R.S.A. No. 4234 of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4234 of 2003 (O&M) Date of decision: December 01, 2008 Karam Singh and others ..Appellants v. Smt. Kanso .. Respondent CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. B.R. Mahajan, Advocate for the appellants. Mr. D. S. Pheruman, Advocate for the respondent. .. Rajesh Bindal J. The defendants are in second appeal before this Court against concurrent finding of fact by both the courts below, whereby the suit filed by the respondent along with Smt. Guri for possession by way of redemption was decreed. Briefly, the facts are that the respondent alongwith Smt. Guri filed suit for possession by way of redemption of land measuring 23 kanals and 14 marlas being 2/3rd of land measuring 35 kanals and 12 marlas claiming themselves to be the owners and mortgagors of the land with the defendants-appellants. The mortgage was entered into on 21.7.1971 for a period of 80 years for an amount of Rs. 5,000/-. Both the courts below accepted the plea of the plaintiffs pleading the clause of 80 years in the mortgage to be a clog on redemption being unequitable and illegal. Reliance was placed upon a judgment of Hon'ble the Supreme Court in Shivdev Singh v. Sucha Singh, 2000(3) PLR 495. Learned counsel for the appellants submitted that the judgment in Shivdev Singh's case (supra), as was relied upon by the courts below, was not applicable in the facts and circumstances of the present case as the courts below have failed to appreciate the stand of the appellants that the land was in fact sold to them by the plaintiffs and the entire consideration money in the form of Rs. 5,000/- was paid. The mortgage deed was entered into for a longer period only for the reason that apprehension of pre-emption was always there. On the other hand, learned counsel for the respondent submitted that there is no material on record to come to the conclusion that the deal between the R.S.A. No. 4234 of 2003 [2] parties was for sale of the land and it was merely a mortgage deed which was executed to which the plaintiffs always had a right to redeem at any time. The clause of 80 years, as is put in the mortgage deed, was clearly a clog on the equity of redemption. Having heard learned counsel for the parties, I do not find any merit in the present appeal. The learned court below has rightly put reliance on Shivdev Singh's case (supra), where 19 kanals and 2 marlas of land in Village Sansra, Tehsil Ajnala, was mortgaged for a sum of Rs. 7,000/- vide mortgage deed dated 19.3.1968 for a period of 99 years on the terms that the mortgagor was not entitled to redeem before the end of the period, such term was held to be a clog on the equity of redemption. It was further taken note of that the mortgagee had enjoyed the fruits from the land by taking the possession thereof for a considerable period on payment of a meager sum of Rs. 7,000/-. In the present case as well, the appellants have enjoyed the fruits of about four acres of land since 1971. The material placed on record by the appellants by showing the value of the land was not sufficient to hold that it was in fact a sale and not a mortgage. The findings recorded by the courts below are plain and simple findings of fact recorded on correct appreciation of law by following the judgment of Hon'ble the Supreme Court in Shivdev Singh's case (supra). No substantial question of law arises. Accordingly, the present appeal is dismissed. (Rajesh Bindal) Judge 1.12.2008 mk