JUDGMENT 1. - This appeal and two cross objections filed on behalf of the plaintiff-respondents and the respondents No. 9/1 are directed against the decree and judgment dated July 5, 1976 passed by the District Judge, Udaipur, by which the learned District Judge partly allowed the appeal filed by Balu Lal and Smt. Sajjan Bai. 2. Plaintiffs Balu Lal and Smt. Sajjan Bai filed a suit in the Court of the, Civil Judge, Udaipur, for partition and possession with respect to the properties of deceased Champa Lal mentioned in Schedule 'Kha' appended with the plaint. The plaintiffs' case as unfolded in the plaint is that six properties mentioned in the Schedule 'A' of the plaint, belong to one Champa Lal who died issueless in Samavat year 1975. He was survived by his widow Smt. Anop Bai, who also breathed her last in Samavat year 1979, leaving behind six co-lateral heirs of deceased Champa Lal namely Gordhan S/o Ragunath, Laxmi Chand S/o Sohan Raj, Khem Raj S/o Uttam Chand, Paras Ram S/o Prem Chand, Kalu Ram S/o Bholi Ram and Magan Lal S/o Bhohali Ram. The pedigree table was given in Schedule 'K' appended to the plaint. These six co-lateral heirs of deceased Champa Lal, also died. Plaintiff No. 1 Balu Lal and the defendant Laxmi Chand, Madan Lal, Sohan Lal and Smt Babu Bai are successors in interest of Laxmi Chand. Plaintiff No. 2 Smt. Sajjan Bai is the successor in interest of Gordhan Lal. Defendant Jamna Bai and Smt. Chosar Bai are the successors in interest of Khem Raj while defendant Ganesh Lal succeeded to Paras Ram. Defendants Madan Lal, Kanhaiya Lal and Harak Lal succeeded the interest of Kalu Ram while defendant Smt. Raj Kunwar Bai is the successor of Magan Lal. Property No. 1 and part of the property No. 2 met in Schedule 'Kha' were in the possessory mortgage with Laxmi Lal and Bhura Lal. Defendants Ganesh Lal, Mohal Lal, Harak Lal and Kanhaiya Lal, got those properties redeemed by paying the mortgage-money to the successors in interest of the mortgage of Laxmi Lal Chatur Lal and Bhura Lal Bhatta. Part of the property No. 2 was in possession of the mortgage of Laxmi Lal Pancholi and defendant Nos. 12 and 13 namely Keshar Singh and Brij Behari Singh and they are in possession of the said property as the heirs of Laxmi Lal Pancholi. Part of the property No. 2 was in possession of the mortgage of Laxmi Lal Pancholi and defendant Nos. 12 and 13 namely Keshar Singh and Brij Behari Singh and they are in possession of the said property as the heirs of Laxmi Lal Pancholi. Property No. 3 is in possession of the plaintiffs Balu Lal and Smt. Sajjan Bai. Property No. 4 is in the joint possession of plaintiffs and defendants Madan Lal and Smt. Bapu Bai. Property No. 5 a vacant plot of land is in possession of the defendant No. 1 Ganesh Lal and he constructed a house over the plot about 5 to 6 years before filing of the suit. Property No. 6 is a Chowk between the deceased Champa Lal and defendants Kanhaiya Lal, Madan Lal and Babu Bai. The plaintiffs gave several notices to the defendants to partition the properties in question, but they did not give any reply to the plaintiffs and, therefore, this suit for partition and possession was filed and the plaintiff No. 1 Balu Lal claimed 1/16 share in all the suit properties while the plaintiff No. 2 Smt. Sajjan Bai claimed 1/2 share in the properties. The plaintiffs, therefore, claimed partition and possession of their respective separate shares. Defendants Laxmi Lal, Madan Lal, Bapu Bai, Jamna Bai and Smt. Chaser Bai filed a joint written statement substantially admitting the claim of the plaintiffs. Defendant Nos. 1 to 4 viz., Ganesh Lal, Mohal Lal, Harak Lal and Kanhaiya Lal contested the suit and filed a joint written statement, is that the pedigree table filed by the plaintiffs is not correct and property No. 5 did not belong to Champa Lal but it belongs to the defendant Ganesh Lal, Smt. Anop Bai, (Widow of Champa Lal), survived by Paras Ram, Kalu Lal, Khem Chand and Madan Lal and these persons are her sole heirs and Laxmi Chand and Gordhan Lal were not her heirs. Laxmi Chand died in the life-time of Smt. Anop Bai and therefore he cannot be her heir. Smt. Sajjan Bai plaintiff No. 2 was not the heir of Gordhari Lal and plaintiff No. 1 Balu Lal and defendants Laxmi Chand, Madan Lal, Sohan Lal and Bapu Bai were not the successors in interest to Laxmi Chand. Laxmi Chand died in the life-time of Smt. Anop Bai and therefore he cannot be her heir. Smt. Sajjan Bai plaintiff No. 2 was not the heir of Gordhari Lal and plaintiff No. 1 Balu Lal and defendants Laxmi Chand, Madan Lal, Sohan Lal and Bapu Bai were not the successors in interest to Laxmi Chand. The defendants Jamna Bai and Chosar Bai were the daughters of Hem Raj and being the daughters, they were not his successors in interest as they were excluded from succession by local customs. Khem Raj was succeeded by his son Mansukh Lal, who died in Samavat year 2010 and Smt. Jamna Bai and Smt. Chosar Bai were not the heirs of Mansukh Lal. Raj Kunwar