IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.4053 of 2000 Date of Decision: 19.5.2009 Sulakhan Singh and others. ....... Appellants through None. Versus Harjinder Singh and others. ....... Respondents through None. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgments and decrees dated 26.5.1997 and 18.9.2000 passed respectively by the Civil Judge (Junior Division), Ferozepur (described hereinafter as `the trial Court') and the Additional District Judge, Ferozepur (hereinafter referred to as `First Appellate Court') whereby the suit of the plaintiffs-respondents was decreed and the appeal of the defendants-respondents was dismissed. The respondents filed a suit for declaration and possession. It was pleaded that one Tarlok Singh son of Charat Singh, predecessor-in- interest of the appellants, had mortgaged land comprised in Rect.No.36, Killa No.16 (4-5) in favour of Anokh Singh son of Charat Singh, the predecessor-in-interest of the respondents vide mutation no.564 sanctioned on 13.3.1960 on the basis of consolidation scheme dated 31.12.1959 for a R.S.A.No.4053 of 2000 -2- .... sum of Rs.71/- as compensation in lieu of the wells. After the death of Tarlok Singh, the mutation of inheritance was sanctioned in favour of his sons, namely, Chanan Singh, Suja Singh, Tek Singh and Sulakhan Singh in equal shares in respect of the land in dispute. Chahan Singh sold his 1/4th share of the land in dispute to appellant no.2 and mutation no.1907 to that effect was sanctioned in her favour. Tek Singh son of Tarlok Singh also sold out his 1/4th share out of the land in dispute to appellant no.2 and mutation no.1908 was sanctioned. The relevant entries about the above sales appeared in the jamabandi for the year 1977-78. Accordingly, appellant no.2 became owner of the suit land to the extent of ½ share. Suja Singh son of Tarlok Singh sold land measuring 12 marlas to the extent of 480/3341 share out of the suit land in favour of Surat Singh son of Sulakhan Singh, appellant no.3 and mutation no.2724 was sanctioned in his favour. Suja Singh also sold 9 marlas of land to the extent of 355/334 share out of the suit land to appellant nos. 4 & 5 and mutation no.2724 was sanctioned in their favour. It was averred that Anokh Singh, the mortgagee died on 8.6.1969 and mutation no.1070 of his inheritance was sanctioned in favour of the respondents on 23.7.1969 and they became mortgagee by operation of law in respect of the suit land. Mutation No.2794 regarding inheritance of mortgagee rights was also sanctioned and entered in the revenue record on 26.2.1996. After mortgage of the suit land, the possession thereof remained with the mortgagors as tenants on payment of 1/3rd share of produce (Batai) under Anokh Singh and after his death, under the respondents and the R.S.A.No.4053 of 2000 -3- .... appellants were in possession of the suit land as tenant and had been paying share of produce to them. The mortgagors,i.e., the appellants, did not redeem the land in dispute within the stipulated period of 30 years and as such, the respondents claimed that they had become owners thereof by efflux of time in view of the provisions of Section 27 of the Limitation Act,1963. It was also alleged that the sale deeds in favour of appellant nos. 3 to 5 executed on 17.5.1993 and 19.5.1993 were illegal and void and subject to mortgage. On the basis of the above averments, it was prayed by the respondent that since the mortgagor or his successors-in-interest have failed to redeem the mortgage within the prescribed period, they be declared owners in possession of the suit land and possession thereof be got delivered to them. Upon notice, the appellants appeared and resisted the suit. It was alleged that the respondents had suppressed the material facts from the Court and as such, they were not entitled to the decree for declaration. It was pleaded that the suit land was never mortgaged by their predecessor-in- interest to Tarlok Singh and, therefore, the question of its redemption did not arise at all. It was also pleaded that the respondents had nothing to do with the suit land. The other averments made by the respondents were also denied and it was prayed that the suit be dismissed with costs. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiffs are entitled to the declaration with R.S.A.No.4053 of 2000 -4- .... consequential relief of possession as prayed for?OPP 2. Whether the plaintiffs are entitled to the injunction prayed for?OPP 3. Whether the suit is maintainable?OPD 4. Relief. After appraisal of the entire evidence on record, the trial Court decreed the suit of the respondents and in appeal, its findings were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. On 6.11.2000, while admitting the appeal, this Court had directed it to be heard along with R.S.A. No.1611 of 1999. The Registry has put up this matter for disposal before the Court with a report that R.S.A.No.1611 of 1999 has since been decided on 22.10.2008 by a learned Single Judge in view of the judgment of the Full Bench in Ram Kishan and others Versus Sheo Ram and others, decided on 12.12.2007, reported as 2008(1) R.C.R. (Civil) (P&H) 334. No one has appeared on behalf of the parties despite the fact that the case has been shown in the list of motion cases. After perusal of the file, I am of the opinion that the following questions of law arise for determination of this Court and the appeal deserves to be disposed of in view of the aforementioned judgment of the Full Bench:- 1. Whether the findings recorded by the Courts below are perverse and are liable to be set aside? R.S.A.No.4053 of 2000 -5- .... 