R.S.A. No. 1794 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1794 of 1985 Date of Decision: 16.10.2008 Harparshad and others ...Appellants. Versus Ganga and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Ms. Alka Sarin, Advocate for the appellants. None for the respondents. AJAY KUMAR MITTAL, J. Failing before the lower appellate court, the plaintiffs have approached this Court way of present regular second appeal against the judgment and decree dated 16.4.1985 passed by the lower appellate court vide which that of the trial court dated 16.10.1984 decreeing the suit of the plaintiffs for declaration was set aside and the suit of the plaintiffs was dismissed. Adumbrated, the facts necessary for the disposal of this appeal are that the plaintiffs were mortgagees in possession of the agricultural land comprising khewat No. 588, khatauni No. 868, killa Nos 126/1 (8-0), 126/2 (8-0) measuring 16 kanals situated within the revenue estate of village Khambi, Tehsil Palwal, District Faridabad (hereinafter referred to as the “suit land”). It was pleaded that one Malhad son of Andhu mortgaged the suit land with Lala Ram, predecessor-in-interest of plaintiffs No.1 to 4 and Yadram (plaintiff No.5) R.S.A. No. 1794 of 1985 -2- and mutation No.1522 in this regard was sanctioned on 25.1.1949 and the defendants were the successors-in-interest of said Malhad mortgagor. It was further pleaded that the mortgage was not redeemed and the period for redemption had elapsed and consequently the right of redemption became extinct and the plaintiffs had become owners of the suit land by prescription. According to the plaintiffs, the defendants filed an application for redemption in the Court of Collector, Palwal and after their appearance, the said application was dismissed as withdrawn. It was also pleaded that though the plaintiffs had become owners of the suit land still they were shown as mortgagees in the revenue record. Accordingly, the plaintiffs filed a suit for declaration to the effect that they had become owner in possession of the suit land and the defendants had no right, title or interest therein. To controvert the stand of the plaintiffs, the defendants filed a joint written statement raising various preliminary objections. It was pleaded that the suit land was mortgaged orally and was redeemed in 1962 after paying the mortgage money and since then they had been in its possession as owners and these facts were admitted by the plaintiffs in the application earlier filed by the defendants for redemption of the suit land. It was further pleaded that after redemption, the possession of the suit land was taken by the father of the defendants. According to the defendants, even after the suit land was redeemed, the names of the plaintiffs continued to be shown wrongly as mortgagees. The other averments made in the plaint were denied and a prayer for dismissal of the suit was made. From the pleadings of the parties, the trial court framed the R.S.A. No. 1794 of 1985 -3- following issues:- “1. Whether the suit land is redeemed from mortgagee in favour of the plaintiffs? OPP 2. Whether the plaintiffs are in possession of the suit land? OPP 3. Whether the plaintiffs are estopped from filing the present suit, as alleged? OPD 4. Relief.” On appreciation of the oral as well as the documentary evidence led by the parties, the trial court while deciding issue No.1 in favour of the plaintiff held that the suit land was not redeemed in 1962. Issue No.2 was also decided in favour of the plaintiffs holding that the plaintiffs were in possession of the suit land. Issue No.3 was decided against the defendants being not pressed. Accordingly, the trial court vide judgment and decree dated 16.10.1984 decreed the suit of the plaintiffs. Feeling aggrieved, the defendants approached the lower appellate court which vide judgment and decree dated 16.4.1985 accepted the appeal and dismissed the suit of the plaintiffs holding that it was incumbent upon the plaintiffs to allege and prove the date of mortgage and its terms which they had failed to prove. Furthermore, the revenue entries and the mutation cannot provide the basis for determining the date when the mortgage was created and that such entries only prove existence of mortgage and not the actual date when the same was effected. Hence, the present regular second appeal by the plaintiffs. Learned counsel for the appellants has assailed the R.S.A. No. 1794 of 1985 -4- judgment and decree of the lower appellate court and submitted that the lower appellate court had wrongly dismissed the suit for declaration filed by the plaintiffs and the plaintiffs had become the owners of the suit land as the defendants had failed to get the suit land redeemed. According to the learned counsel, the substantial question of law, thus, arises for consideration of this Court. I have heard learned counsel for the appellants and have gone through the record with her assistance. I do not find any merit in the contention of the learned counsel for the appellants. The lower appellate court recorded that the plaintiffs were in possession and though the mortgage was created but the date of creation was not definite. There was no period prescribed for redemption at the time of creation of the mortgage. The principle regarding limitation for redemption of usufructuary mortgage is no longer res integra as the same has been settled by a Full Bench of this Court in Ram Kishan and others v. Sheo Ram and others, 2008 (1) PLR 1, wherein it has been held that in a case of usufructuary mortgage, the mortgage can be redeemed at any time when no period of limitation has been prescribed and the same becomes due when redemption is sought for. The relevant observations are extracted hereunder:- “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 R.S.A. No. 1794 of 1985 -5- 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.” In view of the above, finding no merit in this appeal, the same is hereby dismissed with no order as to costs. October 16, 2008 (AJAY KUMAR MITTAL) gbs JUDGE