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2010 DIGILAW 2594 (PNJ)

Sawan Ram v. Amarjeet Singh

2010-09-09

L.N.MITTAL

body2010
Judgment L.N.Mittal, J. 1. CM No. 10595.C of 2010 Allowed as prayed for. CM No. 10597.C of 2010 Allowed as prayed for. CM No. 10598.C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 17 days in refiling the appeal is condoned. RSA 3600 of 2010 By this common order, I am disposing of two appeals i.e. RSA No. 3600 of 2010 and RSA No. 3601 of 2010, both titled Sawan Ram and others v. Amarjeet Singh and another. These two appeals have arisen out of two suits. One suit was instituted by Joginder Singh (since deceased and represented by respondents as his legal representatives) against the appellants for possession of the suit land by redemption of mortgage thereof whereas other suit was filed by the appellants against Joginder Singh seeking declaration that they have become owners of the suit land as the mortgage was not redeemed within limitation period of 30 years. 2. Admittedly, Harbaj was owner of the suit land. He mortgaged the suit land with possession with Karta Ram alias Kartara (predecessor of the appellants) vide mortgage dated 5.10.1961 for Rs 475/- and handed over possession of the suit land to the mortgagee. Harbaj thereafter sold the suit land to Joginder Singh vide sale deed dated 25.5.1965 and thus, Joginder Singh became mortgagor. On the death of mortgagee Karta Ram alias Kartara in the year 1994, the appellants inherited mortgagee rights in the suit land. 3. Appellants in their suit pleaded that since the mortgage was not redeemed within limitation period of 30 years, appellants being mortgagees have become owners of the suit land and Joginder Singh was left with no right, title or interest therein. 4. On the other hand, Joginder Singh sought redemption of the mortgage alleging that the mortgage was for ten years i.e. upto 5.10.1971 and thereafter, the mortgage could be redeemed within 30 years i.e. upto 4.10.2001. Consequently, Joginder Singh sought possession of the suit land by redemption of mortgage thereof. 5. Learned Civil Judge (Junior Division) Jagadhri vide common judgment dated 15.9.2009 dismissed the suit filed by the appellants herein and decreed the suit filed by Joginder Singh for possession by redemption of the mortgage of the suit land and passed preliminary decree of redemption. Consequently, Joginder Singh sought possession of the suit land by redemption of mortgage thereof. 5. Learned Civil Judge (Junior Division) Jagadhri vide common judgment dated 15.9.2009 dismissed the suit filed by the appellants herein and decreed the suit filed by Joginder Singh for possession by redemption of the mortgage of the suit land and passed preliminary decree of redemption. Two separate first appeals preferred by appellants herein against judgment and decrees of the trial court have been dismissed by learned District Judge, Yamuna Nagar vide common judgment and decrees dated 12.4.2010. Feeling aggrieved, instant two second appeals have been preferred. 6. I have heard learned counsel for the appellants and perused the case file. 7. Learned counsel for the appellants contended that limitation period of 30 years for redemption of mortgage expired on 5.10.1991 and therefore, Joginder Singh was left with no right to redeem the mortgage and appellants being mortgagees of the suit land became owners thereof. The contention cannot be accepted. Full Bench of this Court in the case of Ram Kishan and others v. Sheo Ram and others, 1 (2008-1) PLR 1 held that right to seek redemption of usufructuary mortgage would not arise on the date of mortgage but would arise on the date when the mortgagor was to pay or tender the mortgage money to the mortgagee or was to deposit the same in the court when no time limit is fixed to seek redemption. It was, thus, held that in the case of usufructuary mortgage if no time is fixed for redemption of mortgage, there is no limitation period for redeeming the same. However, if some period is fixed for redemption of the mortgage, the right to redeem or to seek possession would accrue on expiry of the said period and limitation period of 30 years would start running from that point of time. In the instant cases, according to Joginder Singh mortgagor, mortgage was to be redeemed after 10 years. If that were so, the limitation period for redemption of mortgage commenced on 5.10.1971 on expiry of 10 years from the date of mortgage and redemption suit filed on 8.6.1999 by Joginder Singh was within limitation. In the instant cases, according to Joginder Singh mortgagor, mortgage was to be redeemed after 10 years. If that were so, the limitation period for redemption of mortgage commenced on 5.10.1971 on expiry of 10 years from the date of mortgage and redemption suit filed on 8.6.1999 by Joginder Singh was within limitation. On the contrary, if the aforesaid version of Joginder Singh is not accepted and it is assumed that no period was fixed for redemption of mortgage then in view of Full Bench judgment of this Court in the case of Ram Kishan (supra) there was no limitation period for redemption of the mortgage which was admittedly usufructuary mortgage. Thus, in either event redemption sought by Joginder Singh was not time barred nor the appellants-mortgagees became owners of the suit land by efflux of time. 8. Learned counsel for the appellants contended that limitation period for seeking possession of the suit land was 12 years as possession of appellants became un-author- ized after period for redemption of mortgage expired. The contention is completely misconceived and absurd. Admittedly suit land was under mortgage with the appellants and consequently, the suit for possession by redemption of mortgage would not be governed by Article 65 of the Schedule to Limitation Act, 1963 . On the contrary, the limitation period for redemption of mortgage is prescribed under Article 61 (a) of the Schedule to the Limitation Act, 1963 and the said limitation period is 30 years. The said provision has been interpreted by Full Bench of this Court in the case of Ram Kishan (supra) and in view thereof, there was no limitation period for redemption of the mortgage if no period had been fixed for redemption thereof as per terms of the mortgage. It is, thus, manifest that redemption suit filed by Joginder Singh has been rightly decreed by both the courts below and the suit filed by the appellants that they have become owners of the suit land by efflux of time on account of non-redemption of mortgage has been rightly dismissed. There is no illegality or infirmity in the judgments of the courts below warranting interference in second appeals. No question of law much less substantial question of law arises for determination in the instant second appeals. For the reasons aforesaid, I find no merit in the appeals. Accordingly, both the appeals are dismissed in limine.