RSA. No.3844 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA. No.3844 of 2010 Date of Decision: 30.09.2010 Mohinder Singh ....…Appellant Versus Joginder Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr.V.K. Jain, Senior Advocate with Mr. Parshant Vashisth, Advocate for the appellant. L. N. MITTAL, J (ORAL) Mohinder Singh-proforma defendant No.10, who is also legal representative of the original plaintiffs has filed the instant second appeal having remained unsuccessful in both the Courts below. Plaintiffs alleged that forefathers of defendant Nos.1 to 5 mortgaged the suit land in favour of forefathers of plaintiffs and proforma defendant Nos.6 to 15 more than 30 years before the filing of the suit and since then, mortgagees are in continuous possession thereof and the mortgage has not been redeemed and, therefore, the mortgagees i.e. plaintiffs and proforma defendant Nos.6 to 15 have become owners in possession of the suit land. Defendants No.1 to 3 denied the plaint allegations. They denied the factum of mortgage. They also denied that plaintiffs and proforma defendant Nos.6 to 15 are in possession of the suit land. It was alleged that defendant Nos.1 to 5 are owners in possession of the suit land. The plaintiffs are not even residing in village Kalia RSA. No.3844 of 2010 2 where the suit land is situated. The plaintiffs also failed to produce the mortgage deed despite being summoned by defendants No.1 to 3. Various other pleas were also raised. Defendant Nos.6 to 9 while admitting the factum of mortgage controverted the claim of the plaintiffs. It was alleged that plaintiffs have no right, title or interest in the suit land. Learned Additional Civil Judge (Senior Division), Sunam vide judgment and decree dated 16.03.2006 dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs has also been dismissed by learned Additional District Judge, Sangrur vide judgment and decree dated 22.02.2010. Feeling aggrieved, the instant second appeal has been preferred. I have heard learned Senior counsel for the appellant and perused the case file. Learned Senior Counsel for the appellant vehemently contended that lower appellate Court, although final Court of fact has not discussed the evidence led by the plaintiffs and, therefore, judgment of the lower appellate Court suffers from legal infirmity. I have carefully considered the aforesaid contention. It is correct that the lower appellate Court could and should have written a better judgment. Nevertheless, the judgment of the lower appellate Court is not liable to be set aside in the facts and circumstances of the instant case. It may be added that the trial Court has analyzed and discussed the evidence in detail in proper perspective. The lower appellate Court discussed the evidence in brief. The plaintiffs alleged that predecessors of defendant Nos.1 to 5 had mortgaged the land with predecessors of plaintiffs and proforma defendant RSA. No.3844 of 2010 3 Nos.6 to 15. However, no details of the said mortgage were given, although the mortgage was allegedly effected though a mortgage deed. Even date of the mortgage deed or the mortgage money was not mentioned in the plaint. Even details of the land originally mortgaged were not given in the plaint. Defendant Nos.1 to 3 moved application for production of mortgage deed. The plaintiffs made statement that they would produce the mortgage deed at the time of evidence. However, there was no reason for not producing the mortgage deed with the plaint or at least when the same was summoned by defendant Nos.1 to 3 because it was essential for defendant Nos.1 to 3 to peruse the same before setting up their defence. However, the plaintiffs did not produce the mortgage deed even when summoned by defendant Nos.1 to 3 nor the plaintiffs produced the same even in their evidence, although plaintiffs had stated that they would produce the same at the time of evidence. The land originally mortgaged through the mortgage deed has not been linked with the suit land. The mortgage was allegedly created before partition of the country for land situated in the area which is now in Pakistan. The said land has not been linked with the suit land. Mutation of mortgage was produced, but there is also mutation of redemption of the mortgage. Whole reliance of the plaintiffs is on entries in jamabandis regarding mortgage. However, presumption attaching to entries in jamabandis stands rebutted by the mutation of redemption of mortgage. The land mentioned in earlier jamabandis particularly jamabandi for 1959-60 being under mortgage has also not been linked with the suit land mentioned in RSA. No.3844 of 2010 4 jamabandi for 1992-93. On the other hand, it may at best be said that some land might have been mortgaged and the same was redeemed, but it cannot be said that the suit land was mortgaged. In view of Full Bench judgment of this Court in the case of Ram Kishan and others versus Sheo Ram and others, 2008-1 PLR 1, also the appellant could not succeed. It has been laid down in the said judgment that right of redemption of usufructuary mortgage is not extinguished by efflux of time and mortgagee does not become owner of the mortgaged land by efflux of time. The whole claim of the plaintiffs was based on the plea that plaintiffs and proforma defendant Nos.6 to 15 being mortgagees have become owners of the suit land as the mortgage was not redeemed within limitation period of 30 years. However, this stand of the plaintiffs cannot be accepted in view of authoritative pronouncement by Full Bench of this Court in the case of Ram Kishan (supra). For the reasons aforesaid, I find no merit in the instant second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 30.09.2010. A. Kaundal