IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 286 of 2000. Decided on : 24.5.2010. Jagar Nath alias Joni Ram …Appellant. Versus Missa and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 For the appellant : Pt. Om Parkash Sharma, Advocate. For the respondents : Mr. C.P.Sood and Mr. Debinder Ghosh, Advocates for respondents No.1, 3, 4 to 6, 8 & 9. Kuldip Singh , Judge (Oral) The plaintiff has come in appeal against judgment, decree dated 29.3.2000 passed by the learned District Judge, Chamba in Civil Appeal No. 54 of 1997 affirming judgment, decree dated 15.7.1997 passed by the learned Senior Sub Judge, Chamba in Civil Suit No. 124 of 1990. 2. The facts, in brief, are that appellant had filed a suit for possession by way of redemption of land more specifically described in plaint. The further case of the appellant is that suit land was mortgaged by his father on 15.6.1962 for a sum of Rs. 900/- to respondent No.1, Diwana father of respondents No.2, 3 and Laju predecessor-in-interest of respondents No.4 to 10. The mortgagees 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 are in possession of the suit land and they have taken the profits much more than the mortgage amount and as such, appellant is entitled to redeem the same without payment of mortgage amount. The mortgagees were requested to redeem the suit land without receiving any payment but they refused to do so, hence the suit was filed. 3. The suit was contested by the mortgagees, they took the plea that the revenue entries showing the appellant etc. to be owners of the suit land are wrong and inoperative on the rights of the mortgagees as they have acquired ownership rights of suit land by operation of law. They took preliminary objections of maintainability, estoppel and limitation. On merits, the date, amount for which the suit land was mortgaged were denied. It is the case of the mortgagees that Dhian Singh predecessor-in-interest of appellant left Bharmour for Kangra prior to Vikrami Samvat 1984 or 1976 i.e. more than 75 years ago. The suit land alongwith other land was mortgaged with Sant Ram predecessor-in-interest of mortgagees. They are in continuous possession of the suit land since 1984 Vikrami Samvat and have become its owners by operation of law. The entries in the revenue record are wrong and not binding on them. 4. It has also been pleaded that prior to settlement operation during subsistence of mortgage, they cultivated the suit land as tenants and have become owners by operation of law. In the alternative they pleaded ownership by adverse possession. In brief, they have pleaded that they have become owners and they are now not mortgagees. They also raised counter-claim that the entries in the 3 revenue record are not binding on them and a declaration be given to this effect. 5. The appellant filed written statement to the counter-claim and on the pleadings of the parties, the following issues were framed:- 1. Whether the suit land was mortgaged with possession in favour of defendant No.1, Diwana and Lajoo as alleged? OPP 2. If issue No.1 is proved whether the plaintiff is entitled to possession of the suit land by redemption? OPP 3. Whether the defendants No.1 to 4 have acquired title to the suit land by fore-closure ? OPD 1 to 4. 4. If issue No.2 is not proved, whether the defendants No.1 to 4 have acquired title to the suit land by adverse possession ? OPD 1 to 4. 5. Whether the defendants No.1 to 4 have been tenants in possession of the suit land as alleged ?OPD. 6. Whether the suit is not maintainable in the present form ? OPD. 7. Whether the plaintiff is estopped from instituting the suit by his act and conduct ? OPD 8. Whether the suit is within time ? OPP 9. Whether counter claim of the defendants is within time? OPD 10. Whether the suit is bad for non-joinder and mis-joinder ? OPD. 11. Relief. The issues No.1, 2, 3, 5 and 7 were held in negative, while issues No. 4 and 10 were not pressed, issue No. 6 was answered in affirmative, issues No.8 and 9 were held to have become redundant and the learned Senior Sub Judge dismissed the suit as well as counter-claim on 15.7.1997. The respondents did not file any cross-objections in the appeal in the learned lower appellate court nor they have filed separate appeal against the decision dated 15.7.1997. The learned District 4 Judge dismissed the appeal and in these circumstances, appellant has come in second appeal against judgment dated 29.3.2000 which has been admitted on the following substantial questions of law:- 1. Whether there is sufficient evidence on record to establish that the land in dispute was mortgaged with the predecessors-in-interest of the contesting defendants on 15.6.1962. 