R.S.A.No.4482 of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.4482 of 2001 Date of Decision : 24.08.2009 State of Haryana ...Appellant Versus Mohmood Khan 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: Mr. Kulvir Narwal, Addl. AG, Haryana, for the appellant. Ms. Bhupinder Kaur, Advocate, for respondent Nos.1, 2, 3, 6 and 7. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for declaration that the plaintiffs have become owner of the suit land by efflux of time was decreed. The plaintiffs claimed themselves to be in possession as fourth mortgagees, of the agricultural land measuring 25 Kanals and 17 Marlas. The plaintiffs claimed that since mortgage has not been redeemed for more than 100 years, therefore, the right of redemption stands extinguished. The learned trial Court dismissed the suit holding that in terms of Section 9 of the Evacuee Interest (Separation) Act, 1951, the R.S.A.No.4482 of 2001 2 mortgagee's right stands extinguished. Therefore, the plaintiffs are not entitled to the declaration sought for. The learned first Appellate Court reversed the findings and held that the suit land was never declared as evacuee property, therefore, there is no question regarding vesting of the same in the Custodian Department and that the plaintiffs have acquired ownership right in the suit land. After hearing the learned counsel for the parties, I am of the opinion that the following substantial questions of law would arise for consideration of this Court : (i)Whether the plaintiffs are entitled to declaration that the plaintiffs are owners of suit land by efflux of time on account of failure to redeem land within a period of 30 years from the date of mortgage? (ii)Whether any declaration by an competent officer is necessary for extinguishment of rights of mortgagor under Section 9(2) of the Evacuee Interest (Separation) Act, 1951? The findings recorded that the plaintiffs have acquired ownership rights on account of non-redemption of the mortgage land for more than 30 years runs counter to the Full Bench judgment in Ram Kishan and others Vs. Sheo Ram and others AIR 2008 Punjab & Haryana 77, wherein it has been held that there is no period of redemption of the usufructuary mortgage as the doctrine once a mortgage always a mortgage is applicable. In view of the Full Bench decision, a usufructuary mortgagee cannot claim declaration that he has acquired ownership rights. First question of law is, thus, answered in favour of the R.S.A.No.4482 of 2001 3 defendant-appellant. Section 9 of the Evacuee Interest (Separation) Act, 1951, reads as under : "9. Certain relief in respect of mortgaged property of evacuees. - (1) Notwithstanding anything to the contrary in any law or contract or any decree or order of a civil court or other authority, where the claim is made by a mortgagee, no mortgaged property of an evacuee shall, subject to the provisions of sub-section (2), be liable for the payment of interest at a rate exceeding five per cent per annum simple on the principal money advanced or deemed to have been advanced. (2) Where a mortgagee has taken possession on any terms whatsoever of any agricultural land and is entitled to receive profits accruing from the land and to appropriate the same, every such mortgage shall be deemed to have been extinguished on the expirty of the period mentioned in the mortgage deed or twenty years, whichever is less, from the date of the execution of the mortgage deed; and if the aforesaid period has not expired and the mortgage debt has not been extinguished, the competent officer shall determine the mortgage debt due having regard to the proprotion which the unexpired portion of that period bears to the total of that period." In terms of Section 9 (2) of the Evacuee Interest (Separation) Act, 1951, the declaration by a competent officer is not necessary. What is required by the competent officer is to determine the mortgage debt if the period of mortgage has not expired in having regard to the proportion which the unexpired portion of that period bears to the total of that period. By the said provision, the mortgage in respect of a evacuee R.S.A.No.4482 of 2001 4 property stands extinguished by operation of law. Therefore, the plaintiffs could not claim declaration of their title in the suit property, which is an evacuee property. Consequently, the present appeal is allowed. The judgment and decree passed by the learned first Appellate Court is set aside and the suit dismissed. 24.08.2009 (HEMANT GUPTA) Vimal JUDGE