RSA No.1410 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1410 of 1984 (O&M) Date of Decision: 25.01.2010 Malkiat Singh ..Appellant Vs. Jagir Singh & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE VINOD K.SHARMA Present: Mr.G.S.Punia, Advocate, for the appellant. None for the respondents. --- Vinod K.Sharma,J. (Oral) This regular second appeal by the defendant/appellant is directed against the judgment and decree dated 4.1.1984 passed by the learned courts below vide which suit filed by the plaintiff/respondent No.1 for declaration claiming the right of ownership in the property with the lapse of time due to non-redemption of mortgage stands decreed. RSA No.1410 of 1984 2 Plaintiff/respondent No.1 filed a suit for declaration to the effect that he was owner in possession of land measuring 1 kanal 7 marlas in the area of village Shankar Tehsil Nakodar with share in tube- well etc. and other incidental rights of ownership in the land. Pleaded case of the plaintiff/respondent No.1 was that Maya Singh, predecessor-in- interest of defendants-appellant was owner of Killa No.73/1 (2K 14M) Khewat and Khatauni No.200/674 and he mortgaged this land in favour of Milkha Singh son of Gopal Singh vide mutation No.574 sanctioned on 29.6.1922 for Rs.600/- (Rupees six hundred only) on the basis of registered mortgage deed dated 22.3.1922. Possession of the land was delivered by the predecessor-in-interest of the defendants-appellant on 22.3.1922 to the mortgagee. It was also the case of the plaintiff that the land in dispute was allotted in lieu of originally mortgaged land. That Maya Singh or his heirs i.e. defendants-appellant did not care to get the land redeemed within the stipulated period i.e. up to 31.12.1970, the period allowed for this redemption, with the result that, the plaintiff had become full owner by extinguishment of right of redemption by lapse of time on 31.12.1970. The case of the plaintiff was that the defendants/appellant were asked many a times to admit the claim of the plaintiff but they refused to do so and therefore, necessity arose to file the suit. Only defendants No.1 to 6 contested the suit, whereas other defendants were proceeded ex parte. Preliminary objection was raised that the name of the father of Jhalman Singh defendant was Ganga Singh and therefore, the plaint RSA No.1410 of 1984 3 required amendment, otherwise, it was liable to be dismissed. Similarly, it was mentioned that names of other parties were also wrongly mentioned. It was claimed that son of Maya Singh had sold his share of land to Banta Singh son of Didar Singh. So Chanan Singh's widow Smt.Gurmej Kaur and Banta Singh vendee's successor were not made party to the suit and therefore, the suit was liable to be dismissed. It was the case of the defendants that the plaintiff admitted and acknowledged in writing the existence of mortgage specifically, and thereby the right to redeem on the basis of admission and acknowledgment was still in force. It was the case of the defendant-appellant that in the consolidation proceedings in the year 1961-62 land was allotted on the basis of admission and acknowledgment, hence the limitation for redemption had not expired. The suit was said to be not maintainable. It was also the case set up by the defendants/appellant that acknowledgment of redemption was made when Chanan Singh's vendee made payment of mortgage money to the plaintiff/respondent in the year 1962-63 and possession of the land was delivered to him. On merit, it was denied that the land was mortgaged with the predecessor-in-interest of the plaintiff. It was reiterated that limitation to redeem the property was still available and suit was not competent in view of the acknowledgment. In the replication, the plaintiff/respondent reiterated the averments made in the plaint and denied those made in the written statement. RSA No.1410 of 1984 4 On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the plaintiff has become owner by extinguishment of rights of redemption? OPP 2. Whether the suit is bad for non-joinder of necessary parties as per allegations contained in para Nos. 2 and 3 of preliminary objection of written statement? OPD 3. Whether the plaint required amendment as given in preliminary objection No.1 of the written statement? OPD 4. If issue No.1 is proved, whether the plaintiff ever acknowledged the liability to redeemed the land as per section 18 of the Indian Limitation Act, 1963? OPD 5. Relief. On appreciation of evidence, learned courts below have recorded a concurrent finding of fact that the plaintiff/respondent became owner of the land by extinguishment of right of redemption due to passage of time. Suit was held to be not bad for non-joining of necessary parties. It was also held that the suit did not require any amendment. It was also held that there was no acknowledgment of the plaintiff/respondent regarding liability to redeem as per Section 18 of the Limitation Act, 1963. Consequently, the suit was decreed. Learned counsel for the appellant contends that this appeal RSA No.1410 of 1984 5 raises the following substantial questions of law for consideration by this court: 1. Whether usufructuary mortgage could mature into ownership with passage of time? 2. Whether in the absence of term of mortgage having been proved on record could the limitation period would start from the date of mortgage, as alleged in the plaint? Learned counsel for the appellant in support of substantial questions of law contended that as admittedly possession of the mortgage land was handed over to the plaintiff/respondents, therefore, it was usufructuary mortgage, therefore, there was no limitation to redeem the land. The learned courts below, therefore, committed an error to hold that the plaintiff had become owner of the land in dispute with lapse of time. In support of this contention, 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 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 RSA No.1410 of 1984 6 held that once a mortgage always a mortgage and is always redeemable.” It is also the contention of the learned counsel for the appellant that in this case plaintiff/respondent failed to lead any evidence with regard to the terms of mortgage and therefore, the contention that the mortgage could be redeemed by a date mentioned in the mortgage deed could not be starting point of limitation, to non-suit the defendants/appellant and to declare the plaintiff as owner of the land in dispute. In view of the authoritative pronouncement of this court in the case of Ram Kishan and Ors. Vs. Sheo Ram and Ors. (supra) substantial questions of law are answered in favour of the appellant and against the plaintiff/respondent No.1. 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 is dismissed. No costs. (Vinod K.Sharma) 25.01.2010 Judge rp