R.S.A. No. 3578 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3578 of 2008 Date of decision : 3.2.2011 Ram Singh and others ......Appellants Versus Pale Ram and others .......Respondents ***** CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Ankur Malik, Advocate, for the appellants. Mr. S.S. Ghangas, Advocate, for the respondents. **** SABINA, J. Plaintiffs had filed a suit for declaration that they had become owners in possession of the land in dispute. The case of the plaintiffs, in brief, was that Harnand grand father of defendant No.1 was owner in possession, as a co-sharer, of the suit property. Harnand had orally mortgaged the same with possession in favour of Ram Nath grand father of the plaintiffs in the year 1910. After the death of Harnand suit property was inherited by his sons Kalu and Baru. After the death of Kalu his share was inherited by his widow and after the death of R.S.A. No. 3578 of 2008 2 the widow of Kalu, Baru became owner and mortgager of the suit property. After the death of Ram Nath, his rights were inherited by his son Dharma, father of the plaintiffs. Baru had died about 10 years prior to the filing of the suit and his rights were inherited by defendants. After the death of Dharma, plaintiffs acquired his mortgagee rights on 19.2.2000. By afflux of time plaintiffs had become owner in possession of the suit property as the suit land had not been got redeemed. Defendant No.1 was proceeded exparte as he had failed to appear despite service. Defendant No.2, in her written statement, admitted that Harnand was owner in possession of the suit land. However, the factum of mortgage of the suit land by Harnand in favour of Ram Nath was denied. It was denied that the plaintiffs were in cultivating possession of the suit land. Defendants No.3 to 7, in their written statement, also took up similar plea as those taken by defendant No.2. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs have become owners in possession of the suit property ? OPP. 2. Whether the suit is bad for want of necessary court fees ? OPD. 3. Whether the suit is bad for non-joinder of necessary parties ? OPD. 4. Relief.” Vide judgment and decree dated 6.9.2007, trial Court dismissed R.S.A. No. 3578 of 2008 3 the suit of the plaintiffs. The said judgment and decree were upheld in appeal, filed by the plaintiffs, by Additional District Judge, Fast Track Court, Panipat vide judgment and decree dated 24.3.2008. Hence, the present appeal by the plaintiffs. After hearing the learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. Plaintiffs had failed to prove their case as they had failed to establish on record any mortgage deed. In order to substantiate their case that the plaintiffs had become owner of the suit land by afflux of time, they were liable to prove on record the terms and conditions of the alleged mortgage. Plaintiffs were required to establish as to whether any time limit had been fixed qua redemption of the mortgaged land. However, the plaintiffs had failed to lead any evidence in this regard. The Full Bench of this Court in Ram Kishan and others vs. Sheo Ram and others, 2008 (1) RCR (Civil) 334 has held as under :- “42. 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 wold 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.” R.S.A. No. 3578 of 2008 4 Since the plaintiffs had failed to establish the terms of the mortgage, in view of the decision of the Full Bench (supra), the suit of the plaintiffs was liable to fail. The plaintiffs had failed to establish the period within which the mortgage was to be got redeemed. In these circumstances, the Courts below had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE February 3, 2011 Anand