REGULAR SECOND APPEAL No.4344 OF 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA NO.4344 OF 2008 DATE OF DECISION: JANUARY 28, 2011 Rajbir Singh & Others .... Appellants Versus Niranjan Singh & Others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. B. S. Jaswal, Advocate for the appellants. * * * * L.N. MITTAL, J. (ORAL) This is second appeal by legal representatives of original plaintiff Bhagail Singh (since deceased), after remaining partly unsuccessful in both the courts below. Plaintiff Bhagail Singh alleged that Bhagat Singh who was owner of the suit land mortgaged it with possession in favour of Teja Singh. In family settlement, the suit property came to plaintiff's grand father Banta Singh from Teja Singh. Mutation No.10 in this regard was entered on19.02.1941 and sanctioned on 19.06.1941. On death of Bhagat Singh, his estate has been inherited by the plaintiff as plaintiff's father Karnail Singh predeceased his father Banta Singh. Accordingly, plaintiff continued in possession of the suit property and is still in possession thereof. Defendants are legal representatives of original mortgagor Bhagat Singh since deceased. The mortgage was never redeemed. Limitation period for redemption of mortgage has expired. Accordingly, plaintiff has become owner of the suit land. However, defendants threatened to interfere in plaintiff's possession over the suit land. Accordingly, the plaintiff sought declaration that he has REGULAR SECOND APPEAL No.4344 OF 2008 -2- become owner of the suit land measuring 4 Kanals 8 Marlas by lapse of time as mortgage thereof was never redeemed by the defendants. Plaintiff also sought permanent injunction restraining the defendants from interfering in possession of the plaintiff over the suit land and from dispossessing him therefrom forcibly and illegally except in due course of law and also from alienating the suit property in any manner. Defendants were proceeded ex parte in the trial court. Learned Additional Civil Judge (Senior Division), Ajnala vide judgment and decree dated 12.08.2005 partly decreed the plaintiff's suit for permanent injunction restraining the defendants from interfering in possession of the plaintiff over the suit land forcibly and illegally, otherwise then in due course of law. However, relief of declaration sought by the plaintiff has been declined. First appeal preferred by the plaintiff has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 18.09.2008. Feeling aggrieved, legal representatives of the plaintiff have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Even taking the plaint averments at face value, the plaintiff- appellant cannot succeed. It is the plaintiff's case that suit land was mortgaged by Bhagat Singh in favour of Teja Singh. Plaintiff's further case is that in family settlement, the suit property came to the share of Banta Singh from Teja Singh. However, if Teja Singh was mortgagee of the suit land, the mortgagee rights could not be transferred to Banta Singh by family settlement. The said mortgagee rights could not said to be ancestral or Joint Hindu Family property or coparcenary property of Teja Singh sole mortgagee and of plaintiffs' grand REGULAR SECOND APPEAL No.4344 OF 2008 -3- father Banta Singh. Consequently, transfer of mortgagee rights by Teja Singh to Banta Singh could not be made by way of family settlement. There is also no cogent evidence to prove the alleged family settlement. There is also no document depicting creation of mortgage. No mortgage deed has been produced in evidence nor any mutation regarding mortgage has been produced in evidence. There is also no cogent evidence regarding terms and conditions of the alleged mortgage. There are only revenue entries that plaintiff's grand father was mortgagee in possession. However, on the basis of the said entries, the appellants cannot succeed when there is no evidence regarding creation of mortgage. In addition to the aforesaid, Full Bench of this Court in the case of Ram Kishan and others versus Sheo Ram and others, PLR Vol.CXLIX (2008-1), has laid down that there is no limitation period for redemption of usufructuary mortgage. According to version of the plaintiff, it was usufructuary mortgage being mortgage with possession. Consequently, mortgagee could not become owner of the suit land by efflux of time in view of judgment in the case of Ram Kishan (Supra). For this reason also, the plaintiff could not succeed and has been rightly non suited regarding declaratory relief. For the reasons aforesaid, I find no merit in the instant second appeal. There is no perversity or illegality in the judgments of the courts below. No question of law, much less substantial question of law, arises for determination in this second appeal. The appeal is accordingly dismissed in limine. (L. N. MITTAL) JUDGE 28th January, 2011 'raj'