91 4 RSA N03218 of 1985 1 IN THE HIGH COURT OF AND HARYANA AT CHANDIGARH RSA No218 of 1985 Date ofdecision zze072010 e 1 Ram Nath and another 0 C C5 versus I t Z Sadhuand others r I 08 CORAM 1 HONBLE MRJUSTICE KCPURI em Z Present Mr ManujNagarthAdvocate for theappellants Mr SKChauhan Advocate for KCPURI J This is a regularsecondappealdirected byplaintifaoellants againstthejudgment and decree dated14101985 passedby Shri Krishan Kant AggarwalAdditional District JudgeRohtak vide which the appeal preferredby the againstthe judgmentand decree dated27A 1985 passedby Shri VPBishnoi Sub JudgeIst Class Jhajjar decreeing the suit of the plaintiffwas set aside after acceptanceof appeal andthe suit ofthe plaintiffwasdismissed 1 4 1 . Radhika 2012.05.18 10: 44 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 92 RSA N03218 of 1985 2 1 Shorn off unnecessarydetails the case of the plaintiffs as set forth in the plaint 1S that Maktul Singhfather of the defendant had 1 the suit land with 111 favour of the plaintiffe verballyfor considerationof Rs 13001 on 36 1944 and had 1m gotthe mutation No 132 in respectof this mortgagesanctioned in their C favour On the death of Maktul Singhdefendantinherited the rights 0 0 regardingequityof Ill the suit land and were recorded as I C5 thereinin therevenue record On 206 1982 the defendantspaid I Rs13001 to the plaintiffs as mortgageconsiderationand receiptExDwl of Z the same date was executed bythe plaintiffsin this respectwherebythe plaintiffsalso made a recital in receiptExlel that the mortgageofthe SUit land stood redeemed An intimation to this effect was also givento the 08 villagePatwari who made an entry in the DD dated 2161982 to this i effect and also enteredthe mutationregardingthe of the 7 mortgage of the suit land in the mutationregister It has been rther Il allegedthat Slnce the suit land had not been redeemedby the mortgagor Maktul Singhor his heirs 6defendants within 30 years of the date of the mortgagehence the rightof of the mortgagewhich the defendant had otherwise has been with the result that the 1 plaintiffsare owners in of the suit land Theyaverred that the defendantswanted to forcibly them from the suit land though theyhaveno rightto do so Hence the suit 1 The suit was contestedbythe defendants Theypleaded that in 1 18 Vlew of the paymentof Rs3001Iide receiptExDel dated 2161982 regarding the mortgageconsideration and consequent of the . Radhika 2012.05.18 10: 44 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 93 N03218 of 1985 3 1 and delivery ofthe suit land to them the plaintiffs are not entitled to the reliefclaimed Other objections were also takenby them Followingissueswere framed m 1 Whether the defendantshave gotthe suit land r in the year 1944redeemed2 1 0 2 Whether theplaintiffs have becomeowner ofthe 1 0 suitland as alleged 2 I 0 3 Whether theplaintiffshave no locusstandito Sle the presentsuit 2 I 4 Whether the suit is not maintainableas allegedin Z objection No Ee60fthe written statement 2 5 Whether theplaintiffs are estopped from filingthe C SUit bytheir own act and conduct 2 I 6 Whether theplaintis insufficient for the 08 purposes ofcourt fee ifso its effect2 7 Whetherthedefendantsare entitledto specialcosts 1 7 under section 351 of the Code of Civil Z Procedure2 na 8 Relief The parties led their respective evidence on the aforesaid lSSUeSe After appraisal of the evidence the leamed trial Court decreed the SUlt of the plaintiffvide judgmentand decreedated 2741985 passedby Shri VPBishnoi Sub JudgeIst Class Jhajjar Feelingdissatisfied with the and decree dated 271985 defendantspreferred theappealbeforethe First Appellate Court The said appeal was accepted vide judglnent and decree dated 1 14 101985 passedby Shri Krishan Kant AggarwalAdditional District JudgeRohtak while settingaside the judgmentand decree of the trial 1 . Radhika 2012.05.18 10: 44 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document Il 94 1 to ARSA N03218 of 1985 4 94 Court Feelingdissatisfied with the dated 1410 1985 1 has preferred the presentregularsecond appealbefore this Court m Duringthe pendency of the appealthe 1 submittedthefollowingsubstantialquestions of law for in the 0 1 3 presentappeal Z C5 I i9 Whether the lost theirrightto get the land redeemeda8er 30 yearsfrom thedate Z ie 361944 2 6iiWhethereceiptExhibit Dl could not be