2. Whether at a time when oral mortgagees were permissible the date mentioned in the revenue record showing a person for the first time as mortgagee is sufficient to conclude the date of mortgage. 3. Whether there is any material on record to show that the predecessors-in-interest of contesting defendants are shown as mortgagee by subrogation as has been held by the learned District Judge. 6. I have heard the learned counsel for the parties and have also gone through the record. Once it has been found that the suit land was mortgaged by predecessor-in-interest of the appellant to the mortgagees, then the connected question is whether the mortgage is still subsisting and suit is barred by limitation. It has also been jointly stated by the learned counsel for the parties that from the evidence it emerges that it was usufructuary mortgage. In these circumstances, in addition to above substantial questions of law, additional substantial question of law arises for determination to the effect : Whether the suit is within limitation ? The learned counsel for the parties have jointly submitted that both the Courts have held that the suit land was mortgaged. This is a finding of fact. It has not been urged on either side that this is perverse finding. Therefore, it is held that suit land was mortgaged by predecessor in interest of appellant to mortgagees. 5 7. On the question of limitation, the learned trial Court has already framed issue No.8. In Harbans Vs. Om Prakash and others AIR 2006 SC 686, the Supreme Court has held that in the case of usufructuary mortgage in which no time for redemption of mortgage is prescribed, there is no limitation to redeem the mortgage. In the present case, it is nobody’s case that there was any specified time for redemption of the mortgage. In Jaimal & Others Vs. State of H.P. AIR 2010 H.P. 7, Division Bench has noticed Harbans (supra) and held that when no limitation was prescribed for redemption of usufructuary mortgage , application for mortgage cannot be held time barred. The present suit was filed during the subsistence of mortgage. 8. PW-1 Parkash Chand is the brother of appellant and he has stated that land was mortgaged by his father for a sum of Rs. 900/-. The income from the land is Rs. 2500/- per annum. PW-2 Pritam has stated that income from the land is Rs. 4000/- - 5000/- per annum. DW-1 Ashok Kumar is defendant No.3. He has stated that income from the land is Rs. 1500 – 1600/- per annum. It emerges from the statements of PW-1, PW-2 and DW-1 that income from the suit land is more than Rs. 1500 - 1600/- per annum. The learned trial Court has recorded a finding that suit land was mortgaged about 80 years ago. This finding has not been disturbed by the learned lower Appellate Court. DW-1 Ashok Kumar has stated that suit land was mortgaged for Rs. 700/- as against the claim of appellant that it was mortgaged for Rs. 900/-. It is not the case of the mortgagees that the suit land was mortgaged for amount more than Rs. 900/-. In these circumstances, it can be safely held that the suit land was mortgaged for Rs. 900/-. The land is coming in possession of the mortgagees for 6 the last about 80 years as per the findings recorded by the learned trial Court and not disturbed by the learned lower Appellate Court. The mortgagees in these circumstances have derived profits from the mortgage land more than the amount of mortgage together with reasonable amount of interest on the mortgage amount. Therefore, the appellant is entitled to redeem the suit land from the mortgagees without further payment of any amount to the mortgagees. In these circumstances, the substantial questions of law No.1 to 3 and additional substantial question of law referred above are decided in favour of the appellant. The learned two courts below have not properly appreciated the material on record and the law applicable in the matter, both the judgments, decrees are not sustainable. 9. No other point was urged. 10. The result of the above discussion, the appeal is allowed, judgment, decree dated 29.3.2000 passed by the learned District Judge, Chamba and judgment, decree dated 15.7.1997 passed by the learned Senior Sub Judge, Chamba are set-aside. The suit of the appellant for redemption of the suit land without payment of mortgage money is decreed with no order as to costs. ( Kuldip Singh ) Judge. May 24, 2010. (GR)