Research › Search › Judgment

Punjab High Court · body

2010 DIGILAW 606 (PNJ)

Malkiat Singh v. Jagir Singh

2010-01-25

VINOD K.SHARMA

body2010
Judgment Vinod K.Sharma, J. 1. This regular second appeal by the defendant/appellant is directed against the judgment and decree dated 4.1.1984 passed by the learned courts below vide which suit filed by the plaintiff/respondents for declaration claiming the right of ownership in the property with express of time due to non-redemption of mortgage stands decreed. RSA No.1410 of 1984 2 plaintiff/respondents filed a suit for declaration to the effect that they are owners in possession of land measuring 1 kanal 7 marlas in the area of village shankar Tehsil Nakodar with share in tube-well etc. and other incidental rights of ownership in the land. Pleaded case of the plaintiff/respondents was that maya Singh, predecessor-in-interest of defendant-appellant was owner of Killa no.73/1 (2k 14m) Khewat and Khatauni No.200/674 and he mortgaged this land in favour of Milkha Singh son of Gopal Singh vide mutation No.574 sanctioned on 29.6.1922 for Rs.600/- (Rupees six hundred only) on the basis of registered mortgage deed dated 22.3.1922. Possession of the land was delivered by the predecessor-in-interest of the defendant-appellant on 22.3.1922 to the mortgagee. It was also the case of the plaintiffs that the land in dispute was allotted in lieu of originally mortgaged land. Case of the plaintiffs was that maya Singh or his heirs i. e. defendant-appellant did not care to get the land redeemed within the stipulated period i. e. up to 31.12.1970 i. e. the period allowed for this redemption with the result that the plaintiff had become full owner by extinguishment of right of redemption and by lapse of time on 31.12.1970. The case of the plaintiff was that the defendant/appellant was asked many a times to admit the claim of the plaintiff but they refused to do so and therefore, necessity arose to file the suit. Only defendants No.1 to 6 contested the suit, whereas other defendants were proceeded ex parte. 2. Preliminary objection was raised that the name of the father of jhalman Singh defendant was Ganga Singh and therefore, the plaint RSA No.1410 of 1984 3 required amendment, otherwise, it was liable to be dismissed. Similarly, it was mentioned that names of other parties were also wrongly mentioned. It was claimed that son of Maya Singh had sold his share of land to banta Singh son of Didar Singh. Similarly, it was mentioned that names of other parties were also wrongly mentioned. It was claimed that son of Maya Singh had sold his share of land to banta Singh son of Didar Singh. So Chanan Singhs widow Smt. Gurmej Kaur and banta Singh vendees successor were not made party to the suit and therefore, the suit was liable to be dismissed. It was the case of the defendant-respondents that the plaintiff admitted and made an acknowledgment in writing about the existence of mortgage specifically and thereby the liability of the property to be redeemed on the basis of admission and acknowledge was still in existence. It was the case of the defendant-appellant that in the consolidation proceedings in the year 1961- 62 land was allotted on the basis of admission and acknowledgment, hence the limitation for redemption had not expired. The suit was said to be, therefore, not maintainable. It was also the case set up by the defendant/appellant that acknowledgment of redemption was made when chanan Singhs vendee made payment of mortgage money to the plaintiff/respondent in the year 1962-63 and possession of the land was delivered to him. 3. On merit, it was denied that the land was mortgaged with the predecessor-in-interest of the plaintiffs. It was again reiterated that limitation to redeem the property was still available and therefore, suit was not competent in view of the acknowledgment made. In the replication, the plaintiff/respondents reiterated the averments made in the plaint and denied those made in the written RSA No.1410 of 1984 4 statement. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the plaintiff has become owner by extinguishment of rights or redemption? OPP 2. Whether the suit is bad for non-joinder of necessary parties as per allegations contained in para Nos.2 and 3 of preliminary objection of written statement? OPD 3. Whether the plaint required amendment as given in preliminary objection No.1 of the written statement? OPD 4. If issue No.1 is proved, whether the plaintiff ever acknowledged the liability to redeemed the land as per section 18 of the Indian limitation Act, 1963? OPD 5. Relief. 4. On appreciation of evidence, learned courts below have recorded a concurrent finding of fact that the plaintiffs/respondents became owners of the land by extinguishment of right of redemption due to passage of time. OPD 5. Relief. 4. On appreciation of evidence, learned courts below have recorded a concurrent finding of fact that the plaintiffs/respondents became owners of the land by extinguishment of right of redemption due to passage of time. Suit was held to be not bad for non-joining of necessary parties. It was also held that the suit did not require any amendment. It was also held that there was no acknowledgment of the plaintiff/respondents regarding liability to redeem as per Sec.18 of the Limitation Act, 1963 . Consequently, the suit was decreed. 5. Learned counsel for the appellant contends that this appeal raises the following substantial questions of law for consideration by this court: 1. Whether usufructuary mortgage could mature into ownership with passage of time? 2. Whether in the absence of term of mortgage having been proved on record could the limitation period start. . . . . . right of. . . , as alleged in the plaint? 6. Learned counsel for the appellant in support of substantial questions of law contended that as admittedly possession of the mortgage land was handed over to the plaintiff/respondents, therefore, it was usufructuary mortgage and therefore, there was no limitation to redeem the land. The learned courts below, therefore, committed an error to hold that the plaintiffs had become owners of the land in dispute with lapse of time on the part of the defendant/appellant to redeem the same. In support of this contention, learned counsel for the appellant also placed reliance on the Full Bench judgment of this court in the case of Ram Kishan and Ors. Vs. Sheo Ram and Ors.2008 (1)RCR (Civil) 334, wherein Full Bench of this court has held as under:- "42. 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 RSA No.1410 of 1984 6 mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof. Thus, it is held that one a mortgage always a mortgage and is always redeemable. " 7. Thus, it is held that one a mortgage always a mortgage and is always redeemable. " 7. It is also the contention of the learned counsel for the appellant that in this case plaintiff/respondents failed to lead any evidence with regard to the terms of mortgage and therefore, the contention that the mortgage could be redeemed by a date mentioned in the plaint could not be starting point of limitation to non-suit the defendant/appellant and to declare the plaintiff as owners of the land in dispute. In view of the authoritative pronouncement of this court in the case of Ram Kishan and Ors. Vs. Sheo Ram and Ors. (supra)substantial questions of law are answered in favour of the appellant and against the respondents. 8. Consequently, this appeal is allowed. The judgment and decree passed by the learned courts below are set aside and the suit filed by the plaintiffs is dismissed. No costs.