IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 273 of 1992 Judgment reserved on: 8th March, 2010 Decided on : Bal Krishan and others …Appellants. Versus Madan Lal and others ….Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 Yes For the Appellants : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. For the Respondents: None. Surjit Singh, Judge This Regular Second Appeal is directed against the judgments and decrees of the trial Court and first appellate Court, whereby appellants’ suit for declaration that they have become owners of the suit property, described in the plaint, on account of foreclosure of mortgage, has been dismissed. Suit was filed in the Court of Senior Sub Judge, Kangra at Dharamshala, which was dismissed, vide judgment and decree dated 31.10.1985. Appeal, filed against the judgment and decree of the trial Court, has been dismissed by the learned Additional District Judge, Kangra at Dharamshala, vide judgment and decree dated 9.3.1992. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Appeal was admitted on the following substantial questions of law: “1. Whether the judgment and decrees of both the courts below are vitiated due to misreading the oral and documentary evidence on record, particularly, Ext P-1, P-2 and P-9? 2. Whether both the courts below have erred in law in holding the period of limitation to be 60 years and permitting the defendants to avail the benefit of the Amending Act (Act No.10 of 1969)? 3. Whether both the courts below have erred in law in relying upon the entries in the revenue record which did not show the factum of redemption recorded therein. In the absence of any documentary proof of redemption of mortgage, whether both the courts below have erred in law inferring the implied redemption of mortgage? 4. Whether both the courts below have erred in law in not granting the decree for injunction in favour of the plaintiffs-appellants when the consistent entry of possession was available on record?” 3. Appeal was accepted by this Court, vide judgment dated 2.9.1998. In the said judgment, there was no reference to the substantial questions of law on which appeal had been admitted or what substantial questions of law were involved or dealt with. Therefore, Hon’ble Supreme Court, which was approached by the respondents by filing Civil Appeal No.918 of 2000, has remanded the appeal to this …3… Court with a direction to decide the same afresh after formulating substantial questions of law. 4. Facts, relevant for the disposal of the appeal, may be stated. In the year, 1919, mortgage of suit property, as described in the plaint, was created by one Shri Devia, now dead, in favour of appellant/plaintiff Ram Dass and the predecessor-in-interest of other appellants/plaintiffs. Devia was succeeded by his son Ram Ditta, who sold the mortgaged suit property to Shri Ram Rakha, the predecessor-in-interest of the respondents/defendants. Mortgage was not redeemed within 30 years. Plaintiffs, therefore, filed a suit for declaration that they had become owners of the suit property on account of foreclosure of mortgage, by afflux of time. 5. Defendants contested the suit and claimed that mortgage stood redeemed on 14.12.1970 and that the redemption had taken place within the period of limitation. Some preliminary objections were also raised. It was stated that the plaintiffs were estopped to sue, suit was not maintainable, it was bad for non-joinder of necessary parties and the defendants were entitled to special costs, under Section 35-A CPC. 6. Learned trial Court framed various issues on the pleadings of the parties and concluded that mortgage stood redeemed in the year 1970, within the period of limitation and, hence, the suit was liable to be dismissed. Consequently, the same was dismissed. …4… 7. Appeal filed by the plaintiffs-appellants in the Court of District Judge was dismissed by the learned Additional District Judge, vide judgment and decree dated 9.3.1992. 8. I have heard learned counsel for the appellants and gone through the record. 9. During the course of trial, parties adduced both oral and documentary evidence. Plaintiffs relied upon copies of entries in the revenue record, i.e. Misal Hakiat and Jamabandis as also copy of order dated 1.4.1969, Ext. P-9, passed by Sub Divisional Collector, Dehra. Documents referred in substantial question No.1, as reproduced hereinabove, are copies of Misal Hakiat, Exts. P1 and P2, in which the plaintiffs are recorded as mortgagees. It appears that subsequent to the settlement, which resulted in preparation of Misal Hakiat (copies Exts. P-1 and P-2) and other record, revision of annual record took place in the years 1964-65 and 1970-71. Copies of such annual record, known as Jamabandis, are Ext. P-5 (for the year 1964-65) in which the plaintiffs are recorded as mortgagees and Ext. D-1 (for the year 1970-71) in which plaintiffs’ names do not figure. Instead the suit property is shown to be in possession of the owners. 10. Ext. P-9 is the copy of order of Collector, Dehra, which shows that one of the defendants, namely Mandan Lal son of Ram Rakha, had filed an application before the Collector for redemption of mortgage, proceedings of which …5… had been stayed on account of pendency of a civil suit, filed by one Waryam Singh, claiming himself to be one of the mortgagees, in which a declaration was sought that mortgagees had become owners of the suit property on account of non-redemption within the period of limitation, prescribed under the Limitation Act of 1963. 11. It is submitted on behalf of the appellants that when the plaintiffs were being shown in possession of the suit land as mortgagees in the Misal Hakiat, copies Exts. P-1 and P-2 as also in Jamabandi Ext. P-5, for the year 1964-65, their names could not have been omitted in the subsequent Jamabandi for the year 1970-71, unless there was a decree of Court or an order by the competent Revenue Officer. It is contended that there was absolutely no order justifying the change in the Jamabandi to which presumption of truth attaches. 