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2016 DIGILAW 2354 (PNJ)

Des Raj v. Roshan Lal

2016-08-30

JITENDRA CHAUHAN

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JUDGMENT : JITENDRA CHAUHAN, J. 1. This regular second appeal has been filed by the defendants against the judgment and decree dated 15.12.1986, passed by Additional District Judge, Hoshiarpur vide which the appeal filed by the plaintiffs was allowed and set aside the judgment and decree dated 24.01.1986, passed by the trial Court whereby, the suit of the plaintiffs was dismissed. 2. For the sake of convenience, the parties are referred to as they are mentioned in the judgment of the trial Court. 3. The brief facts of the case are that the plaintiffs filed suit for declaration to the effect that they are owners of the land measuring 14 kanals 8 marlas fully detailed in the head note of the plaint situated in Village Bhater, H.B. No. 608, Tehsil Dasuya as per jamabandi for the year 1981-82 and they are in possession of land as co-sharers in the Khata and the rights of the defendants have extinguished by lapse of time and operation of law. The defendants have ceased to be owner/cosharer in the above said land and in the alternative suit for possession of this land. The suit land was mortgaged by one Beli predecessor-in-interest of the defendants in favour of Bhagat Ram and Ram Chand sons of Nand Lal for consideration of Rs. 500/- vide registered mortgage deed dated 23.02.1933. The mortgagees were put in possession of the land. The plaintiffs are successors-in-interest of the said mortgagees. The cause for redeeming the land accrued to the defendants on 23.02.1933 and expired on 31.12.1970 but the defendants failed to get the suit land redeemed. Thus, by operation of law, the plaintiffs have become owners of the suit land and they continued to be the owners since 31.12.1970 onwards. Hence the suit for foreclosure of right of redemption. 4. Upon notice, the defendants appeared and filed written statement contesting the suit. The stand taken by the defendants was that the plaintiffs never came into possession over the suit land. The execution of mortgage deed dated 23.02.1933 was admitted. However, the land in dispute was immediately redeemed and necessary entry has been incorporated in the jamabandi for the year 1935-36 but the mortgage deed was not returned to the defendants-mortgagors on the pretext that the said deed had been lost somewhere. The defendants are in continuous possession of the suit land. However, the land in dispute was immediately redeemed and necessary entry has been incorporated in the jamabandi for the year 1935-36 but the mortgage deed was not returned to the defendants-mortgagors on the pretext that the said deed had been lost somewhere. The defendants are in continuous possession of the suit land. The entries showing the plaintiffs to be Gair-marusis in the revenue record are wrong and incorrect. 5. After appraisal of the evidence, the learned trial Court dismissed the suit holding that the defendants-mortgagors never parted with their possession over the suit land. The possession remained with the defendants throughout. 6. Feeling aggrieved, the plaintiffs filed appeal before Additional District Judge, Hoshiarpur. The first Appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court. The suit filed by the plaintiffs was decreed. The First Appellate Court held that the plaintiff-mortgagees were put in possession over the suit land however, the defendants remained in possession of the suit land as tenant under the plaintiffs. The possession under the law is deemed to be that of the plaintiffs mortgagees being landlords. Since the mortgaged land was not redeemed within a period of limitation, the mortgagors had lost their right to get the land redeemed. Consequently, the mortgagees have become owners of the suit land by efflux of time. 7. Feeling dissatisfied, the defendants have filed the instant regular second appeal against the judgment and decree passed by the lower Appellate Court. 8. On behalf of the defendants, it is contended that the Ex.P-1, the mortgage deed dated 23.02.1933, was usufructuary mortgage. The possession of the land, as per the case of the plaintiffs, was delivered to them. Since, the mortgage was usufructuary one, no period of limitation is applicable in the present case. In other words, the contention is that the mortgage being usufructuary is not governed by any period of limitation and the principle of 'once a mortgage always a mortgage' is applicable. The mortgagors can redeem the land at any point of time. The non-redemption of land within the period of 30 years does not clothe the mortgagees with a right of foreclosure. In support of the contention, He relies on authorities (i) Singh Ram (D) through LRs Vs. Sheo Ram and others 2014 (4) R.C.R. (Civil) 179 SC; (ii) Ram Kishan and others Vs. The non-redemption of land within the period of 30 years does not clothe the mortgagees with a right of foreclosure. In support of the contention, He relies on authorities (i) Singh Ram (D) through LRs Vs. Sheo Ram and others 2014 (4) R.C.R. (Civil) 179 SC; (ii) Ram Kishan and others Vs. Sheo Ram and others 2008 (1) R.C.R. (Civil) 334 P&H (iii) Smt. Jaspal Kaur Vs. Mahinder Singh and others 2010 (2) R.C.R. (Civil) 393 P&H. 9. On behalf of the plaintiffs, it is contended that mortgagors have failed to get the land redeemed within the prescribed period of limitation. The plaintiffs have become owners of the land by efflux of time as the right of the mortgagors to get the land redeemed stands foreclosed because no suit for redemption has been filed within a period of 30 years from the date of execution of the mortgage-deed. The mortgage in question is not usufructuary as a condition with regard to redemption was stipulated between the parties. It was stipulated that the land will be redeemed in the coming Jaistha i.e. in the month May-June, 1933. As the defendants have failed to get the land redeemed within the stipulated period, therefore, the defendants have lost their right over the suit land. 10. I have heard the learned counsel for the parties and have gone the case file. 11. The following substantial questions of law arise for consideration of this Court:- 1. Whether the suit for declaration by efflux of time is liable to be dismissed when no limitation for redemption of mortgage is mentioned in the Mortgage-Deed (Ex.P-1)? 