RSA No.150 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.150 of 2008 Date of Decision: 21.07.2010 Gurmej Singh and others .……Appellants Versus Joginder Singh and others ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. S.S. Dinarpur, Advocate for the appellants. Mr. Anil Ksheterpal, Advocate for respondent Nos.10 and 11. Mr. Rahul Vats, Advocate for respondent Nos.1 to 9. L. N. MITTAL, J (ORAL) This is second appeal by legal representatives of original plaintiff since deceased, after having remained unsuccessful in both the Courts below. Plaintiff-Bachan Singh was real brother of defendant No.3 Balwant Singh (respondent No.10) whereas defendant No.4 Gurdip Singh (respondent No.11) is son of defendant No.3/respondent No.10. Plaintiff's case is that plaintiff's father Nikku Singh had mortgaged the suit land with Amar Singh father of defendant Nos.1 & 2 (defendant No.2 since deceased and is represented by respondent Nos.2 to 9 as his legal representatives) for Rs.1200/- on 20.06.1945. The plaintiff and his father continued to cultivate the suit land by paying Chakota to mortgagee Amar Singh till 20.01.1962, when the plaintiff by paying the mortgage money of Rs.1200/- to mortgagee Amar Singh, purchased the mortgagee rights from him and thus the RSA No.150 of 2008 -2- plaintiff became mortgagee of the suit land. However, the mortgage was not redeemed by defendant Nos.3 and 4, who also did not contribute to the payment of mortgage money to Amar Singh mortgagee. The plaintiff, therefore, claimed that on account of expiry of limitation period for redemption of mortgage, plaintiff has become owner of the suit land. Defendant Nos.3 and 4 had taken forcible possession of the suit land except land of khasra Nos.189-190. The plaintiff, therefore, sought declaration that he has become owner of the suit land by efflux of time. The plaintiff also sought possession of the suit land except land of khasra Nos.189-190. Defendant No.1 was proceeded ex parte in the trial Court. Legal representatives of defendant No.2 admitted the plaintiff's claim. Defendant Nos.3 and 4 contested the suit and inter alia pleaded that the alleged mortgage in favour of Amar Singh was a paper transaction and alleged purchase of mortgagee rights by plaintiff from Amar Singh is result of fraud. Plaintiff never remained in possession of the suit land as mortgagee nor defendant Nos.3 and 4 and plaintiff's father Nikku Singh ever cultivated the suit land as mortgagors. They rather remained in possession of the suit land as owners. Actual possession of the suit land was never delivered to Amar Singh. Plaint allegations were denied. Learned Additional Civil Judge (Senior Division), Kurukshetra vide judgment and decree dated 07.06.2006 dismissed the plaintiff's suit. First appeal preferred by legal representatives of the plaintiff has been dismissed by learned Additional District Judge, Kurukshetra vide judgment and decree dated 29.08.2007. Feeling RSA No.150 of 2008 -3- aggrieved, legal representatives of the plaintiff have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. The claim of the petitioner that he has become owner of the suit land by efflux of time as the mortgage was never redeemed, cannot be accepted in view of Full Bench Judgment of this Court in the case of Ram Kishan and others versus Sheo Ram and others reported as 2008 (1) RCR (Civil) 334 laying down that there is no limitation period for redemption of usufructuary mortgage. Faced with the aforesaid situation, learned counsel for the appellants vehemently contended that the original plaintiff purchased the mortgagee rights vide writing dated 20.01.1962 on the back of mortgage deed by paying mortgage money of Rs.1200/- to the mortgagee Amar Singh and, therefore, plaintiff's right as mortgagee of the suit land should be upheld by this Court. This contention also cannot be accepted. Perusal of writing dated 20.01.1962 reveals that mortgage in question in favour of Amar Singh was redeemed on payment of mortgage money of Rs.1200/- to him by the plaintiff- Bachan Singh. This writing would depict that the mortgage was redeemed in favour of the mortgagor and the mortgagee rights were not purchased by the plaintiff. Of course, according to this writing, mortgage money was paid by the plaintiff to the mortgagee. However, a bare perusal of the writing would reveal that the said mortgage money was paid by the plaintiff on behalf of his father Nikku Singh mortgagor for redemption of mortgage. This writing does not at all depict that the plaintiff purchased the mortgagee RSA No.150 of 2008 -4- rights. If plaintiff's father i.e mortgagor sent the plaintiff to pay the mortgage money to the mortgagee, it would only mean that the mortgage was redeemed in favour of the mortgagor. It would not depict that mortgagee rights were purchased by the plaintiff. If it had been so, there would have been recital to this effect, but the very basis of the plaintiff's claim i.e writing dated 20.01.1962 falsifies the plaintiff's claim of being purchaser of mortgagee rights. On the other hand, the said writing is regarding redemption of the mortgage made in favour of mortgagor and not regarding purchase of mortgagee rights by a third person i.e plaintiff. Consequently, even on the basis of the aforesaid writing, the plaintiff cannot be held to be purchaser of mortgagee rights. It may be added that according to plaintiff's own evidence, the plaintiff never remained in possession of the suit land. It would also depict that the plaintiff never purchased the mortgagee rights. Consequently, the contention raised by counsel for the appellants cannot be accepted. There is concurrent finding by both the Courts below based on proper appreciation of evidence. The said finding cannot be said to be perverse or illegal so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal. Accordingly the appeal is dismissed. 21.07.2010 ( L. N. MITTAL ) A. Kaundal JUDGE