the Jamabandi for the year 1946-47, it was recorded as Kila No.53, Khewat No.41, Khatauni No.92 (1B-0B-17B). After the consolidation that Khasra nos. has been converted to Khasra no.53 as described in Khewat No.53, Khatauni No.70 as per Jamabandi for the year 1974-75. It was also claimed in the plaint that defendant No.1 had filed an application for redemption in the Court of Collector, Samrala in respect of the mortgaged land which was dismissed on 09-10-1986 in which it was clearly mentioned that the mortgage is 30 years old and the time for redemption has elapsed. In the written statement, defendant No.1 claimed that the land has already been redeemed by him and that defendant No.2 who is lunatic, suit against him was not maintainable as it has not been filed through his near relation or next friend. The plaintiff filed replication and reiterated the ground taken in the plaint. On the basis of the pleadings of the parties, the trial Court framed the following issues on 29-04-1989 :- (1)Whether the suit-property was mortgaged by Baldev Singh half to plaintiff and half to Bakhtawar Singh R.S.A. No. 652 of 1997 R.S.A. No.841 of 2003 -3- deceased on 14-07-1945 and since that time the plaintiff is in possession of the same ? OPP (2)Whether the suit-property was allotted in lieu of the earlier mortgaged property during consolidation operation ?OPP (3)Whether defendants No.1 to 3 are the legal heirs of Baldev Singh ? OPP (4)Whether the plaintiff has become the owner of the suit property by way of its non-redemption within the prescribed period of limitation by the mortgagor? OPP (5)If issue No.4 is proved whether the plaintiff is entitled to the declaration prayed for ? OPP (6)Whether the suit is not maintainable in the present form? OPD. (7)Whether this Court has no jurisdiction to try this suit?OPD (8)Whether the suit is time barred?OPD (9)Whether the name of defendant No.2 has been wrongly mentioned as Bhajanpal Singh instead of Harbhajan Singh? If so, its effect?OPD (10)Whether the defendant No.1 has succeed to the estated of Lachhman Kaur on the basis of Will dated 12.10.1983?OPD. (11)Whether the suit is not maintainable in the present form as defendant No.2 is a lunatic?OPD (12)Whether the defendants are entitled to the special costs to the tune of Rs.2,000/- under Section 35-A CPC?OPD (13)Relief. Parties to the suit led both oral as well as documentary evidence. Since, the factum of mortgage was not denied by the defendant, the only crucial issue which was left to be decided was as to whether the plaintiff had become owner of the suit property to the extent of half share R.S.A. No. 652 of 1997 R.S.A. No.841 of 2003 -4- due to non-redemption of the mortgage. The trial Court, vide its judgment dated 11-04-1990, decreed the suit of the plaintiff and held that since the period of limitation for redemption is 30 years and that has been expired, therefore, the plaintiff has become the owner of half share land measuring 02K-17M. Aggrieved against the judgment and decree of the trial Court, the defendant No.1 filed the First Appeal before the lower appellate Court which, too, was dismissed on the ground that limitation to redeem the mortgage had expired and, therefore by efflux of time, the plaintiff had become the owner of the mortgaged property. The defendant No.1 is now before this Court in the Second Appeal. Now, I refer to the facts of R.S.A. No.841 of 2003. This suit has been filed by son and daughter of Bakhtawar Singh, seeking a decree for declaration to the effect that they have become the owners of 0K-19M of land out of 2K-17M comprising in Khewat No.61 Khatauni No.69, Rectangle No.23 and Killa no.22/3 min situated in the revenue estate of Village Ladhran, District Ludhiana on the ground that Baldev Singh predecessor-in-interest of defendants No.1 to 3 had mortgaged suit property to predecessor-in-interest of the plaintiff and also to Naranjan Singh to the extent of half share each. Naranjan Singh had already filed a suit for declaration that he has become the owner of the mortgage property by an efflux of time as the same has not been got redeemed by the defendant, the successor-in-interest of Baldev Singh within a period of limitation and that suit has been decided in favour of Naranjan Singh on 11-04-1990 by the Court of Sub Judge Ist Class, Samrala. Therefore, he may also be given similar declaration as he is in the possession of other half share of the mortgaged property as a mortgagee. R.S.A. No. 652 of 1997 R.S.A. No.841 of 2003 -5- In this suit, defendant No.1 filed the written statement and inter-alia pleaded that the suit property has been redeemed. The plaintiff s filed replication. On the basis of the pleadings of the parties, the trial Court framed the following issues :- i) Whether the mortgage in favour of the plaintiffs stood redeemed vide receipts dated 1.5.86 to 29.6.86? OPD ii) Whether