taken into considerationbeing 2 1 I iiilWhetherthe leamed Lower AppellateCourt misread the a5 evidence by holdingthat the mortgagewas self mortgage 2 7 6iv9Whether rightto redeemthe land cannot be revived even Z with the consent ofthe partiesaRer the expiryofperiodof 30 years2 I have heard leamed counsel for the partiesand have gone through the recordsofthe case 1 1 Learned counsel for the has submittedthat both the Courts have givena concurrent findingthat the suit land was in 1 the year 1944 The periodof limitation for the land is 30 years According to the case of defendant the land was redeemedafter the period of30 years Once theplaintiffs havebecomeowner ofthe suit propertyby lapseoftime there cannot be any Otherwise also thereceipt Ex1 has not been relied upon by both the Courts below So in these . Radhika 2012.05.18 10: 44 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 95 r 1 RSA N03218 of 1985 5 64 circumstancesthe plaintiffs have become owner of the suit propertyas the land hasnot beenredeemedwithin theperiodof30 years In replyto the abovenotedsubmissionsleamed counsel for the has submittedthat no documentregarding the land a has been placedon the flle It was an usuuctuary mortgageOnce a Q alwaysa mortgageand in view of latest Full Bench authority of 0 C ourown HighCourt reported in Ram Kishan and others VSe SheoRam I C40 and others 2008 111PLR page 1 the land can be redeemedat any tune I where no time limit is fixed for In view of the above said Z authorityitis arguedthatthe plaintiHs cannot take the pleathat plaintiffs 2 havebecome owner ofthe suit propertybylapseoftime rL I have consideredthe submissions madeby both the I 08 sidesand havegonethrough the recordsofthe case The case of the plaintiffs in nutshell is that theyhave become 7 Z owner of the suit propertyas the land has not been redeemedwithin 30 1 Llw yearsfrom its mortgage 111View ofArticle 61 ofthe Limitation Act The factum of mortgagewas not disputedbythe defendantsbut the defendants have taken a stand that the said land was redeemed on 206982 on payment of Rs30010 as mortgagemoneyThe trial Court decreedthe suit 1 ofthe plaintiffbutheld that since executionofExDel regarding after the periodsof 30 years has been provedand as such the defendants shall be entitled to recover Rsl3001 bywayof separatesuit The said was challenged by the defendants The AppellateCourt reached to the conclusion that the paymentof mortgagemoneyhas been made Although ExDml is inadmissible in evidence but the said receiptcan be . Radhika 2012.05.18 10: 44 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 96 0L N03218 of 1985 6 looked into for collateral purposesie to prove thepaymentof Rs13001 of by the mortgagees and consequentdeliveryand re4ransfer of of the suit land by the mortgageesto the mortgagors the appeal was bysettingasidethejudgment dated 1 27A985 0 The Full Bench of this Court in authority Ram Kishan and 0 C others case 1supral has held that where thereis no time limit is tlxed to 1 I C5 seek therightto seek would not arise on the date of I mortgagebut will arise on the date when the mortgagorpay or tender to Z themortgagee or depositsthe amount in the Court e In the presentcase theplaintiffhas relied upon the revenue tr 04 record regarding mortgageThere isno mortgagein the present 08 case The time for the mortgagein such circumstanceshas not 1 been provedby the plaintiHs So ln view of the Full Bench authority vm Z referredto above the defendantshave gottherightto redeem the land 1 tl even after 30 years The AppellateCourt reached to the conclusion that amount of Rs3001 hasbeenpaid limitation and has 1 been delivered to the mortgagorby mortgagee on execution of the documentExJ1 dated2061982 So that is a findingoffact recordedby 1 the First AppellateCourt and the HighCourt cannot interfered in regular 1 second appeal So in view ofthe aboveobservationsthe substantialquestions of law raised by the stand answeredagainstthe and the appeal1S without any merit and the same stands dismissed Decree sheetbeprepared . Radhika 2012.05.18 10: 44 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 97 RSA N03218of 1985 7 A copy of this be sent to the trial Courtfor strict lr July 9 2010 JUDGE sv 0 C 1 0 Sm Z 1 1 C 08 4 0 Z tl l1 1 3 . Radhika 2012.05.18 10: 44 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document