who was also excluded from succession being a daughter of Magan Lal. The appellants redeemed the properties No. 1 and part of property No. 2 after the expiry of the period of limitation and, therefore, the plaintiffs cannot claim any benefit in them and they are not entitled to get any share by way of partition. The appellants spent a sum of Rs. 22,000/- on the redemption of these properties and as such the suit filed by the plaintiffs is insufficiently stamped and deserves to be dismissed. On the basis of the pleadings of the parties the trial Court framed eight issues. The plaintiffs in support of their case examined six witnesses while the defendants, in support of their case, examined twelve witnesses in rebuttal. Documentary evidence was, also produced on behalf of both the parties. The learned Civil Judge, Udaipur by his decree and judgement dated March 22, 1971 passed a preliminary decree in favour of the plaintiff No. 1 and defendant Nos. 1 and 8 and 11 in respect of the property Nos. 3, 4 and 6 but, however, dismissed the suit filed by the plaintiff No. 2 Smt. Sajjan Bai in toto. The learned trial Court also dismissed the suit of the plaintiffs in regard to the property No. 5 and held that the suit property was of the exclusive ownership of Ganesh Lal. 3, 4 and 6 but, however, dismissed the suit filed by the plaintiff No. 2 Smt. Sajjan Bai in toto. The learned trial Court also dismissed the suit of the plaintiffs in regard to the property No. 5 and held that the suit property was of the exclusive ownership of Ganesh Lal. The learned trial Court also dismissed the plaintiffs' suit in regard to the properties No. 1 and part of property No. 2 by holding that the appellants redeemed the suit property after the expiry of the period of limitation and this property, therefore, could not be made available of partition amongst the other heirs and original mortgagors. Dissatisfied with the decree and judgment dated 22-3-1971 passed by the learned Civil Judge, Udaipur the plaintiffs preferred an appeal before the learned District Judge Udaipur. The contesting defendants namely Ganesh Lal, Mohal Lal, Harak Lal and Kanhaiya Lal filed the cross-objections in the appeal so far as the decree of the trial Court was against them. The learned District Judge, Udaipur, partly allowed the appeal filed by the plaintiffs but he did not pass any order, regarding the cross objections filed by appellants and, therefore, they filed a review petition before the learned District Judge. It is against this decree and judgement dated 29.6.1976 partly allowing the appeal filed by the plaintiffs that the appellants have preferred this second appeal. Defendant Nos. 1 and 2 filed cross-objections. Defendant No. 9/1 Bhanwar Lal also filed cross-objection. As the appeal and the two cross-objections arise out of the same decree and judgment, all these three are being decided by this common judgment. 3. The first contention raised by the learned counsel for the appellants is that the property No. 1 and part of the property No. 2 were redeemed by the appellants after the expiry of the period of limitation, and, therefore, the mortgage ceases to subsist and as such the appellants or the other co-laterals have no right to get their share in the period of limitation and the mortgagors title comes to an end. According to the learned Counsel for the appellants, the property No. 1 and part of the property No. 2 were obtained by the appellants from the former mortgagees on payment of money in the years 1962 and 1963 after the redemption had become time barred, could not be made available for redemption by other co-mortgagors and such mortgage could not have been revived in the years 1962 and 1963. The property acquired by the appellants after the period of limitation could not enure for the benefit of the other co-lateral heirs including the plaintiffs. The second limb of the argument of the learned counsel for the appellants is that the plaintiffs could have filed a suit within the period of 60 years from the date of the mortgage and the present suit is clearly barred by time and deserves to be dismissed. 4. I have considered the submission made by the learned counsel for the parties. 5. The expiry of the period of limitation cannot take away the right of the party in the property. The law of limitation can neither destroy nor extinguish the rights of such a person. It only bars the remedy provided under the law and disentitles the aggrieved party to file a suit for redemption. But if the co-mortgagor redeemed the property after expiry of the period of limitation by making payment of the mortgage-amount then the rights of the co-mortgagors in such property, which has been redeemed by the co-mortgagor, cannot be extinguished or destroyed and the right-accrues to the non-redeeming co-mortgagors in property so redeemed. Once the mortgage is redeemed, the relationship of mortgagor and the mortgage ceases to exist as the mortgage is extinguished, but so far as the rights of