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2012 DIGILAW 1892 (PNJ)

Brahamwati v. Sat Parkash

2012-12-22

RAM CHAND GUPTA

body2012
Ram Chand Gupta, J.(Oral);— C.M.No.14566-C of 2011 In view of the facts mentioned in the application, the same is allowed and order dated 8.12.2011 dismissing the application in default is recalled. 2. Registry is directed to register the application at its original number. 3. Application stands disposed of accordingly. C.M.No.12960-C of 2011 4. In view of the facts mentioned in the application, the same is allowed and order dated 21.10.2010, dismissing the applications bearing C.M.Nos.11890-91-C of 2011 for non-prosecution is recalled. Registry is directed to register the applications at their original numbers. 5. Application stands disposed of accordingly. C.M.No.11890-C of 2011 6. In view of the facts mentioned in the application, delay of one day in filing the application for recalling of order dated 13.9.2011 for restoration of appeal is condoned. 7. Application stands disposed of accordingly. C.M.No.11891-C of 2011 8. In view of the facts mentioned in the application, the same is allowed and order dated 13.9.2011 dismissing the appeal in default is recalled. 9. Registry is directed to register the appeal at its original number. Application stands disposed of accordingly. C.M.Nos.7310-11-C of 2011 10. In view of the facts mentioned in the application, delay of 2 days in filing and 289 days in refiling the appeal is condoned. Both the applications stand disposed of accordingly. RSA No.2692 of 2011 11. The present regular second appeal has been filed against judgment and decree dated 15.1.2010 passed by learned Additional District Judge, Gurgaon, dismissing appeal filed by present appellants-plaintiffs against judgment and decree dated 27.7.2009 passed by learned Civil Judge (Junior Division), Gurgaon, dismissing suit filed by appellants-plaintiffs. I have heard learned counsel for the appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below. 12. Briefly stated, case of appellants-plaintiffs is that predecessorin- interest of defendants had mortgaged the land in dispute with possession with their father long ago and as respondents-defendants failed to get the same redeemed within a period of 30 years, they have acquired title of the land in dispute by foreclosure. 13. On appreciation of evidence, suit filed by appellants-plaintiffs was dismissed by learned trial Court. Appeal filed by appellants-plaintiffs against the said judgment and decree was also dismissed by learned Additional District Judge, Gurgaon. 14. 13. On appreciation of evidence, suit filed by appellants-plaintiffs was dismissed by learned trial Court. Appeal filed by appellants-plaintiffs against the said judgment and decree was also dismissed by learned Additional District Judge, Gurgaon. 14. Case of appellants-plaintiffs is that land in dispute was mortgaged with their father by predecessor-in-interest of respondentsdefendants and the same has not been redeemed even after expiry of 30 years. However, no time limit was fixed to seek redemption. It was held by Full Bench of this Court in Ram Kishan and others v. Sheo Ram and others, 2008 (1) PLR 1 , that when no time limit is fixed for seeking redemption, the right to seek redemption will arise on the date when the mortgagor pay or intends to pay the mortgaged money or deposit the same in the Court. The relevant paras of the judgment read as under:- “33. This Court has relied upon Panchanan Sharma's case (supra) and distinguished State of Punjab vs. Ram Rakha, (1997) 10 SCC 172 and held that usufructuary mortgage is always redeemable. The appeal of the mortgagee was dismissed by the Supreme Court in Harbans's case (supra) with a quote from Dr. Rashbehary Ghose's work, to the effect “that once a mortgage always a mortgage and is always redeemable”. 34. In Panchanan Sharma's case (supra), Hon'ble Supreme Court has held that if the deed gives time for redemption or adjustment of the rent or profits and liabilities in terms of the contract, the limitation for redemption would run from the date fixed in the mortgage deed. Otherwise, there is no limitation for redemption of usufructuary mortgage. It was held to the following effect:- “Though it is not necessary for the purpose of this case to go into the question whether Ramtahal Singh is a benamidar for the first defendant, suffice to state that by operation of S.76 (c), he is enjoined to pay land revenue to the Government and for the default committed by the mortgagee, when the property was sold, the mortgagor had not lost his right of redemption by the conduct and actions of the mortgagee. If the deed gives time for redemption or adjustment of the rent or profits and liabilities in terms of the contract read with the relevant provisions of the Act stood discharged, the limitation for would run from the date fixed in the mortgage deed. If the deed gives time for redemption or adjustment of the rent or profits and liabilities in terms of the contract read with the relevant provisions of the Act stood discharged, the limitation for would run from the date fixed in the mortgage deed. Otherwise, there is no limitation for redemption of usufructuary mortgage. The usufructuary mortgagor does not lose his title to the property or right to redemption by lapse of time.....'” 15. Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine.