RSA No.4001 of 2007 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4001 of 2007 (O&M) Date of decision: 4.2.2009 Jagdev Singh and another ......Appellants Versus Paramjit Singh and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Sandeep Jasuja, Advocate for the appellants. Mr. M.K. Dogra, Advocate for the respondents. * * * Rakesh Kumar Garg, J. This is plaintiffs' second appeal challenging the judgment and decree of Lower Appellate Court whereby District Judge, Ferozepur has accepted the appeal filed by the defendant-respondents and has set aside the judgment and decree of the trial Court passed in favour of the appellants decreeing his suit for declaration that the plaintiff-appellants have become owners in possession of the suit property by lapse of time as the mortgage qua the suit property was not got redeemed by the defendants within a period of 30 years, resulting into dismissal of the suit of the plaintiff-appellants. Brief facts of the case, giving rise to this appeal, are that the plaintiff-appellants filed a suit for declaration that the property in dispute was mortgaged in favour of the predecessor-in-interest of the plaintiffs and since the time of the mortgage, they remained in possession as mortgagees and after them, the plaintiffs inherited the right as mortgagees and remained in possession as such and since the property in dispute was not redeemed within the period of limitation they have become the owners RSA No.4001 of 2007 (O&M) 2 by afflux of time. The aforesaid suit was contested by the defendant- respondents on various grounds and one of the objections taken was that the declaration sought by the plaintiff-appellants cannot be granted as there is no limitation for filing a suit for redemption of the mortgage of the suit property as the same was with possession and therefore, the plaintiff- appellants cannot become the owners. The trial Court vide its judgment and decree dated 16.3.2006 held that the plaintiffs have become owners in possession of suit property by lapse of time of 30 years as the mortgage qua the property was not got redeemed by defendant-respondents or other predecessors-in-interest. On an appeal filed by the defendant- respondents, the Lower Appellate Court vide impugned judgment and decree dated 4.10.2007 relying upon judgment of the Hon'ble Supreme Court reported as Harbans Lal v. Om Parkash 2006(1) PLR 852 held that since no time was fixed for redeeming the land, the mortgagor has right to get the property redeemed and accepted the appeal by the Lower Appellate Court and set aside the judgment of the trial Court. Feeling aggrieved from the same, the plaintiffs have filed the instant appeal challenging the judgment and decree of the Lower Appellate Court. Learned counsel for the appellants has vehemently argued that in view of the judgment of the Hon'ble Supreme Court in the case of Prabhakaran and others v. M.Azhagiri Pillai (Dead) by LRs. and others 2006(2) RCR (Civil) 428, limitation for redemption of a mortgage of land is 30 years and therefore, the impugned judgment and decree is liable to be set aside and the appellants are entitled to the grant of decree by accepting this appeal. On the other hand, learned counsel for the respondents has contended that in a usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on the date RSA No.4001 of 2007 (O&M) 3 of mortgage but will arise on the date when the mortgagor pays or tenderd to the mortgagee or deposits in Court the mortgaged money or the balance thereof and has relied upon the Full Bench of this Court in Ram Kishan and others v. She o Ram 2008(1) PLR 1 and has prayed for dismissal of the appeal. I have heard learned counsel for the appellants. The only question raised in this appeal is whether in the case of mortgage with possession where no time limit is fixed to seek redemption, a declaration can be sought on the ground that the mortgagee has become the owner of the mortgaged property by afflux of time and the mortgagor cannot redeem the mortgaged property after a lapse of 30 years from the date of mortgage. The contention raised by the learned counsel for the appellants on the basis of the judgment of the Hon'ble Apex Court in Prabhakaran's case (supra) is misconceived. The aforesaid judgment of the Hon'ble Supreme Court has been considered by a Full Bench judgment of this Court in Ram Kishan's (supra) and after observing that in Prabhakaran's case (supra), the primary question was in respect of acknowledgment though there were some observations that in case of a usufructuary mortgage which does not fix any date for repayment of the mortgage money, the right to redeem would accrue immediately on execution of the mortgage deed but said observations were held to be obiter inasmuch as the Hon'ble Supreme Court had allowed the appeal of the mortgagor for redemption while holding that there is an acknowledgment and after considering the aforesaid judgment of the Hon'ble Supreme Court and relying upon judgment of the Apex Court in Harbans Lal's case (supra) held that in case of usufructuary mortgage where no time limit is fixed, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pays or RSA No.4001 of 2007 (O&M) 4 tenders to the mortgagee or deposits in Court the mortgaged money or the balance thereof and it was held that once a mortgage is always a mortgage. Thus, in view of the aforesaid pronouncement of this Court in Ram Kishan's case(supra), there is no merit in this appeal. No substantial question of law arises. Dismissed. February 4, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.4001 of 2007 (O&M) 5 The only question raised in this appeal is whether in the case of mortgagee with possession, there is any limitation for filing the suit? Learned counsel for the appellants has vehemently argued that limitation in such cases is 30 years as decided by the ratio of the Hon'ble Supreme Court in Prabhakaran and others v. M.Azhagiri Pillai (dead) by LRs and others 2006(2) RCR (Civil) 428. The contention raised by the learned counsel for the appellant is without any merit . The judgment of the Hon'ble Supreme Court has been discussed by a Full Bench of this Court which has authoritatively laid down as under.