RSA No. 1544 of 1987 1 IN THE PUNJAB AND HARYANA HIGH COURT,AT CHANDIGARH. Decided on May 12,2008 Partap Singh -- Appellant. vs. Sain and others -- Respondents. Present: Mr.G.S.Jaswal,Advocate,for the appellant Mr.Vikas Bahl,Advocate, for the respondents. Rakesh Kumar Jain, J : This second appeal has been preferred by plaintiff No.1 against the judgment and decree of both the Courts below, whereby his suit for declaration filed to the effect that he along-with defendant Nos. 15 to 36 are owners in possession of land measuring 30 kanals 16 marlas, situated within the revenue estate of village Jahidpur, Tehsil Dasuya, District Hoshiarpur, being mortgagee having acquired right of ownership by efflux of time, was dismissed. Briefly stated the facts of the case are that Rattan Singh of Fateh Singh, who originally lived in village Gharwal, Tehsil Syalkot,West Pakistan, was the predecessor-in-interest of the plaintiff, to whom one Nihala, ancestor of the defendant, who originally lived in village Dhungi, RSA No. 1544 of 1987 2 Tehsil Syalkot,West Pakistan, had mortgaged the land in question, situated in village Bhaijwal, Tehsil Syalkot in the year 1874. The alleged mortgagee Rattan Singh died in the year 1893 in West Pakistan. After his death, the plaintiffs and defendant Nos. 15 to 36 became mortgagees in possession of the said land situated in village Bhaijwal. It is further pleaded by the plaintiffs that at the time of partition of the Country, the plaintiffs and defendant Nos. 15 to 36 had migrated to India and were allotted land in village Jahidpur in lieu of the land left by them in West Pakistan. They were given sanad of mortgagee rights in respect of the land bearing Khasra Nos. H2/425/105/1, H2/428/143/1, H2/428/1, H2/428/149/1, H2/428/112/1, H2/428/117/1, H2/428/121/1, H2/428/124/1, H2/428/129/1, H2/428/136/1, H2/428/156/1 along-with other sanad allotment. However, during consolidation proceedings, the land mentioned in the head of the plaint i.e. 39 kanal 16 marlas comprised in (i) Khata 103/168, Rect 17 Kh.No.1/3 (4-8), (ii) Khata 108/173 Rect 17 Kh.No. 1/1(0-16),Rect 18 Kh.No. 5 (0-8), (iii) Khata 109/174, Rect No. 11 Kh.No.17/3 (3-2), 23(7-11), and 271 (0-8) (iv) Khata 110/175 Rect No. 17 Kh. No. 3/1 (2-5), and 291 (0-10),(v) Khata No.115/185 Rect 11 Kh.No. 22/2 (1-7), (vi) Khata 98/163 Rect 17 Khata No.2/4 (0-12), (vii) Khata 99/164 Rect 17 Kh. No. 2/3 (1-0), (viii)Khata No.106/171 Rect 17 Kh.No.1/2 (0-2),(ix) Khata No.100/165 Rect 17 Kh.No.2/2 (1-4), (x) Khata 107/172 Khasra No. 292 (0-9), (xi) Khata No.102/ 167 Rect 17 Khasra No- 2/1 (4-10), and 1/ 4 (0-10), was allotted in lieu of the land mentioned in the said sanads. It is further maintained that the plaintiffs and defendant Nos. 15 to 36 were mortgagees of the land in Pakistan and then in India since the allotment in the year 1949 and have acquired right of RSA No. 1544 of 1987 3 ownership by efflux of time as mortgage has not been redeemed by the mortgagors. The suit was contested by defendant No.5A to 5E,whereas the other defendants did not opt to contest the suit despite service. It was claimed that the suit land was never mortgaged to the plaintiffs and the possession was also never handed over to them. However, it was admitted that one Nihala was owner of the land in village Bhaijwal. The plaintiffs filed replication denying the averments of the written statement and reiterating the stand taken in the plaint. The parties went on trial on the following issues:- 1. Whether the plaint is vague. If so its effect ? OPD 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the defendants' ancestor Nihala mortgaged with possession lands in villageBhaijwal, Tehsil Syalkot with plaintiffs' ancestor Rattan Singh in 1864 ? OPP 4. Whether the plaintiffs and defendant Nos. 15 to 36 were allotted land as mortgagees of said land in India in village Zahidpur, Tehsil Dasuya ? OPP 5. Whether the suit land was carved in lieu of said land in consolidation proceedings ? OPP 6. Whether plaintiffs and defendant nos. 15 to 36 have become owners of suit land by efflux of time ? OPP 7. Relief: RSA No. 1544 of 1987 4 The trial Court dismissed the suit holding that the documents relied upon by the plaintiffs do not, in any way, connect the suit land with the land alleged to have been mortgaged by Nihala in village Bhaijwal, therefore, the factum of mortgage was not proved. The first appeal filed by the plaintiffs was also dismissed by learned Additional District Judge, Hoshiarpur, in which the following observations were made:- “Assuming for the sake of arguments that Nihala had some land in village Bhaijwal (West Pakistan) and he had mortgaged that land with Rattan Singh in the year 1964. The mortgage must have been effected through some mortgage deed. Admittedly, no mortgage deed or any other document has been brought on the record which may go to show that any land was ever mortgaged by Nihala in favour of Rattan Singh. In the absence of any documentary evidence, it is difficult rather impossible to ascertain as to what and how much land in village Bhaijwal (West Pakistan) was mortgaged by Nihala in favour of Rattan Singh in the year 1864. Therefore, it is not possible to conclude that the land in suit was in fact allotted to the plaintiffs in lieu of the land which was allegedly mortgaged by Nihala in favour of Rattan Singh. The documents referred to by the learned counsel for the appellants do not at all indicate that the land mentioned therein, was allotted to the appellants in lieu of that specific land which was allegedly mortgaged by Nihala in favour of Rattan Singh. In this view of the matter, the documents on which, much RSA No. 1544 of 1987 5 reliance has been placed by the learned counsel for the appellants are not of any help to them. Therefore, I am of the considered view that the finding returned under issue No.3 by the learned trial Sub Judge is well founded and I affirm the same”. At the very outset of the hearing of this case before this Court, learned counsel for the respondents confronted the learned counsel for the appellant with the full Bench decision of this Court rendered in the case of Ram Kishan vs. Sheo Ram, 2008 (1) Law Herald P&H (F.B) 46 and had argued that in the case of usufructuary mortgage, no time limit is fixed to seek redemption. It was further emphasized that as per ratio of law laid down by the Hon'ble Full Bench, once a mortgage always a mortgage and is always redeemable. Thus, it was argued that although the plaintiff has miserably failed to prove the factum of mortgage, yet in view of the judgment of Hon'ble Full Bench, no relief can be given to him on the ground of having become owner after expiry of prescribed period for redemption. This Court relying upon the aforesaid Full Bench has also decided in the cases of Gurdev Kaur and others v. Niranjan Singh and another 2008 (2) P.L.R.360 and Harbhajan Singh v. Niranjan Singh (deceased) and others 2008 (2) P.L.R.418 that in case of usufructuary mortgage, where no time limit is fixed to seek redemption, right to seek redemption would not arise on the date of mortgage but will arise on the date when mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof, therefore, right to seek redemption does not get extinguished by efflux of time in the case of usufructuary mortgage. RSA No. 1544 of 1987 6 In view of my above discussion, there is no question much-less substantial involved in this appeal or any such question is raised by learned counsel for the appellants. The appeal thus being devoid of any merit is dismissed. However, there shall be no order as to costs. May 12,2008 (Rakesh Kumar Jain) RR Judge