R.S.A. No. 3122 of 1996 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 3122 of 1996 (O&M) Date of Decision : 19.3.2010 Smt. Subhani (dead) through L.Rs. .......... Appellant Versus Abdul Rahim & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. C.B. Goel, Advocate for the appellant. Mr. Hemant Bassi, Advocate for the respondents. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal by the defendant / appellant is directed against the judgment and decree dated 22.8.1996, passed by the learned Addl. District Judge, Gurgaon, vide which the suit filed by the plaintiff / respondents for declaration to the effect, that the plaintiffs have become owner in possession of the suit land by lapse of time for want of redemption, stands decreed. The case pleaded by the plaintiff / respondents was, that the predecessors-in-interest of the defendant / appellant had mortgaged the agricultural land measuring 36 Kanals 8 Marlas situated at village Madhika, Tehsil Ferozepur Jhirka, District Gurgaon, as fully detailed in para 1 of the plaint, in favour of the predecessors-in-interest of the plaintiff / respondents R.S.A. No. 3122 of 1996 2 about 50 years ago. As the predecessors-in-interest of the defendant / appellant failed to get the property redeemed, as such, the plaintiffs had become owners in possession of the suit land. The suit was contested by the defendant / appellant, by raising preliminary objections of estoppel, mis-joinder and non-joinder of necessary parties. The locus standi of the plaintiffs to file the suit was also challenged. On merits, it was pleaded, that the suit property was redeemed about 20 years back from the plaintiffs, and since then the suit land was in possession of the defendant / appellant. The stand was taken, that due to the relationship between the parties, the mutation in respect of the redemption was not got sanctioned, therefore, the entries in the revenue record were null and void. The other averments on merit were also denied. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether the plaintiff has become owner of the suit land by prescription of time ?OPP 2. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 3. Whether the suit is bad for non-joinder and mis-joinder of necessary parties?OPD 4. Whether the defendant is in possession of the suit land as alleged, if so to what R.S.A. No. 3122 of 1996 3 effect?OPD 5. Whether the suit is not maintainable in the present form?OPD 6. Relief.” On appreciation of evidence, and keeping in view the revenue record, the learned Court recorded a finding, that the plaintiffs have become owners of the suit land by prescription of time, as the property was not redeemed within a period of 30 years. The learned Court also held, that the defendant failed to prove, that she was in possession of the property in dispute. Issues No. 2, 3 & 5 were decided against the defendant for want of evidence and also being not pressed at the time of arguments. In view of findings on issues No. 1 & 4, the suit filed by the plaintiff / respondents was decreed. In appeal, the findings of the learned trial Court were affirmed, and the appeal was also dismissed. The learned counsel appearing on behalf of the appellant contends, that this appeal raises the following substantial question of law :- “Whether in view of the fact, that no limitation is prescribed for redemption of mortgage, the suit for declaration filed by the plaintiff could be decreed?” The learned counsel for the appellant, has also moved an application under Order 41 Rule 27 of the Code of Civil Procedure for R.S.A. No. 3122 of 1996 4 leading additional evidence in this Court. The learned counsel for the appellant, however, did not press the application, and prayed, that the application be dismissed as withdrawn. “Ordered accordingly.” In view of dismissal of the application as withdrawn, the office is directed to return the original receipt, placed on record by the appellant by replacing it with a photo copy for record. In support of the substantial question of law, the learned counsel for the appellant vehemently contended, that even if the averments made in the plaint, are taken on their face value, then also the suit for declaration was not competent, as there is no limitation prescribed for redemption of usufructuary mortgage. There arose no question for the plaintiffs to claim ownership of the property in dispute, merely because of lapse of time in redemption of property in dispute. It is also the contention of the learned counsel for the appellant, that the learned Courts below have misread the evidence to hold, that the property was not got redeemed. In support of this substantial question of law the learned counsel for the appellant placed reliance on the Full Bench judgment of this Court in the case of Ram Kishan and Ors. Vs. Sheo Ram and Ors. 2008(1) RCR (Civil)334, wherein Full Bench of this court 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 would not arise on the date of mortgage but R.S.A. No. 3122 of 1996 5 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.” In view of the authoritative pronouncement of this court in the case of Ram Kishan and Ors. Vs. Sheo Ram and Ors. (supra) the substantial question of law is answered in favour of the appellant. Consequently, this appeal is allowed. The judgment and decree passed by the learned courts below are set aside and the suit filed by the plaintiff/appellants is ordered to be dismissed, but with no order as to costs. 19.3.2010 ( VINOD K. SHARMA ) 'sp' JUDGE