IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2020 of 2006 Date of Decision : March 24, 2008 Imrat and others ....Appellants Versus Zile Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. J.P Dhull, Advocate for the appellants. T.P.S. MANN, J. The plaintiffs filed a suit seeking a declaration that they had become owners in possession of the suit land as a period of more than 60 years had passed since the suit land had been morgaged by the predecessors-in- interest of the defendants with the predecessors-in-interest of the plaintiffs and the same had not been got redeemed by filing a suit for possession, by way of redemption or otherwise by paying the mortgage amount. The right of the defendants to sue for redemption had also been extinguished and the plaintiffs and their predecessors-in-interest had become owners of the suit land by way of prescription. The defendants opposed the claim of the plaintiffs. They denied that the plaintiffs were in possession of the suit land as mortgagees. They even denied that the plaintiffs had become the owners of the suit land by way of Regular Second Appeal No. 2020 of 2006 --2-- prescription or that the right of the defendants for redemption of the suit land had extinguished. After the framing of various issues, the defendants filed a counter-claim for the redemption of the suit property on the ground that the suit land had been mortgaged with possession by way of usufructuary mortgage with the predecessors-in-interest of the plaintiffs by their predecessors and since then the plaintiffs/their predecessors-in-interest had been in actual physical possession of the suit land and appropriating the usufruct of the suit land, the defendants were therefore, entitled for the redemption of the mortgage. The counter claim of the defendants was opposed by the plaintiffs by pleading that since the time of usufructuary mortgage, the plaintiffs/their predecessors-in-interest had been in actual physical possession of the suit land but the usufruct of the suit land in question was to be taken in lieu of the interest so long mortgagees were in possession of the mortgaged land. The suit of the plaintiffs for declaration that they had become the owners of the suit land by way of prescription was dismissed with costs by learned Additional Civil Judge (Senior Division), Kaithal on 8.10.2002. However, the counter-claim of the defendants for redemption of the suit land on payment of the mortgage money was decreed with costs. The plaintiffs filed an appeal but the same was dismissed by learned District Judge, Kaithal on 31.10.2005. Hence, the present second appeal by them under Section 100 of the Civil Procedure Code. The only submission made by learned counsel for the appellants is that suit land was mortgaged with the predecessors-in-interest of the Regular Second Appeal No. 2020 of 2006 --3-- plaintiffs more than 60 years back and therefore, the plaintiffs had become owners of the suit land, more so when defendants or their predecessors-in- interest had not got the suit land redeemed by filing a suit for possession, by way of redemption or otherwise by paying the mortgage amount. As a result thereto the right of the defendants to sue for redemption had extinguished on the one hand and on the other, the plaintiffs/their predecessors-in-interest had become owners of the suit land by way of prescription. The law is well established that there is no limitation for redemption of usufructuary mortgage. As such, a mortgagor never loses his title to the property or right to redemption by lapse of time. It is the admitted case of the plaintiffs that the predecessors-in- interest of the defendants had entered into a usufructuary mortgage with the predecessors-in-interest of the plaintiffs. The possession of the suit land was handed over to the predecessors-in-interest of the plaintiffs. The produce/ usufruct of the land in question was also being utilised by the plaintiffs and their predecessors-in-interest. In paras 5 and 6 of the written statement filed to the counter-claim, the plaintiffs have admitted that the produce/usufruct of the land in question to be taken in lieu of interest belonged to the mortgagees, who were in possession of the mortgaged land. Further that there was no question of rendering the accounts to the mortgagors/defendants since the income/ usufruct was to be taken and was indeed taken/appropriated in lieu of the interest which the mortgagors were liable to, the mortgage admittedly, being usufructuary, i.e. with possession. No other point has been urged by learned counsel for the appellants. Regular Second Appeal No. 2020 of 2006 --4-- The concurrent findings arrived at by the learned lower Courts in denying the claim of the plaintiffs and granting that of the defendants by way of their counter-claim are based on proper appreciation of evidence. The substantial questions of law, as formulated by learned counsel for the appellants, do not arise for consideration. The appeal is devoid of any merit and is, therefore, dismissed. ( T.P.S. MANN ) March 24, 2008 JUDGE satish Whether to be referred to the Reporters : YES / NO