RSA No.1557 of 1985 -1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1557 of 1985 Date of Decision: 30.1.2008 Tara Singh (deceased) now represented through his LRs (Raj Kaur and others. ..Appellants. Vs. Amrik Singh and others ..Respondents. CORAM : HON'BLE MR.JUSTICE RAKESH KUMAR JAIN * * * Present: Mr.Kanwaljit Singh, Advocate for the appellants. None for the respondents. * * * Rakesh Kumar Jain, J. The defendants are in second appeal. The plaintiffs, who are mortgagees of the land in dispute with possession, filed a suit for declaration claiming ownership on the ground that the land has not been redeemed by the defendants for more than 30 years, therefore, their right of redemption has been extinguished by efflux of time. Brief facts of the case are that Amar Singh son of Ram Singh, who was the owner of land measuring 76 kanals 2 marlas situated at Chak No.91 Tobba Tek Singh District Lyalpur now in Pakistan, mortgaged two parcels of land measuring 15 kanal 5 marlas with possession to his brother Kishan Singh for a consideration of Rs.800/- vide registered mortgage deed dated 11.10.1945 and land measuring 60 kanal 17 marlas with possession RSA No.1557 of 1985 -2 - for a consideration of Rs.6300/- vide registered mortgage deed dated 10.4.1946. In the year 1947, at the time of partition of the country, both Amar Singh and Kishan Singh migrated to India. They were allotted land in Punjab State measuring 11 B - 15 B – 5 B comprising in Khasra Nos.458 min, 459, 459/1, 1651 min, 263 min, 264, 222/259, 256,266 situated in village Kuliewal, Tehsil and District Ludhiana in lieu of the land which was under mortgage at Chak No.91, District Lyalpur and the possession was given to Kishan Singh mortgagee. Consolidation of holding took place in village Kuliewal and new Khasra Numbers 277, 278, 12/3, 4/1,4/2, 25/22, 73/18/2, 9/17, 18/1, 2,3/2, 24, 25/21 of land measuring 52 kanals 3 marlas were entered in the jamabandi for the year 1976-77, which was under mortgage with Kishan Singh. Amar Singh, mortgagor died leaving behind two sons Niranjan Singh and Harnek Singh. Both of them have also died. Defendants No.1 to 3 are son, daughter and widow of Harnek Singh and defendants No.4 to 6 are son, daughter and widow of Niranjan Singh. Defendants inherited the land which was under mortgage with possession on the basis of mortgage deed, therefore, they are the mortgagors. Kishan Singh had died leaving behind two sons Amrik singh and Kehar Singh. Kehar Singh also died leaving behind plaintiffs Piara Singh and Shingara Singh and his widow Smt.Dhan Kaur. Plaintiff Dhan Kaur had also died. Plaintiff No.1 is the mortgagee with possession of ½ share of the land in dispute whereas plaintiffs No.2 and 3 are the mortgagees with possession of remaining ½ share of the land in dispute. The plaintiffs filed the present suit for declaration on 21.4.1981 claiming declaration of ownership on the ground that since 30 years have RSA No.1557 of 1985 -3 - elapsed from the date of mortgage whereas the land has not been redeemed by the mortgagor, therefore, their right of redemption has become time barred and the plaintiffs have become the owners by efflux of time. The suit was contested by the defendants, who filed separate written statements. Defendants No.1 to 3 and 5 in their joint written statement admitted the mortgage and relationship. They, however, submitted that the mortgaged amount has already been paid to the plaintiffs in respect of their share in land situated in village Kutbewal Gujaran and it stood redeemed. They also submited that they do not oppose the decreeing of the suit. Defendants No.4 and 6 in their joint written statement, raised preliminary objection that the suit does not lie in the present form and defendants No.1 to 3 have no connection with the mortgaged land. It was also submitted by them that Kabul Singh son of Avtar Kaur daughter of Amar Singh, is a necessary party. Further, Amar Singh had two brothers Hardit Singh and Chanan Singh sons of Ram Singh, who have died whereas Jaswant Singh son of Hardit Singh is alive. Chanan Singh and his son Inder Singh have also died and out of their sons Teja Singh, Jaswant Singh and Rattan Singh, Jaswant Singh and Rattan Singh are alive, who being co- sharers in the joint Khata are necessary parties. It was also submitted that the suit is barred by principles of res judicata as a similar suit was dismissed on the same cause of action. On merits, it was admitted that Amar Singh was owner of the land but it was denied that he had mortgaged the land with possession to his brother Kishan Singh on 10.4.1946. It was submitted that Amar Singh and Kishan Singh migrated to India but denied