IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 24 of 2000. Judgment reserved on: 22.11.2011. Date of Decision: 28.11.2011 Bhandaru Ram (deceased) through his LR Rattan Lal ..Appellant Versus Sukh Ram and others ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr.G.D. Verma, Senior Advocate with Mr.B.C. Verma, Advocate. For the Respondent(s): Mr.Deepak Bhasin, counsel for respondents No. 1 to 3. Deepak Gupta, J. 1. This appeal is directed against the judgment and decree dated 24.8.1999 passed by the learned District Judge, Bilaspur in Civil Appeal No.79 of 1992 whereby he dismissed the appeal filed by the defendant and affirmed the judgment and decree passed by the learned trial Court. 2. Briefly stated, the facts of the case are that one Bhandaru son of Johari filed a suit against Bhandaru son of Daya Ram on 11.6.1990. In this suit it was alleged that the plaintiff had mortgaged the suit land alongwith possession with - 2 - the defendant on 13th / 14th January, 1961 for a sum of Rs.800/-. It was further pleaded that since the defendant had reaped the benefits of the land and had received much more than the mortgaged amount, the plaintiff was entitled to redeem the land without payment of any amount. 3. The defendant did not deny the creation of mortgage but according to him the actual date of mortgage was 26.1.1958 and since 30 years had elapsed on the date of filing of the suit, the suit was time barred and the defendant had become owner by way of foreclosure. 4. Both the Courts below held that the land was mortgaged in the year 1961 as claimed by the plaintiff and as such the suit was within limitation and accordingly decreed the suit. Hence, this appeal by the defendant. 5. This appeal was admitted on a number of substantial questions of law but in my opinion only the following questions of law arise for determination: I) Whether any period of limitation is prescribed for filing a suit for possession of immovable property by - 3 - redemption of a usufructuary mortgage which does not fix any time for repayment of mortgage money?” II) Whether the Courts below have erred in not taking into consideration the document mark Y on the ground that the same cannot be looked into for any purpose since the document was not registered. 6. As far as question No.1 is concerned, this Court vide its order dated November 3, 2010 had referred the same to a larger bench keeping in view the conflicting opinions of the Court. A Full Bench of this Court vide its judgment dated 30.8.2011 answered the question in the following terms: “The period of limitation for filing a suit for recovery of possession of immovable property or redemption of usufructuary mortgages which have not fixed any time for repayment of mortgage money is 30 years as prescribed under Article 61 to the Schedule to the Limitation Act, 1963 (60 years under Article 148 as per Indian Limitation Act, 1908).” 7. Thus, the law stands settled that limitation is only 30 years and in case the suit land was mortgaged in the year 1958, as alleged by the defendant, the suit would be time barred but if it is held that the land was mortgaged in the year 1961 the same would be within limitation. - 4 - 8. Sh.Deepak Bhasin, learned counsel for the plaintiff-respondent urges that both the Courts below have come to a finding of fact that the land was mortgaged in the year 1961 and not in the year 1958 and this finding being a pure finding of fact cannot be interfered with in second appeal. Normally, the question as to the date of creation of mortgage would be a pure question of fact and not a question of law, but in the present case, I find that both the Courts below have totally discarded writing mark PY placed on record by the defendant. 9. The question which arises for consideration is whether such document could be looked into for a collateral purpose or not. The learned Courts below, in my view, gravely erred in holding that since the document had not been exhibited it would not be read in evidence. In this case, the alleged scribe of the document appeared as DW- 2 and stated that the document was executed on 26th January, 1958 and he had written the date on the document below his signatures. DW-1 is the defendant himself and according to him he had got the document entered in the register owned - 5 - by him and that this document was written by the scribe on the asking of both the plaintiff and the defendant. The marginal witness was also examined. Therefore, the document should have been exhibited but probably it was not exhibited on the ground that initially it was impounded for want of stamp duty and the same was not registered. 10. The document in question, mark PY is a writing whereby the plaintiff is alleged to have created the mortgage in favour of the defendant. Even though Registration Act did not apply to the area in question at the relevant time, once a document creating right, title or interest in a property having value of more than Rs.100/- was executed the same was required to be registered and stamped. However, in my view, the same could be looked into for the collateral purpose of seeing whether the document was executed on 26th January, 1958 or not. 11. It would also be pertinent to mention that the plaintiff had himself filed an application under Section 45 of the Evidence Act praying that the writing dated 26.1.1958 be sent to the finger print - 6 - Expert to compare the thumb mark on the said document with the thumb mark of the plaintiff since plaintiff has denied that he had thumb marked the document. This application was allowed by the learned trial Court on 3rd February, 1992 and the plaintiff was directed to give his specimen finger prints for comparison with the finger prints on the document in question. Adjournment in this behalf was also given but the plaintiff did not care to get the document sent to the Director, Finger Print Bureau, Phillour (Punjab) despite order of the Court. 12. As observed above, the document had been proved on record and in my view can certainly be looked at for the collateral purpose to find out the date on which it was written. Both the parties admit that the mortgage took place. The identity of the suit land is not in dispute. The only dispute is with regard to the date of mortgage. Both the Courts below gravely erred in holding that since the writing mark-Y did not contain any description of the mortgaged land it could not be looked into. It is nobody’s case that any other mortgage had taken place between the parties. Mortgage - 7 - qua the suit land stood admitted. The only dispute was with regard to the date. The plaintiff despite being given an opportunity on his own application to send his finger prints for comparison did not avail of this opportunity and therefore an adverse inference could have been drawn against him. 13. In my view, the Courts below committed a serious error of law in not relying upon the document mark Y. In case this document is looked into then it is apparent that the mortgage was created on 26th January, 1958. The suit which was filed on 11.6.1990 was therefore time barred having been filed beyond the period of limitation. 14. In view of the above discussion, I am of the considered view that the appeal has to be allowed and substantial question No.2 is answered by holding that both the courts below erred in not taking into consideration the document mark-Y and in holding that the mortgage had been created on 13th January, 1961. This finding is perverse and against the documents on record and it is clear that the mortgage was created on 26th January, 1958. Accordingly, the appeal is - 8 - allowed. The suit of the plaintiff is dismissed with costs throughout. Decree sheet be framed accordingly. November 28, 2011. ( Deepak Gupta ), J. PV