RSA No. 4168 of 2006 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 4168 of 2006 (O&M) Date of Decision: 8.10.2009 Buddhi ......Appellant Versus Tek Chand and others .......Respondents CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA. 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Adarsh Jain, Advocate, for the appellant. Shri Suresh Kumar, Advocate, for Shri R.M. Singh, Advocate, for the respondents. HEMANT GUPTA, J. (Oral). Defendant No. 2 is in second appeal aggrieved against the judgment and decree passed by the Courts below, whereby suit for declaration challenging the revenue record in respect of the entries of mortgage and in the alternative for possession, was decreed. It is the case of the plaintiffs that they are owners of the agricultural land measuring 5 kanals, but in the revenue record, the same is recorded under mortgage with the defendants. It is asserted by the plaintiffs that they have tried to find out the details of the mortgage, but have failed to discover the said details. Therefore, the plaintiffs asked the defendants to furnish documentary evidence regarding details RSA No. 4168 of 2006 (O&M) [2] of the alleged mortgage so that the plaintiffs may get the disputed land redeemed on payment of mortgage money. But since no details were disclosed by the defendants, the present suit for declaration and in the alternative for possession was filed. Defendant No. 2 in the written statement has taken up the plea that the suit is barred by limitation and that the land was mortgaged with possession with the defendants more than 50 years back. Since the plaintiffs have failed to redeem the land from the defendants within the period of limitation, the plaintiffs are not entitled to the declaration and/or possession. The learned trial Court returned a finding that the revenue entries showing the mortgagee in possession of the disputed land are null and void and not binding on the rights of the the plaintiffs. It was found that since the land was not under mortgage, therefore, the plaintiff is entitled to declaration. Such finding has been affirmed in appeal as well. The learned first Appellate Court has framed two points for determination i.e., whether the entries in the revenue record showing the appellant and the proforma respondents as mortgagee in possession of the suit land are illegal, null and void? and secondly, whether the suit is barred by limitation?. It was found by the learned first Appellate Court that there was no basis for the entries of the mortgage in the jamabandi, therefore, the entries of the mortgage, are without consideration, illegal, null and void and has no binding effect on the rights of the plaintiffs. It was also found that since there was no specific terms and conditions regarding RSA No. 4168 of 2006 (O&M) [3] the mortgage, therefore, it cannot be said that suit is barred by limitation and consequently, the plaintiffs are entitled to redeem the mortgage property. I have heard learned counsel for the parties but I do not find any merit in the present appeal. Learned counsel for the appellants has vehemently argued that the revenue record for the last 50 years record the defendant- appellants as mortgagees. Therefore, such revenue record for long period carries the presumption of correctness. However, the learned counsel for the appellant could not refer to any particulars of mortgage. It could not be pointed out as to how the entries of mortgage could be incorporated in the revenue record in the first instance. Therefore, the findings recorded by the first Appellate Court that the entries in the revenue record are incorrect, cannot be said to be suffering from any patent illegality or irregularity. In respect of the second question, regarding the period of limitation for redemption of mortgage, suffice it to say that the Full Bench of this Court in Ram Kishan and others v. Sheo Ram and others, 2008(1) PLR page 1, has held that there is no period of limitation for redemption of mortgage in case of usufructuary mortgage. It was held by the Full Bench, to the following effect:- "The limitation of 30 years under Article 61(a) beings to run “when the right to redeem or the possession accrues”. The right to redemption or recover possession accrues to the mortgagor on payment of RSA No. 4168 of 2006 (O&M) [4] sum secured in case of usufructuary mortgage, where rents and profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. The right to seek foreclosure is co-extensive with the right to seek redemption. Since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time the mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. Thus, the period of redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. In view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore always redeemable would be applicable. The argument that after the expiry of period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property is not correct. From the aforesaid discussion, it is apparent that the mortgage cannot be extinguished by any unilateral act of the mortgagee. Since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. It is equally well settled that it is not title of the suit, which determines the nature of the suit. The nature of the suit is required to be determined by reading all the averments in the plaint. RSA No. 4168 of 2006 (O&M) [5] Such declaration cannot be claimed by an usufructuary mortgagee. Thus, we prefer to follow the dictum of law laid down by the larger Bench in Seth Ganga Dhar's case (supra) as well as judgments of Hon'ble Supreme Court in Jayasingh Dnyanu Mhoprekar's case (supra), Pomal Kanji Govindji's case (supra), Panchanan Sharma's case (supra) and Harbans's case (supra) in preference to the judgments relied upon by the mortgagees in Prabhakaran's case (supra) and Sampuran Singh's case (supra). Therefore, we answer the questions framed to hold that in 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. Thus, it is held that once a mortgage always a mortgage and is always redeemable. Consequently, I do not find any patent illegality or material irregularity in the finding recorded or that the finding recorded gives rise to any substantial question of law in the present second appeal. Hence, the present appeal is dismissed. [ HEMANT GUPTA ] JUDGE 8-10-2009 ds