R.S.A.No.928 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.928 of 2009 Date of Decision : 08.09.2009 Raminder Kaur and others ...Appellants Versus Balbir Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: M/s Premjit Kalia and Gurinder Pal Singh, Advocates, for the appellants. HEMANT GUPTA, J. (ORAL) The plaintiffs are in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby the suit for declaration that the plaintiffs are owners of suit land, was dismissed. It is the case of the plaintiffs that the suit land was mortgaged in their favour vide registered mortgage deed dated 23.7.1969, but actual possession was never delivered to the plaintiffs. As per the oral terms agreed between the parties, the mortgagors were to cultivate the suit land and to pay batai equal to interest of mortgage money. The mortgagors neither paid any batai nor paid any interest, nor delivered the possession of the suit property, therefore, the plaintiffs are entitled to possession and declaration of ownership. It has been found that mortgage deed Ex.P-2 shows that the land mortgaged was in possession of the mortgagees. It was found to be usufructuary mortgage. In case of usufructuary mortgage, a Full Bench of this Court in Ram Kishan and others Vs. Sheo Ram and others AIR 2008 Punjab & Haryana 77, has held that a mortgagee is not entitled to R.S.A.No.928 of 2009 2 declaration of ownership over the mortgaged property on account of non- redemption of the mortgage property. But in the present case, as per the case set up by the plaintiffs, the possession was not delivered to the plaintiffs. The batai equivalent to the amount of interest was also not paid to the plaintiffs. Thus, the cause of action, if any, arose to the plaintiffs on the date of execution of the mortgage deed itself. The cause of action was to sue either for possession or for performance of an agreement of mortgage, but the suit for declaration claiming title of the suit property on account of efflux of time has been rightly dismissed by the Courts below. Consequently, I do not find that any substantial question of law arises for consideration of this Court in view of the finding recorded by the Courts below. Dismissed. 08.09.2009 (HEMANT GUPTA) Vimal JUDGE