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2008 DIGILAW 403 (PNJ)

Mohan Lal v. Shiv Kumar

2008-02-13

AJAY K.MITTAL

body2008
JUDGMENT Ajay Kumar Mittal, J. - This regular second appeal has been filed by the unsuccessful plaintiffs wherein they have challenged the judgment and decree dated 29.1.2007 passed by the first Appellate Court whereby the suit filed by them for declaration that they have become owner of land in dispute as defendants No. 1 to 7 have failed to get the mortgage redeemed and by efflux of time they have become owner in possession of the land in dispute has been dismissed. 2. Put shortly, the facts of the present case are that the plaintiffs filed a suit for a decree for declaration to the effect that they have become owner of the agricultural land comprised in Khewat/Khatauni No. 179/307, Khasra Nos. 61(4-0), 64(4-0) total measuring 8 Kanals as per jamabandi for the year 1992- 93, situated in the area of village Tandwal, Tehsil Barara, District Ambala due to its non-redemption by the defendants and that they be recorded as owners instead of mortgagees of the same in the revenue record by deleting the entries showing the defendants as owners thereof and as a consequential relief a decree for permanent injunction restraining the defendants from interfering with the ownership and possession of the plaintiff over the suit land was also prayed. It was pleaded that Zhana son of Bhagwana, the predecessor-in-interest of the defendants was owner of the suit land, who mortgaged the same with the plaintiffs in the year of 1961 for a sum of Rs. 800/- by means of mutation No. 1528 and the plaintiffs are in actual possession of the suit land since then. The mortgage has not been redeemed. It was further pleaded that the period of 30 years since 13.1.1961 has expired and, therefore, by efflux of time, the right, title and ownership of the defendants over the suit property has since been extinguished and the plaintiffs have become owners of the said land. Accordingly, the entries in the revenue record showing defendants No. 1 to 7 as mortgagors and the plaintiffs as mortgagees of the suit land have become redundant after 13.1.1991 and the same deserve to be rectified in the revenue record. 3. The averments made in the plaint were refuted by the defendants by filing two separate written statements, one by defendants No. 2 to 5 and another by defendants No. 6 to 11. 3. The averments made in the plaint were refuted by the defendants by filing two separate written statements, one by defendants No. 2 to 5 and another by defendants No. 6 to 11. Defendants No. 2 to 5 in their written statement denied the factum of mortgage of the suit property by their grand father. They pleaded that it their forefather had mortgaged the land with the plaintiffs, then the defendants would have got the same redeemed after attaining the age of majority. They denied that the plaintiffs have become the owners of the suit land by efflux of time as there is no limitation for redemption of a mortgage which extinguishes the right of defendants No. 2 to 5 to get the land redeemed. Defendants No. 6 to 11 raised preliminary objections and pleaded that they are owners and in possession of the suit land which they had purchased from the ancestors of defendants No. 1 to 5. It was further pleaded that at the time of purchasing the suit land there was no encumbrance on the land as the mortgage money was paid by the previous owners of the land and a receipt in this regard was obtained. It was denied that the land is still under mortgage and a prayer for dismissal of the suit was made. 4. The trial Court on appreciation of the evidence led by the parties held that the factum of mortgaging the suit property with possession to the plaintiffs by the predecessor-in-interest of defendants No. 1 to 5 was proved from the jamabandies for the year 1963 64 Ex.P-1 and Ex.P-2 wherein they had been shown to be in cultivating possession of the same as mortgagees whereas no documentary evidence was produced by defendants No. 6 to 11 to prove their cultivating possession over there. It was further held that the suit property was mortgaged on 13.1.1961 but the defendants had failed to get the same redeemed within the period of 30 years, prescribed therefor. Accordingly, the suit filed by the plaintiffs on 4.6.1998 was decreed by the trial Court vide judgment and decree dated 13.8.2004 declaring the plaintiffs owners of the agricultural land as mentioned above and they were ordered to be recorded as owners of the suit land in the jamabandi for the year 1992-93 instead of mortgagees, after deleting the names of the defendants from the column of ownership. 5. Being aggrieved defendants No. 6 to 11, purchaser of the suit land from defendants No. 1 to 5, filed an appeal and the lower appellate court vide judgment and decree dated 29.1.2007 accepted the appeal, set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiffs. Feeling dissatisfied the plaintiffs have approached this Court by way of present regular second appeal. 6. I have heard the learned counsel for the appellants and perused the record with his . assistance. 7. The solitary contention raised by the learned counsel for the appellants is that on the expiry of 30 years from the date of mortgage, the right of the plaintiffs had fructified into full ownership and they were no longer mortgagees and the trial Court had rightly decreed the suit. 8. The issue regarding limitation for redemption of mortgage in case of usufructuary mortgage is no longer res integra. A Full Bench of this Court in Ram Kishan and others v. Sheo Ram and others, (2008-1)149 P.L.R. 1 (F.B.) while dealing with a similar issue regarding usufructuary mortgage where no time limit had been fixed for redemption had set the controversy at rest by holding as under :- "Therefore, we answer the questions framed to hold that in case of usufructuary mortgage, where no time limit is fixed to seek redemption the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgage pays or tenders to the mortgagee or deposit in Court, the mortgage money or the balance thereof. Thus, it is held that once a mortgage always a mortgage and is always redeemable." In view of the above, there is no merit in this appeal and the same is hereby dismissed. Appeal dismissed.