the mortgagees inter se are concerned, their rights and relationship cannot be affected. The redeeming co-mortgagor, under Section 92 of the Transfer of Property Act, is -conferred with a right of subrogation for realising the excess amount paid by him to redeem the mortgaged property of the other co-mortgagors and has got a right to contribution from the non-re-deemed co-mortgagors. When the redeeming co-mortgagor has a right of the non-redeeming co-mortgagors a corresponding contribution from the non-redeem co-mortgagor has a corresponding right to pay up their share and to get the delivery of the possession of the property. When the redeeming co-mortgagor has a right of the non-redeeming co-mortgagors a corresponding contribution from the non-redeem co-mortgagor has a corresponding right to pay up their share and to get the delivery of the possession of the property. He can redeem his property from co-mortgagor after making the payment of his share in the mortgaged property and the limitation for such suit is 12 years from the date of the mortgage has been redeemed and is covered by Article 62 (old Article 132) of the Limitation Act. The non-redeeming co-mortgagor can redeem his share in the property within 60 years under Article 61 (old Article 148) of the Limitation Act or within 12 years from the date of redemption as provided under Article 62 (old Article 132) of the Act and can file a suit. He can avail any of the period as suits to him. Admittedly in the present case the mortgage was redeemed on 25.12.62 and 23.1.63 and the present suit was filed on 26.7.65. The suit filed by the plaintiffs is therefore, within the period of 12 years from the date of redemption and was, therefore, within the limitation as per Article 62 (old Article 132) of the Limitation Act. It has been held by the Hon'ble Supreme Court in the case of : Valimna Champaka Pillai v. Sivathana Pillai and Others, AIR 1979 Supreme Court 1937 , as under : "Where one co-mortgagor gets the right to contribution against the other co-mortgagor by paying off the entire mortgage debt, a correlated right also accrues to the latter to redeem his share of the property and get its possession on payment of his share of the liability to the former. This corresponding right of the non-redeeming co-mortgagor, to pay his share of the liability and get possession of his property from the redeeming co-mortgagor, subsists as the latter's right to contribution subsists". This corresponding right of the non-redeeming co-mortgagor, to pay his share of the liability and get possession of his property from the redeeming co-mortgagor, subsists as the latter's right to contribution subsists". It has been further observed by the Hon'ble Supreme Court in this case as under:- "Since subrogation of the redeeming co-mortgagor would give him the right under the original mortgagee to hold the non-redeeming do-mortgagor's property as security to get himself reimbursed for the amount paid by him in excess of his share of the liability, it follows that a suit for possession of his share or portion of the property, by a non-redeeming co-mortgagor on payment of the proportionate amount of the mortgage debt may be filed either within the period prescribed for a suit for redemption of the original mortgage or within the period prescribed for a suit for contribution by the redeeming co-mortgagor against the other co-mortgagor". It is thus, that non-redeeming co-mortgagor has got a right to get his property redeemed from the redeeming co-mortgagor who has redeemed the property from the mortgagee and the right to redeem the property arises only after the redemption by the co-mortgagor and the limitation of 12 years under Article 62, therefore, starts from the date of the redemption of the mortgaged property. The learned lower appellate Court, therefore, did not commit any illegality in deciding this issue against the defendant-appellants. The decree and judgment passed by the learned lower appellate Court, therefore, do not require any interference. 6. The next contention raised by the learned counsel for the appellants that the suit filed by the plaintiffs is only for partition and not for redemption of property and, therefore, no relief can be granted to the plaintiffs on this court. The decree and judgment passed by the learned lower appellate Court, therefore, do not require any interference. 6. The next contention raised by the learned counsel for the appellants that the suit filed by the plaintiffs is only for partition and not for redemption of property and, therefore, no relief can be granted to the plaintiffs on this court. Admittedly, in form, the suit of the plaintiffs is a suit for partition and possession and for determination of mutual rights and liabilities with respect to the mortgaged property but the claim of the plaintiffs non-redeeming co-mortgagor in the mortgaged property from the co-mortgagor who came into possession of the property in dispute after their redemption can be made only on the payment of his share of the mortgaged amount and the right of possession cannot be established without payment of their share in the property mortgaged as under Section 95 of the Transfer of Property Act, the redeeming co-mortgagor is subrogated to the right of the original mortgagee and, thus, in substance it is a suit for redemption. The learned lower appellate Court was, therefore, justified in passing the decree in favour of the plaintiffs. The contention raised by the learned counsel for the appellants, is, therefore, devoid of any force. 