RSA No.1044 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1044 of 2007 (O&M) Date of decision : 30.11.2009 Ram Kishan and another . . . . Appellants vs Smt. Indrawati and others . . . . Respondents CORAM : HON’BLE MR. JUSTICE RAJESH BINDAL Present: Mr.Harkesh Manuja, Advocate for the appellants. Mr.Vikram Punia, Advocate for respondents No.1 to 5 RAJESH BINDAL, J. Defendants No.2 and 3 have challenged the judgment and decree of both the Courts below whereby suit of the plaintiff for foreclosure of a right to redeem the mortgage land by the defendants, has been decreed. The suit was initially filed on 28.2.1996, which was later on amended. In the suit the plaintiff averred that agricultural land measuring 14 bighas and 12 biswas comprised in Khewat No.71, Khata No.190, Khasra No.738 (14-12) situated within the revenue estate of Vill. Asadpur, Tehsil and District Sonepat was owned and possessed by Ram Sarup son of Jiya Ram to the extent of 2/3rd share and Krishan Kumar son of Deep Chand to the extent of 1/3rd share. After the consolidation in the village, new numbers were allotted to the aforesaid owners in lieu of the land mentioned hereinbefore, namely, Khewat No.110/71, Khata No.262, Rec. and Killa No.19/2/2 (2-12), 19/3 (8-0), 19/8 (7-7), 19/9/1 (2-12), 19/26 (0-13), total measuring 21 kanals 4 marlas situated within the revenue estate of village Asadpur, Tehsil and District Sonepat. The case of the plaintiff is that Ram Sarup and Krishan Kumar mortgaged the aforesaid land with possession to the plaintiffs by a registered mortgage-deed bearing No.3119 Bahi No.1 Volume No.382 dated 13.2.1964 and executed on 18.3.1963 for consideration of Rs.8000/- with a further stipulation that it could be redeemed by the mortgagers within a period of six months from the date of execution / registration of the RSA No.1044 of 2007 -2- mortgage-deed. It is further alleged that Ram Sarup, one of the mortgager, died in the year 1975 leaving behind the present appellants as his only Legal Representatives. It is claimed that the land in question is under mortgage with possession with the plaintiff for over a period of more than 30 years and has not been redeemed by the mortgager, thus, by efflux of statutory period of 30 years, the plaintiffs have become the owners and the right of redemption of the defendants has been foreclosed forever. In the written statement, execution of the mortgage-deed was denied and was alleged to be sham transaction. It was alleged that even if the said mortgaged-deed is proved to have been executed even then in case of a usufructuary mortgage, the mortgager does not loose his title over the property and right to redeem by lapse of time as there is no time limit fixed for redemption. The plaintiffs also filed replication in which the averments made in the written statement were denied and that of the plaint were reiterated. On the pleadings of the parties, learned trial Court framed following issues: “1. Whether the plaintiffs are owners in possession over the suit property by way of extinguishments of the rights of the defendants to get the suit property redeemed from mortgage? OPP. 2. Whether the present suit of the plaintiffs is not maintainable nor the plaintiffs have any locus – standi to file the same? OPD 3. Whether the present suit is bad for non-joinder of the necessary parties? OPD 4. Whether the mortgage deed dated 13.2.1964 is illegal and void? OPD 5. Whether the present suit is barred by the period of limitation in time? OPD 6. Relief.” Both the parties led their oral as well as documentary evidence. The learned trial Court decreed the suit of the plaintiff holding them to be the owners in possession by way of efflux of time. The first appeal by the defendants also met with the same fate as the same was RSA No.1044 of 2007 -3- dismissed on the ground that limitation to recover possession by way of redemption of a mortgaged property is 30 years from the date of accrual of right to redeem. As that period had expired, the defendants had lost their right to redeem the property as their right has been foreclosed. Still aggrieved, defendants are in second appeal before this court. Learned counsel for the appellant has vehemently argued that as it is a case of mortgage with possession, which comes within the definition of usufructory mortgage and in view of the full bench decision of this Court rendered in the case of “Ram Krishan and others Versus Sheo Ram and other” 2008(1) RCR (Civil) 334, there is no time limit for seeking redemption. On the other hand, learned counsel for the respondents has submitted that the decision in the case of Ram Krishan and others (supra) is rather in his favour than in favour of the appellant because in the Full bench, it has been held that if there is no time limit fixed to seek redemption then there is no limitation. Where a period is fixed for the purpose of redemption, the period of limitation is 30 years from the expiry of the said period. I have heard learned counsel for the parties and perused the paper-book with their assistance. The important aspect of the case is embedded in the mortgage deed (Ex.P-2) in which, it is provided that the land was to be redeemed within a period of six months. Meaning thereby, the mortgage was for a period of six months and if it is not redeemed then the fixed period of limitation of 30 years, provided in the Article 61(a) of the Limitation Act, 1963 would start after expiry of which the right of the mortgagor to redeem the land, shall stand foreclosed. Thus, the appellants cannot be permitted to take the plea that once mortgage, always a mortgage where the time limit is fixed for the purpose of redemption. In view of the above, I do not find any substantial question of law arises in present appeal. Thus, the same is dismissed. 30.11.2009 ( Rajesh Bindal) vs. Judge