IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 378 of 2008 Reserved on : 31.3.2010 Decided on : 15.07.2010 Shri Parkash Chand and others ..…Appellants. Versus Shri Amar Singh and another …..Respondents. Coram Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting? Yes. For the appellants : Mr. Bhuvnesh Sharma and Mr. Ramakant Sharma, Advocates. For respondent No.1 : Mr. D.R. Sood, Advocate, vice Mr. K. D. Sood, Advocate. V.K. Sharma, Judge. This appeal at the instance of the defendants is against the concurrent findings of facts returned by the learned Presiding Officer/Addl. District Judge, Fast Track Court, Hamirpur, H.P., in Civil Appeal No. 129 of 2000/RBT.139/04, titled Parkash Chand and others versus Shri Amar Singh, affirming the judgment and decree dated 20.6.2000, passed by the learned Sub Judge 1st Class (I), Hamirpur, H.P., in Civil Suit No. 4 of 1995, titled Shri Amar Singh versus Smt. Giano Devi and others, whereby the suit for joint possession by way of redemption of mortgage filed by the respondent herein, Shri Amar Singh, as plaintiff against the appellants herein Shri Parkash Chand and ________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 others, being the defendants, was decreed by the learned trial Court and the findings to this effect have been affirmed by the learned first appellate court. 2. Brief facts of the case can be stated thus. 3. The suit for joint possession by way of redemption was filed by the plaintiff against the defendants with regard to his 28/218th share to the extent of 1 kanal 8 marlas in the land comprised of Khata No. 10, Khatauni No. 10, Khasra Nos. 244/168, 169/1, 181, 182, 183, 204, 252/229, 253/230, 256/231 and 239, plots 10, measuring 10 kanal 18 marlas, as per jamabandi for the year 1991-92, of village Kairan, Mouza Nauhangi, Tehsil Nadaun, District Hamirpur, H.P., which shall hereinafter be referred to as ‘the suit land’, on the following averments. 4. According to the plaintiff the aforesaid land of Khata No. 10 measuring 10 kanal 18 marlas of which the suit land measuring 1 kanal 8 marlas is a part, is recorded in the ownership of the plaintiff and S/Shri Roshan Lal, Mehar Singh, Kehar Singh, Raghbir Singh, Ranjit Singh and Purshotam Singh. It is further averred that this land represents 436/846 shares out of the land comprised in Khata No. 6, Khatauni No.6, plots 70, measuring 21 kanal 3 marlas, as per jamabandi for the year 1965-66, of the above revenue estate, out of which the defendants got possession of 5 kanal 9 marlas being 218/846 shares by redemption being their own share and of another 5 kanal 9 marlas, i.e 218/846 shares on behalf of the plaintiff and S/Shri Roshan Lal, Mehar Chand, Kehar Singh, Raghbir Singh, Ranjit Singh and 3 Purshotam Singh, by subrogation on payment of Rs. 40/-, vide judgments dated 30.4.1980 and 19.5.1980, passed by the learned Senior Sub Judge, Hamirpur, in Civil Suit Nos. 415/70, 179/77 and 89/78, titled as Husnak v. Bhagwan Singh and others. 5. It was further averred that Shri Roshan Lal son of Shri Prithi Singh and S/Shri Mehar Chand, Kehar Singh alias Kehar Chand, Raghbir Singh, Ranjit Singh and Purshotam Singh, sons of late Shri Jagat Ram, have already redeemed the land of their share, which was subrogated with the defendants, vide judgment and decree dated 24.2.1986, passed by the learned Sub Judge 1st Class (II), Hamirpur, in Civil Suit No. 92 of 1983, titled as Roshan Lal V. Parkash Chand etc. However, an area of 1 kanal 8 marlas, i.e the suit land belonging to the plaintiff is still under mortgage by subrogation with the defendants vide judgment and decree dated 4.10.1994, passed by the learned Sub Judge 1st Class (II), Hamirpur, in Civil Suit No. 273 of 1989, titled as Parkash Chand etc. v. Amar Singh etc. 6. The further case of the plaintiff was that he requested the defendants time and again to let him redeem the suit land on receiving a sum of Rs. 5.70, but they did not agree, compelling him to file the suit. Since there was no dispute with other co-owners, namely Shri Roshan Lal etc. mentioned in para 3 of the plaint, they were not joined as parties to the suit. 7. The suit was contested by defendants No. 1 to 3 and 7, who filed a joint written statement by raising preliminary objections with regard to limitation and maintainability. On merits it was admitted that the share of the plaintiff remained subrogated with the defendants since 19.5.1980. According to the replying defendants they have become 4 owners of the suit land by lapse of limitation as the plaintiff has not got the same redeemed within 12 years from the date of subrogation. The plaintiff cannot take any advantage of the judgment and decree dated 4.10.1994, as the same was with regard to the correction of the share of the plaintiff which was already under subrogation with the answering defendants since 19.5.1980. The question of receiving the mortgage money/amount did not arise at all after the lapse of satisfactory period. The suit is bad for non-joinder of other co-owners who are necessary parties. 8. The plaintiff filed replication to the above written statement refuting the stand on behalf of the contesting defendants and reiterating the averments set up in the plaint. 9. On the above pleadings, the parties went to trial on the following issues:- 1. Whether the plaintiff is entitled to the joint possession by way of redemption of mortgage of the suit land as alleged? OPP. 2. Whether the suit is within limitation as alleged? OP. Parties. 3. Whether the suit is not maintainable as alleged? OPD. 4. Relief. 10. On conclusion of the trial the suit was decreed by the learned trial court holding issues No. 1 and 2 in affirmative and issue No.3 in negative. 11. Being aggrieved, the defendants carried the matter in appeal to the District Court, but without success. 12. Now the defendants are before this Court by way of the present Regular Second Appeal. 5 13. The appeal was admitted on the following substantial questions of law:- 1. Whether the suit land subrogated on 19.5.1980 could not be redeemed beyond 12 years and as such, the impugned judgment and decree is violative of mandatory provisions of law and is unsustainable? 2. Whether the Ld. Courts below have wrongly decreed the suit ignoring the fact that the suit is barred by limitation its having been filed beyond the period of redemption of mortgage under subrogation and is contrary to law? 14. I have heard the learned counsel for the parties and perused the record. 