2. Whether the mortgage in this case is a usufructuary mortgage or a simple mortgage and is redeemable even today and the rights of the mortgagor not extinguished by efflux of time? In Ram Kishan and others (supra), the Full Bench in paragraphs 30,31,32 and 42 has observed as under:- “30. Thus, the right of redemption by act of parties can be extinguished by independent contract subsequent to the mortgage and not by an unilateral act on the part of the mortgagee under the mortgage. 31. In Ganga Dhar's case (supra), Hon'ble Supreme Court was examining a mortgage which was for a period of 85 years but the same was sought to be redeemed before the expiry of the said period on the ground that such long period amounts to clog on redemption. The Court to the following effect:- “The right of redemption, therefore, cannot be taken away. The Courts will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage with the specified period of six months the mortgagor will have no claim over the mortgaged property, and the mortgage deed will be deemed to be deed of sale in favour of the R.S.A.No.4053 of 2000 -6- .... mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagor's right to redeem the mortgage after the specified period. This is not permissible, for “once a mortgage always a mortgage” and, therefore, always redeemable. The same result also follow from Section 60 of the Transfer of Property Act....” 32.The said judgment was quoted extensively by the Hon'ble Supreme Court in Harbans's case (supra), which arose out of a judgment of this Court reported as Harbans v. Om Parkash, 1998(1) RCR (Civil) 678 : 1998(2) PLR 172. The order passed by this Court is reproduced for ready reference:- “1. This is plaintiff's second appeal. 2. Plaintiff filed civil suit contending therein that the land in dispute was mortgaged by the ancestors of One Bhira with the fore-fathers of plaintiff and mortgage has not been got redeemed by the mortgagor within 30 years and so, the plaintiff and defendants 2 and 3 have become owners by efflux of time. Upon notice of suit, defendant No.1 contested the suit and alleged that mortgage has already been redeemed. He denied that plaintiff and defendants 2 and 3 have become owners by efflux of time. Trial Court decreed the suit, but on appeal by defendant No.1 judgment of the trial Court has been modified and it has been held R.S.A.No.4053 of 2000 -7- .... that plaintiff and defendants 2 and 3 have not become owners as there is no period of limitation to redeem usufructuary mortgage. It has, however, been held that defendant No.1 has failed to prove the mortgage has been redeemed. Against the judgment and decree of the first appellate Court, plaintiff has come in second appeal. 3. Learned counsel appearing on behalf of plaintiff relying upon judgment of the Apex Court in State of Punjab and others v. Ram Rakha and others, 1998(3) RCR (Civil) 124 : JT 1997(2) SC 577, has contended that by not redeeming the mortgage within the stipulated period, mortgagor has lost right to redeem the same. 4. After hearing the counsel and going through the record, I am of the view that the judgment cited by the counsel for plaintiff in Ram Rakha's case (supra) , the point in issue was not considered. In this case, it is the admitted case of the parties that mortgagee is in possession of the property in dispute and no evidence has been brought on record by the mortgagee to show that mortgage was for a fixed period. Since no time was prescribed for redeeming the land, the mortgagor has the right to get the property redeemed, R.S.A.No.4053 of 2000 -8- .... there being no limitation for redeeming the said mortgage (emphasis supplied). In this regard, reference be made to judgment in Panchanan Sharma v. Basudeo Prasad Jaganani and others, 1995 HRR 575. Consequently, this appeal being without any merit shall stand dismissed.” 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 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.” The facts of the instant case reveals that the mortgage of the suit land by the predecessor-in-interest of the appellants in favour of the predecessor-in-interest of the respondents was amply proved and so was the possession. It is clearly established that the appellants were the tenants and in permissive possession of the suit property. No time limit was fixed for redemption of the mortgage. Therefore, it was a usufructuary mortgage not a simple mortgage. In so far as the possession is concerned, the appellants are shown as tenants over the suit land. In this view of the matter, the observations of the Full Bench reproduced above are straight-away attracted to the facts of the instant case R.S.A.No.4053 of 2000 -9- .... and the mortgage could be redeemed at any time being usufructuary mortgage. The questions of law, as mentioned above, are, therefore, answered to say that the mortgage in this case was a usufructuary mortgage and not a simple mortgage and it could be redeemed at any time and that the findings recorded by the First Appellate Court are liable to be set aside. Accordingly, this appeal is accepted, the judgment & decree of the First Appellate Court are set aside and the appellants are held entitled to get redeemed the mortgaged suit property by paying the mortgage money to the successors-in-interest of the original mortgagee. May 19,2009 ( Mahesh Grover ) “SCM” Judge