7. The next contention raised by the learned counsel for the appellant is that the finding of the learned lower Court that Laxmi Chand was alive when Smt. Anop Bai died and, therefore, he was co-lateral heir of Champa Lal, is clearly wrong and is based on no evidence. His further submission is that Champa Lal died before the death of Smt. Anop Bai and therefore Balu Lal (plaintiff No. 1) and defendant Nos. 5, 6, 7 and 8 who are successors in interest of Laxmi Chand have got no right in the property. I have considered the submission made by the learned counsel for the parties and perused the evidence produced by the parties and the judgment passed by the Court below. The learned lower appellate Court, while considering this aspect of the case, considered the evidence produced by both the parties in detail. I have considered the submission made by the learned counsel for the parties and perused the evidence produced by the parties and the judgment passed by the Court below. The learned lower appellate Court, while considering this aspect of the case, considered the evidence produced by both the parties in detail. While considering this aspect of the case, the learned lower appellate Court observed that the question regarding the death of Laxmi Chand before the expiry of Smt. Anop Bai was not taken in the written statement and even no cross-examination to the witnesses produced by the plaintiffs was made on this point. The learned lower appellate Court, also discussed the evidence produced by both the parties. He took into consideration the evidence of DW1 Harak Lal and disbelieved him as he found the evidence of Harak Lal contrary to the stand taken by the defendants in the written statement(s). The learned lower appellate Court, also considered the evidence of DW2 Ganesh Lal, DW3 Mohal Lal, DW4 Dileep Singh, DW9 Bhanwar Lal, DW10 Ratan Lal, DW11 Magan Lal and DW12 Vardi Shanker as well as of PW1 Belu Lal PW2 Banshi Lal, PW3 Ratan Lal and PW4 Shyam Sunder. After considering the evidence of these witnesses in detail, the learned lower appellate Court observed that the evidence produced by the plaintiffs appears to be more weighty and inspires confidence, while the evidence produced by the defendants is self-contradictory and does not inspire confidence. After considering the evidence on record, the learned lower appellate Court came to the conclusion that from the evidence produced by the parties, the defendants have failed to prove that Laxmi Chand died before the death of Smt. Anop Bai. The finding arrived at by the learned lower appellate Court are purely findings of facts and have been arrived at after due consideration of the legal evidence available on record. The findings of facts arrived at by the learned lower Court cannot be set aside in the second appeal if they are based on some legal evidence. The contention raised by the learned counsel for the appellant is, therefore, devoid of any merit. 8. The findings of facts arrived at by the learned lower Court cannot be set aside in the second appeal if they are based on some legal evidence. The contention raised by the learned counsel for the appellant is, therefore, devoid of any merit. 8. The next contention raised by the learned counsel for the appellants is that the learned trial Court rightly held that Gordhan Lal was not proved to be the son of Raghunath who was co-lateral of Champa Lal and therefore Gordhan Lal could not be the heir of Champa Lal. According to the learned lower appellate Court, without any rhyme or reason and without any basis, set aside the finding of the trial Court and as such the findings arrived at by the learned lower appellate Court, therefore, deserves to be quashed and set-aside and the suit of the plaintiff No. 2 Smt. Sajjan Bai deserves to be dismissed. The learned lower appellate Court, while deciding this issue, took into consideration the evidence produced by both his parties. He considered the evidence of DW2 Ganesh Lal and DW6 Ratan Lal Joggar. He also took into consideration Ex. DW6/1 the Bahi maintained by Ratan Lal as well as Ex. 7, Ex. 11, Ex. 12 and Ex. 13. The case of the defendants as put in their defence at the time of argument, is that Gordhan Lal went in adoption to Jalam Chand, and thus he became on a degree below than of other co-laterals. The Court below, after consideration of the evidence on record, observed that a new case has been set up by the defendants at a later