IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 584 of 2000 Date of decision 19.3.2008 Smt. Dhani Appellant Versus Telu and another Respondents Coram: The Hon’ble Mr.Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellant: Mr.Ramakant Sharma, Advocate. For the Respondents: Mr.G.D.Verma, Senior Advocate with Mr.B.C.Verma, Advocate, for respondent No.1. Rajiv Sharma, J. This regular second appeal arises out of the judgment and decree passed by the learned Additional District Judge, Solan in Civil Appeal No.8- NL/13 of 1999 decided on 27.9.2000. The brief facts necessary for the adjudication of the second appeal are that the appellant-plaintiff hereinafter referred to as the plaintiff for convenience sake, had filed a suit for declaration with consequential relief of permanent injunction stating therein that the plaintiff is the mortgagee in possession and the redemption orders passed by the learned Collector, Nalagarh dated 15.9.1994 are wrong, illegal, null and void. The suit filed by the plaintiff was resisted by respondent defendant No.1 Telu Ram. The replication was filed by the plaintiff to the written statement filed by the respondent defendant No.1, hereinafter referred to as the defendant for convenience sake. The trial court on the basis of the pleadings of the parties had framed the following issues:- 1 Whether reporter of local papers are allowed to see the judgment ? No. 2 1. Whether the plaintiff is in possession over the suit land? OPP 2. Whether the defendant No.2 has executed anomalous mortgage in favour of predecessor-in-interest of the plaintiff? If so, its effect? OPP 3. Whether the order dated 15.9.1994 of Collector, Nalagarh is wrong, illegal, null and void? OPP 4. Whether the plaintiff has become owner of the suit land as alleged ?OPP 5. Whether the plaintiff is entitled for the relief of permanent injunction? OPP 6. Whether this Court has jurisdiction? OPP 7. Relief. The trial court had given the following findings on the aforesaid issues: Issue No.1 Yes Issue No.2 No Issue No.3 No Issue No.4 No Issue No.5 No Issue No.6 Yes Relief Suit dismissed as per operative portion of the judgment. The trial court had dismissed the suit of the plaintiff on 8.2.1999. Feeling aggrieved by the judgment and decree dated 8.2.1999, the plaintiff filed an appeal in the court of learned Additional District Judge, Solan on 16.3.1999. The learned District Judge had framed the following points for determination:- 1. Whether the judgment and decree of the trial court dated 8.2.1999 warrant interference? 2. Final order. The learned District Judge had recorded the following findings on the aforesaid points: Point No.1 No Final order The appeal is dismissed and judgment and decree of trial court are affirmed as per operative portion of judgment. 3 The learned District Judge dismissed the appeal on 27.9.2000 and the judgment and decree passed by the learned trial court dated 8.2.1999 were upheld. This second appeal was admitted by the Court on the following substantial questions of law: 1. Whether the learned courts below are right in holding that condition in a mortgage was a clog on mortgage and the mortgagor was entitled to redeem within the period of 30 years despite the fact that the mortgagor failed to redeem within a period of eight years as agreed and with further stipulation agreeing to consider the mortgage as sale in favour of the mortgagor? 2. Whether the learned courts below are right in holding that the order dated 15.9.1994 Ext. D3 is legal order especially when the respondent No.2 Telu Ram on whose application this order was passed was not having any right interest or title on the d ate of filing of the said application? I have heard the learned counsel for the parties and have also gone through the record of the case. Both the substantial questions of law being interconnected are taken up together. The undisputed facts are that defendant No.2 Amar Chand (proceeded ex parte on 30.8.2001 before this Court) had mortgaged land in dispute to Mailer the husband of plaintiff for consideration of Rs.4000/-.The mutation No.100 dated 23.3.1981 was sanctioned by PW-3 Harbhajan Singh. The defendant No.1 had filed case No.3/93 titled Telu Ram vs. Smt. Dhani Devi in the court of Collector, Sub Division, Nalagarh and the same was allowed on 15.9.1994. PW-1 Krishan Lal had stated that Amar Chand had mortgaged 5 bighas of land in consideration of Rs.4000/- to Mailer and mortgage deed was executed. PW-2 Som Nath had stated that he was posted as Patwari in Rampur circle in the year 1980 and he had brought Rapat Roznamcha. He has placed on record copy of Ex.PW2/A. PW-3 Harbhajan Singh had sanctioned the mutation No.100 on 23.3.1981. PW-4 Smt. Dhani Devi is the plaintiff. She had stated that land measuring 5 bighas was mortgaged and her husband was mortgagee and Amar Nath 4 was mortgagor. She has also stated that mortgage deed was executed and as per the deed the mortgage amount was to be paid within 8 years and if the mortgagor could not pay the mortgage amount within 8 years then the mortgage land was to be deemed to be sold. The mortgage deed to which reference has been made by PW 1 and PW 4 has not been placed on record. In the documents placed on record there is no mention that any mortgage deed was executed between Amar Chand and husband of the plaintiff. It is admitted by the parties that the possession of the suit land was transferred by the mortgagor to the mortgagee. The mortgage in question was usufructuary. In the absence of the mortgage deed being placed on record it cannot be presumed that there was any condition to the effect that if the money is not paid within 8 years, the mortgage will be treated as sale. Even if hypothetically it is presumed that such like condition was in existence the same will amount to clog on the equity of redemption not permissible under law. Consequently, it is held that the order passed by the Collector, Sub Division Nalagarh dated 15.9.2004 is in accordance with law since the defendant No.1 has stepped into the shoes of Amar Chand. It is settled law by now that the mortgagor right to redeem survives till there has been completion of sale by the mortgagee by a registered deed until the sale is complete by registration the mortgagor does not close his right of redemption. The equity of redemption is not extinguished by mere contract for sale. The findings given by the courts below are finding of fact and thus cannot be interfered in second appeal. There is no question of law much less substantial question of law involved in this second appeal. Accordingly finding no merit in this appeal the same is hereby dismissed. March 19 ,2008 (g) ( Rajiv Sharma ), J.