Ajit Pal Singh defendants No.2, is insane and suit cannot proceed against him?OPP iii)Whether the suit is barred by principle of resjudicata?OPD iv)Whether the suit has been properly stamped for the purpose of court fee and jurisdiction?OPP v) Whether the plaintiff is in possession of the disputed property?OPP vi)Whether the suit is barred under order 2 rule 2 CPC? OPD vii)Relief. In this suit, plaintiff Pritam Singh appeared as PW-1, whereas, defendant appeared as DW1 and closed their evidence. The trial Court granted the decree to the plaintiff on the ground that the suit land has not been redeemed within the period of limitation and also on the basis of decree dated 11-04-1990 passed in Civil Suit no.450 of 1986 titled as Niranjan Singh vs. Bhajan Singh and others etc. Defendant no.1, Bhajan Singh filed First Appeal which, too, was dismissed on 21-12-2002 which led to the filing of present Regular Second Appeal. At the time of admission of the R.S.A. No.841 of 2003 on 07-03-2003, this Court had passed the following order : “ I have gone through the file of the case bearing R.S.A. No. 652 of 1997. This appeal is against the R.S.A. No. 652 of 1997 R.S.A. No.841 of 2003 -6- judgment and decree dated 09-09-1996, passed by the learned Additional District Judge, Ludhiana, copy of which was produced on the record of the present case as Exhibit P3. The learned Additional District Judge, while dismissing the present appeal, had placed reliance on the aforesaid judgment and decree dated 11.04.1990, copy Exhibit P3, passed by the then Additional District Judge, Ludhiana, against which the aforesaid RSA No.652 of 1997 is pending. After hearing counsel for the appellant and perusing the record, in my opinion, following substantial question of law arise for determination in this Appeal : 1. Whether there is any period of limitation prescribed for redeeming the usufructuray mortgagees? 2. Whether the judgment, copy Ex.P3, passed by the Additional District Judge, in the earlier case, could be made the basis for deciding the present Appeal by the Additional District Judge, considering that RSA 652 of 1997 is pending in this Court against the aforesaid judgment and decree of the Additional District Judge, copy Ex.P3? The Appeal is admitted. To be heard with RSA 652 of 1997.” The parties are directed to maintain status quo regarding possession, as it exists today, till further orders.” While submitting in both the aforesaid appeals on behalf of the appellants, Shri S.K. Jain, Advocate has vehemently argued on question of law No.i framed in aforesaid R.S.A. No.841 of 2003 and submitted that the said question of law is involved in both the aforesaid appeals and has already answered by a Full Bench of this Court in the case of Ram Kishan and others vs. Sheo Ram and others reported as (2008-1) Punjab Law R.S.A. No. 652 of 1997 R.S.A. No.841 of 2003 -7- Reporter, 1 and submitted that in a case of Usufructuray 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 pay or tender to the mortgagee or deposits in Court the mortgage money or the balance thereof. He has also submitted that Hon'ble Full Bench, while answering the aforesaid question posed herein held that once a mortgage always a mortgage and is always redeemable. This Court had pointedly asked the learned counsel for the respondent as to whether any time was fixed to seek redemption. Learned counsel for respondent stated at the bar that no time limit was fixed to seek redemption. I have heard learned counsel for both the parties and have perused the record and I am of the view that the question of law that has been framed here-in-above in R.S.A. No. 841 of 2003 which is arising also in R.S.A. No.652 of 1997 that in a case of usufructray mortgage, where no time limit is fixed for redemption, the property can be redeemed at any time as the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pay or tender to the mortgagee or deposits in Court the mortgage money or the balance thereof, therefore, the mortgagee will not acquire the ownership rights by efflux of time but shall remain mortgagee on the principle that once a mortgage always a mortgage and is always redeemable. Since, the basic question involved in this appeal was question No.(i) which has been answered in both the cases, therefore, both the appeals deserves to be allowed. In view of the discussions above, both the R.S.A. No. 652 of 1997 R.S.A. No.841 of 2003 -8- appeals i.e. R.S.A. No.652 of 1997 and R.S.A. No.841 of 2003, are hereby allowed. Judgment and decree of both the Courts below in both the appeals are hereby set aside with costs. (RAKESH KUMAR JAIN) Judge 17-03-2008 gurpreet R.S.A. No. 652 of 1997 Date of decision : -03-2008 Harbhajan Singh .....Appellant Naranjan Singh (deceased) and others .....Respondents R.S.A. No.841 of 2003 Mr. Bhajan Singh ......Appellant Mr. Pritam Singh and others ......Respondents