2. Whether the lower appellate Court has misread and misinterpreted the evidence on record and the same has resulted into miscarriage of justice? 12. The magna carta of the case of the plaintiffs is the mortgage-deed dated 23.01.1933, Ex.P-1. The translation of Ex.P-1 (done by Translation Branch of this Court) reads as under:- “I, Beli Ram, aged 50 years s/o Maiya, caste Brahmin, occupation landlord, am a resident of village Bhater, police station Hajipur, Tehsil Dasuya. I am owner in possession of the land, in the capacity of owner and mortgagee as co-sharer in cultivation separately, measuring 14k-9m comprised in Khewat No.45-46, Khatauni Min 283-294, Khasra Nos. I am owner in possession of the land, in the capacity of owner and mortgagee as co-sharer in cultivation separately, measuring 14k-9m comprised in Khewat No.45-46, Khatauni Min 283-294, Khasra Nos. 2733/1083 (6-13), 843 (3-6), 926 Min (4-10), plots 3, type Barani, situated in the area of above-mentioned village, pertaining to jamabandi for the year 1931-32 as per fard of the Patrwari, entered on 17th January 1933 in the revenue record. Now, with my sweet will and while enjoying right five senses, I have mortgaged the above mentioned land with possession-which is in my ownership and lying mortgaged with me-to Bhagat Ram, aged 45 years and Ram Chand aged 40 years, sonss of Nand Lal, caste Brahmin, occupation land lord, residents of village Beh Mawa, famous as Rura, police station Hajipur, in lieu of Rs.500/-, half of which constitutes Rs.250/-. Out of the total mortgage money, the principle amount, after exempting the lump sum interest, which I owe to aforesaid Bhagat Ram, mortgagee, has been adjusted as per the writing entered in the bahi (account book) and the remaining mortgage money has been received from the mortgagees, through Bhagat Ram, mortgagee, present here in the office, and the possession of the land together with all kind of trees standing has been delivered today. Along the above-mentioned shamlat land, any amount of land which will fall in my share, as per share of holding, will be deemed as mortgaged. During the mortgage period, mortgagees will be able to benefit from the produce of the land including all kind of trees standing on the land, after paying the revenue. When I, the mortgagor will pay the mortgage money without any interest in the month of Jaishtha, I will get the land redeemed. Therefore, I have got this mortgage deed (with possession), in respect of agricultural land, scribed so that it may serve as an authority. Also, If I pay half of mortgage money, I will get half (of the land) redeemed. If the mortgaged land, partly or entirely, goes out of possession of mortgagee, without payment of mortgage money, on account of any reason, mortgagees will have the right to take same amount of land from my other khata as per their choice or they can recover the mortgage money out of my all types of property.” 13. If the mortgaged land, partly or entirely, goes out of possession of mortgagee, without payment of mortgage money, on account of any reason, mortgagees will have the right to take same amount of land from my other khata as per their choice or they can recover the mortgage money out of my all types of property.” 13. To appreciate the arguments of the learned counsel for the parties, it is relevant to reproduce Section 58(d) of the Transfer of Property Act which reads as under:- “(d) Usufructuary mortgage-Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.” 14. A perusal of the mortgage-deed (Ex.P-1) reflects that the parties stipulated that the mortgaged property would be redeemed in the month of Jaistha. Only the month 'Jaistha' has been mentioned and no 'year' has been mentioned. It appears that the month 'Jaistha' has been stipulated only because a crop year starts in the month of Jaistha and the mortgagee wanted to protect his right to have the land for the full crop year before redemption of the mortgage, which is a common practice. Redemption in-between when the crop is standing in the fields is even otherwise not practicable as in that situation the mortgagee is to suffer huge loss by way of losing the crop. In view of this, the contention of the learned counsel for the plaintiffs has no merit and hence rejected. In the absence of any time limit for redemption of the mortgaged property, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pays or tenders to the mortgagee the mortgage money or the balance thereof. Thus, it is held that once a mortgage always a mortgage and is always redeemable. The law on the point is contained in Singh Ram, Ram Kishan and Smt. Jaspal Kaur's cases (supra). Thus, it is held that once a mortgage always a mortgage and is always redeemable. The law on the point is contained in Singh Ram, Ram Kishan and Smt. Jaspal Kaur's cases (supra). No limitation for redemption of usufructuary mortgage is there unless the mortgage-deed fixes time for redemption. In the instant case, it is clear that no time was fixed for redemption of the mortgage. The principle of 'once a mortgage, always a mortgage' applies in this case and the same is always redeemable. 15. The First Appellate Court has rightly held that the plaintiff-mortgagees were put in possession over the suit land however, the defendants remained in possession of the suit land as tenant under the plaintiffs. It was also rightly observed that the possession under the law is deemed to be that of the plaintiff-mortgagees being landlords. However, the First appellate Court fell in error in accepting the contention of learned counsel for the plaintiffs that right of the mortgagors to get the land redeemed stands foreclosed because no suit for redemption has been filed within a period of 30 years from the date of execution of the mortgage-deed. 16. It is thus, clear that non-redemption of the land within the period of 30 years does not clothe the mortgagees with the right of foreclosure. This Court is in agreement with the contention of the learned counsel for the defendants that it is a case of usufructuary mortgage and in the absence of any time limit fixed in the mortgage-deed, the right to recover possession continues till the mortgage money is paid. 17. The substantial questions of law, reproduced above, are thus answered in favour of the defendants. Consequently, the appeal is allowed and the judgment and decree passed by the learned lower appellate Court are set aside and that of the trial Court, though on different grounds, are restored. Resultantly, the suit of the plaintiffs is dismissed with costs throughout.