15. Both the substantial questions of law as above being interconnected requiring common appreciation of facts and law, are being taken up together for discussion and decision. 16. The controversy between the parties lies within a narrow compass. Except with regard to the period of limitation, there is no disagreement between them on other aspects of the case, such as creation of the mortgage by the joint owners, redemption of the same by some of them and subrogation of the shares of the non-redeeming co-mortgagors in favour of the redeeming co-mortgagers. 17. Admittedly, the share of the plaintiff along with some other co- owners was subrogated in favour of the defendants on 19.5.1980. Thus, according to the defendants, the suit ought to have been filed within 12 years, i.e upto 18.5.1992 and the same having been filed only in the year 1994, was clearly barred by time. 18. The learned trial Court while repelling the contention on behalf of the defendants held as under vide paras 10 to 12 of the judgment, dated 20.6.2000:- 6 “10. The plaintiff is entitled to the joint possession by way of redemption of mortgage of the suit land which was subrogated with the defendants as the cause of action remains alive to the plaintiff right from the year 1980 to 1994 when finally the controversy qua redemption of mortgage was set at rest between the mortgagor and mortgagee of the suit land. 11. The counsel for the defendants has pleaded and argued that the plaintiff has failed to file the suit within the period of limitation when the subrogation has taken place in the year 1980, thereby the defendants have become owners of the suit land by afflux of time and the suit of the plaintiff is barred by limitation. The counsel for the plaintiff has argued and pleaded that the cause of action remains alive to the plaintiff right from the year 1980 till 1994 when finally the status of the parties and the suit land has been adjudicated and moreover the mortgage can be redeemed within period of limitation either from the date of mortgage or when the subrogation has taken place whichever is in favour of mortgagor. 12. Therefore, in these peculiar facts and circumstances when the subrogation is admitted by the defendants and the redemption of the mortgage has been sought by the plaintiff within period of limitation from the date of final adjudication by the Court qua the extent and nature of mortgage between the parties. Therefore, the plaintiff is entitled for joint possession by way of redemption of mortgage to the suit land to the extent of his share. Hence, both these issues are held in favour of the plaintiff and against the defendants.” 19. The learned first appellate court also held the suit to be within time by relying upon the judgment rendered by the Hon’ble Supreme Court reported as Harbans versus Om Parkash and others, AIR 2006 Supreme Court 686, by adopting the following reasoning vide para 12 of the impugned judgment, dated 17.05.2008:- “12. The learned counsel for the defendants has vehemently argued that the period of redemption of mortgage under subrogation is 12 years and since the plaintiff has failed to 7 redeem his share under subrogation within 12 years, therefore, the suit is barred by limitation. In this connection, the learned counsel for the defendants has referred to the judgment reported in AIR 1967 Punjab 270 and AIR 1979 S.C. 337. It was held in both these judgments that in a suit to recover his proportionate share by a co-mortgager from any co-mortgager, the period of limitation would be 12 years. However, the controversy regarding limitation for redemption of mortgage has been finally set at rest by the Hon’ble Supreme Court in case Harbans Lal versus Om Parkash and others as reported in AIR 2006 SC 686. In this case, it has been held by the Hon’ble Supreme Court that no limitation applies to right of mortgager to redeem the property and property can be redeemed at any time. It was held that once a mortgage is always a mortgage and therefore, always redeemable. This is, however, subject to any period fixed for redemption for mortgage. In the present case also, the share of the plaintiff has been only mortgaged and there is no evidence on record to show that any period was fixed for redemption of mortgage. Therefore, the limitation of 12 years as claimed by the defendants, does not apply to the present case and in the light of the judgment of the Hon’ble Supreme Court supra, the plaintiff is at liberty to redeem his share in the property at any time and no limitation applies in his case for redemption of mortgage. In view of this, the trial Court has rightly appreciated the evidence on record in its right perspective and correctly decreed the suit of the plaintiff. The judgment and decree of the trial Court do not warrant any interference from this Court. The point at hand is accordingly decided in the affirmative.” 20. On consideration of the provisions of Section 60 of the Transfer of Property Act, the Hon’ble Supreme Court has held as under in Valliama Champaka Pillai v. Sivathanu pillai and others, AIR 1979 SUPREME COURT 1937, vide para 34 of the judgment:- “34. Since subrogation of the redeeming co-mortgagor would give him the right under the original mortgage to hold the non-redeeming co-mortgagor’s property as security to get himself 8 reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property by a non-redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt may be filed either within the limitation prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co- mortgagor against the other co-mortgagor.” 21. Though it is not discernible from the record as to when the original mortgage was created, yet in view of the above authoritative pronouncement of law by the Hon’ble Apex Court in the case of Harbans versus Om Prakash and others supra that in the absence of evidence to show that mortgage was for a fixed period, no limitation applies to right of mortgagor to redeem and property can be redeemed at any time and that “once a mortgage always a mortgage”, I have no hesitation to conclude that principles of law of limitation have been correctly applied by both the courts below. 22. The substantial questions of law for determination as above are answered accordingly. 23. The outcome of the above discussion is that the appeal fails and is accordingly dismissed leaving the parties to bear their own costs. (V.K. Sharma) Judge. 15th July, 2010. (lsp)