stage and even this case was not put to the plaintiffs' witnesses in their cross-examination. Even this stand was not taken by DW2 Ganesh Lal in his statement before the Court. The learned lower appellate Court also did not place such reliance over the Bahi Ex. DW6/1 as there were several manipulations in the Bahi. The learned lower Court has considered the evidence in the right perspective and the findins arrived at by the learned lower appellate Court are purely findings of facts and based on the relevant consideration of the materials available on record and after due appreciation of the evidence. The evidence has been appreciated and considreed by the learned lower Court in the right perspective and does not require any interference. The evidence has been appreciated and considreed by the learned lower Court in the right perspective and does not require any interference. Moreover, the findings of facts arrived at by the learned lower Court, while sitting in the second appeal, are not to be reappreciated and disturbed if it is based on some legal evidence. 9. In the result, I do not find any merit in the appeal and the appeal, filed by the appellants, therefore, deserves to be dismissed. 10. Now, coming to the cross-objections filed by the plaintiffs-respondents. Their main case is that the property No. 5 mentioned in the Schedule 'Kha' belongs to Champa Lal and there is sufficient evidence on record to prove this fact. The learned trial Court, while deciding issue No. 3 observed that there is no documentary evidence pertaining to the title of the property mentioned at serial No. 5 and it is admitted in the plaint that the defendant No. 1 was in possession of the plot in dispute and has constructed a house thereupon six years prior to the date of the institution of the suit. Defendant Ganesh Lal has specifically stated that the property belongs to his father and he received the same in succession and built up a house thereupon. The Trial Court further observed that the plaintiffs failed to prove that this house belongs to Champa Lal. The evidence on this point was rightly considered by the learned Trial Court and the findings arrived at by the learned Trial Court were not challenged before the learned lower appellate Court and the decree and judgment passed by the learned lower Court on this point were affirmed by the learned lower appellate Court. A specific question No. 3 was framed by the learned lower appellate Court for its determination but the learned counsel for the plaintiffs did not seriously contest this issue and admitted that the plaintiffs have failed to prove their case so far as the property No. 5 is concerned. No documents showing the ownership of Champa Lal with respect to the property No. 5 and the findings arrived at by the Courts below are purely findings of facts and do not require any interference. The cross-objections filed by the plaintiffs-respondents are, therefore, devoid of any force and deserve to be dismissed. 11. Now, I take up the cross-objections filed on behalf of the respondent No. 9/1 viz. The cross-objections filed by the plaintiffs-respondents are, therefore, devoid of any force and deserve to be dismissed. 11. Now, I take up the cross-objections filed on behalf of the respondent No. 9/1 viz. Bhanwar Lal. The contention of the learned counsel for the respondent on this point is that the learned Trial Court has committed an error in distributing the share of Mansukh Lal who died in Samvat year 1953 when only Magan Lal was alive in the tine of Nathji and therefore he alone was entitled to receive the share of Mansukh Lal because other co-sharers except Magan Lal died before Samvat year 2011. Magan Lal was the uncle and the other claimants were off spring of his uncle and, therefore, Magan Lal's right was in preference to the other claimants. His further submission is that Magan Lal died in Samavat year 2011 and his share was inherited by his daughter Raj Kanwar. Raj Kanwar died on 5.9.75 and after her death, the cross-objectors inherited her share as such the share of Mansukh Lal should go in favour of cross-objectors alone and the others are not entitled to get his share. The learned lower Court has considered this aspect of the case on the basis of the evidence available on, record and rightly distributed the share of Mansukh Lal amongst the other five co-laterals. The findings arrived at by the learned lower Court are purely are findings of fact and based on legal evidence on record The findings of fact arrived at by the learned lower Court cannot be disturbed if it is based on some legal evidence. The property has been rightly distributed in the shares of five co-laterals and the decree and judgment passed by the learned lower Court, therefore, do not require any interference. 12. In the result, I do not find any merit either in the appeal or the cross-objections filed by the plaintiffs-respondents and the same are, therefore, dismissed. No order as to costs.Appeal dismissed. *******