R.S.A.No.1951 of 1983 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.1951 of 1983 (O&M) Date of Decision: 16.12.2008 Bhim Singh ...Appellant Versus Dalip Singh and Others ...Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA. Present:- Mr. Amit Jain, Advocate, for the appellant. None for the respondents. RAJIVE BHALLA, J(Oral) The appellant, challenges the judgment and decree dated 11.05.1983, passed by District Judge, Gurgaon, accepting the appeal filed by the respondent No.1, reversing the judgment and decree dated 29.09.1982, passed by the Sub Judge IInd Class, Gurgaon and as a result dismissing his suit. The appellant filed a suit, claiming ownership and for grant of an injunction to protect his possession by alleging that though his mother Sukhdai mortgaged the suit land on 27.12.1929 and 05.01.1937, two of the mortgagees, Jaimal and Maman, filed a suit claiming that they had become owners of 6 bighas 1 biswa of land, as the mortgage reflected by mutation No.784 dated 27.12.1929, was not redeemed, within time. This suit and the appeal filed were dismissed on 02.01.1974 and 31.03.1977 respectively, and it was held that the mortgage had come to an end as Smt. Sukhdai had repaid the mortgage amount in 1959. The defendant Girdhari (since deceased), represented by the R.S.A.No.1951 of 1983 (O&M) -2- respondents, on the other hand, controverted the averments in the plaint, denied that the mortgage has been redeemed and asserted that as the mortgage has not been redeemed within time, the suit is barred by time. Girdhari also filed a suit for grant of an injunction to protect his possession. Both the suits were consolidated by the trial Court. After considering the dispute in its entirety, the trial court held that Smt. Sukhdai had redeemed the mortgage on payment of Rs.445/- to Maman, Jaimal and Umrao (father of the Girdhari) and was in possession of the suit land as owner. As a result the suit filed by the appellant was decreed and that filed by Girdhari was dismissed. Aggrieved by these judgments, Girdhari filed two separate appeals. The first appellate Court accepted the appeals, reversed the judgments and decrees passed by the trial Court and dismissed the suit filed by the appellant by holding that as the mortgage had not been redeemed within thirty years, the respondents had become owners by efflux of time. The suit for injunction filed by the Girdhari was decreed. Counsel for the appellant submits that as the connected appeal R.S.A. No.1925 of 1983 titled as “ Bhim Singh v. Jagmal and others” has been allowed, vide judgment dated 24.10.2008, the present appeal would also have to be disposed of in terms thereof. I have heard counsel for the appellant, perused the impugned judgment as also the judgment dated 24.10.2008, passed in Regular Second Appeal No.1925 of 1983 titled as “ Bhim Singh v. Jagmal and others” and am satisfied that the judgment in the aforesaid appeal squarely covers the controversy in the present appeal. It would be necessary to mention here that Bhim Singh the appellant and Girdhari, the defendant (now represented by his legal representatives Dalip singh and others) filed two separate suits with respect to the same property. The appellant filed a suit for declaration of his ownership while alleging the R.S.A.No.1951 of 1983 (O&M) -3- mortgage has been redeemed, whereas Girdhari filed a suit claiming that as the mortgage has not been redeemed within time, he had become owners in possession of the suit land by efflux of time and therefore, prayed for grant of an injunction. Both the suits were consolidated and the suit filed by Bhim Singh was decreed whereas the suit filed by Girdhari was dismissed by a common judgment. On an appeal filed by Girdhari, his appeals were accepted and the suit filed by Bhim Singh was dismissed whereas Girdhari's suit for injunction was decreed, again by a common judgment. Bhim singh, thereafter, filed two separate appeals Regular Second Appeal No.1925 of 1983 titled as “ Bhim Singh v. Jagmal and others” and Regular Second Appeal No.1951 of 1983 titled as “Bhim Singh v. Dalip singh and others”. The former appeal has been decided on 24.10.2008 and the judgments and decrees passed by the courts below have been set aside by holding that the appellant is owner/mortgagor of the suit land whereas the respondents are mortgagees in possession under a valid subsisting mortgage and, therefore, cannot be dispossessed, except in due course of law. In view of the aforementioned decision, the appeal is allowed and the judgments and decrees dated 29.09.1982 and 11.05.1983 passed by the courts below are set aside and it is held that the appellant is owner/mortgagor of the suit land, whereas the respondents are mortgagees in possession under a valid subsisting mortgage and, therefore, cannot be dispossessed, except in due course of law. No order as to costs. December 16, 2008 (RAJIVE BHALLA) nt JUDGE