that they were allotted land in the State of Punjab in lieu of land in Pakistan. Death of RSA No.1557 of 1985 -4 - Amar Singh was admitted and it was submitted that he had two sons Niranjan Singh and Harnek Singh and one daughter Avtar Kaur, all of whom have died but Kabul Singh son of Avtar Kaur is alive. They denied the relationship of defendants No.1 to 3 but it was stated that they are the son, daughter and widow of Niranjan Singh, since deceased. They denied that Kishan Singh was given possession of land allotted to him in lieu of land left in Pakistan. In the replication, the plaintiffs reiterated their assertions made in the plaint and controverted those made in the written statement. On the pleadings of the parties, following issues were framed: - “1. Whether Sh.Amar Singh deceased had mortgaged his land measuring 76 kanals 2 marlas situated in Chak No.91 Toba Tek Singh in District Lyalpur to his brother Kishan Singh vide two registered mortgaged deeds as alleged in para No.1 of the plaint? If so, on what terms and conditions ? OPP. 2. Whether Amar Singh, deceased was allotted the land described in para No.2 of the plaint in lieu of the land left by him in Toba Tek Singh and the suit land was allotted to him on consolidation of holdings in lieu of the land originally allotted? If so, its effect? OPP. 3. Whether the plaintiffs as the heirs of Kishan Singh deceased had become fully owner in possession of the suit land on the failure of the mortgagees to redeem the sale within the prescribed period? 4. Whether the present suit is bad on account of the non joinder of the necessary parties as described in preliminary objection No.3 of the written statement filed by defendants No.4 and 6 if so, its effect ? OPD. 5. Whether the present suit is barred by the principle of res judicata on account of the judgment in the previous suit as alleged in paragraph No.4 of the preliminary objection raised by defendants No.4 and 6? OPD 4 and 6. 6. Whether the suit in the present form is not maintainable? OPD 4 and 6. 7. Relief. RSA No.1557 of 1985 -5 - Both the parties led oral as well as documentary evidence. The trial Court vide its judgment and decree dated 20.9.1982 decreed the suit by returning findings on all the issues in favour of the plaintiffs. The present appellants filed the first appeal before the Addl.District Judge, Ludhiana along with an application under Order 41 Rule 27 CPC to lead additional evidence to prove the agreement entered into between Niranjan Singh s/o Amar Singh and Harpal Singh s/o Harnek Singh s/o Amar Singh in order to show that period of limitation was extended by this agreement as the mortgaged amount due to Kishan Singh was adjusted by the mortgagees and it was agreed in the agreement of sale that the mortgaged land would stand redeemed and that the original agreement is in possession of Piara Singh and Shingara Singh sons of Kehar Singh s/o Kishan Singh and the defendant was minor at the time of filing of suit and could not produce the document, which was not available with him. Vide its judgment and decree dated 23.11.1984, the Additional District Judge dismissed the application moved under Order 41 Rule 27 CPC on the ground that it does not satisfy the requirement of Order 41 Rule 27 CPC and therefore, this plea cannot be allowed to be taken. The main appeal was also dismissed by the first Appellate Court vide its judgment and decree dated 23.11.1984. Counsel for the appellants has submitted that following substantial questions of law are involved in the present appeal namely : (i)Whether a mortgage with possession has any limitation and mortgagor has right to redeem the property at any time? (ii)Whether in the case of usufruct mortgage there is any clog RSA No.1557 of 1985 -6 - on redemption? Counsel for the appellants proceeded on the premises that the land was mortgaged with the plaintiffs and is still in their possession. However, in view of a recent pronouncement of the Full Bench of this Court in the case of Ram Kishan and others Vs. Sheo Ram and others 2008 (1) RCR (Civil) 334, they have a right to redeem at any time because in the 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. It was further held that once a mortgage is always a mortgage and is always redeemable. In my view, the aforesaid judgment has completely decided the question of law raised by the appellants in their favour. The mortgagor has a right to redeem his land and there is no question of extinguishing of his right on expiry of 30 years. Resultantly, the present appeal is allowed and the judgment and decree of both the Courts below are set aside with costs throughout. (Rakesh Kumar Jain) 30.1.2008 Judge Meenu