12. Contention of the learned counsel for the appellants appears to be fallacious. I find on record an order, copy Ext. D-4, passed by Collector, Dehra, whereby an appeal filed by the appellants-plaintiffs against the order dated 14.12.1970 of learned Assistant Collector, 2nd Grade, sanctioning the mutation of redemption of mortgage, was dismissed being barred by time. Neither this order Ext. D-4 nor the order of mutation dated 14.12.1970, challenged in appeal before Collector, Dehra, has been assailed in this case. A reading of Ext. D-4 shows that the appellants themselves pleaded that mutation of redemption had been …6… ordered by Assistant Collector, 2nd Grade, vide order dated 14.12.1970, which they had challenged. Grounds of appeal are reproduced in order Ext. D-4. From these grounds it is clear that before the passing of order dated 14.12.1970, a receipt had been executed by one of the appellants, i.e. appellant No.2, Ram Dass, per which he had received the mortgage money and he appeared before Tehsildar in redemption proceedings. Position of a mortgagee is no better than that of a creditor and once a creditor receives the debt money and thereby discharges the debt he cannot retain the security, which in the present case was landed property, mortgage of which had been created in favour of the appellants. 13. In the grounds of appeal reproduced in order Ext. D4 though it was stated that writing had been got prepared by the defendants, cleverly, yet no such plea was raised in the suit nor were the particulars of any act of cleverness mentioned in the plaint. Aforesaid grounds, stated in Ext. D-4, suggest that the plaintiffs admitted having received the mortgage money and having furnished the receipt and this admission on their part in the proceedings, before the Collector, is a piece of substantive evidence. 14. Learned counsel submitted that when application for redemption was pending before the Collector, Dehra, which had been stayed, vide order Ext. P-9, debt could not have been discharged or mortgage could not have been redeemed by the parties by getting the mutation sanctioned. …7… I find no merit in the submission, because, as already noticed, a creditor is free to accept the debt money any time, even during the pendency of litigation and by accepting the debt money and giving discharge to the debtor, he ceases to have had any right over the property pledged or mortgaged, as security. Payment of mortgage debt automatically amounts to redemption of mortgage. In the present case, no doubt no receipt was produced by the defendants, but as already noticed, admission in the grounds of appeal, as reproduced in order Ext. D-4, is no less a valuable piece of evidence than the written receipt of payment of debt itself. 15. Learned counsel for the appellants further submitted that even if on the basis of order Ext. D-4 it could be said that some money had been paid by the respondents to Ram Dass, one of the mortgagees, that would not amount to redemption of mortgage, because Ram Dass was not the sole mortgagee and, therefore, he could not have given the valid discharge on behalf of other co-mortgagees, unless the other co-mortgagees consented to that. The submission has been noticed only to be rejected. Appellants did not raise the plea that the co-mortgagee was not a consenting party to the receipt of the mortgage money executed by Ram Dass, when they challenged the mutation order dated 14.12.1970, before the Collector. In the plaint also, they did not raise this plea. As a matter of fact, they suppressed the fact that mutation had been attested by a Revenue Officer on 14.12.1970, after the mortgage debt was received by Ram …8… Dass and a receipt was executed by him in favour of the respondents. This fact was admitted by them before the Collector, in appeal, which was disposed of vide order Ext. D-4. Respondents cannot be taken by surprise now at this belated stage, by raising this kind of plea. It is quite likely that had the appellants taken such a plea in the plaint, the defendants would have not only refuted the same but would have also disproved it by leading evidence. 16. In view of the above discussion, substantial question of law No.1 is answered against the appellants. 17. Substantial question of law No.2 has not been correctly framed. Trial Court and the first Appellate Court have nowhere stated that limitation for redemption of mortgage was 60 years. Limitation was 60 years, when the mortgage was created, because at that time Limitation Act of 1908 was in force. The Act of 1908 was repealed by Act of 1963. Section 30 of the repealing Act provides that where the Limitation provided under the repealed Act of 1908 was longer than the limitation provided in the repealing Act of 1963, the suit may be filed within seven years, next after the commencement of the repealing Act or within the period prescribed for such suit by the Limitation Act, 1908, whichever period expires earlier. 18. In the present case, extended period of seven years was available to the respondents, because, as already noticed, limitation for redemption of mortgage was 60 years under the repealed Act, 1908. Act of 1963 came into force …9… on and with effect from 1.1.1964. Therefore, the respondents could have sued for redemption of mortgage upto 1.1.1971. Mortgage money was paid somewhere in the year 1970 and mutation of redemption was attested in December, 1970, or say, before the expiry of seven years period. Therefore, this substantial question of law is also answered against the appellants. 19. As regards substantial question of law No.3, as already noticed, order Ext. D-4 passed by the Collector in appeal, preferred by the appellants against the order dated 14.12.1970, clearly shows that the order dated 14.12.1970 pertained to mutation of redemption of mortgage. By this order, respondents were ordered to be recorded in possession of the suit land, on account of their having redeemed the mortgage. Hence, this question is also answered against the appellants. 20. Coming to substantial question of law No.4, as noticed hereinabove, redemption took place in the year 1970 and mutation of redemption was also attested in December, 1970, and in the very next Jamabandi Ext.D-1 for the year 1970-71, respondents were recorded in possession of the suit property as owners and the names of the appellants, under the column pertaining to names of persons in possession, which were being recorded in the earlier jamabandi Ext. P-5, for the year 1964-65, stood deleted. Hence, this question is also answered against the appellants. …10… In view of the above discussion, it is held that there is no merit in this appeal. The same is, therefore, dismissed. March , 2010 (ss) (Surjit Singh), J