Ibrahim And Others v. Chao Khan And Another S

RAM CHAND GUPTA, J. (Oral)

C.M No. 13174 of 2010

In view of the facts mentioned in the application, delay of 164 days in filing the appeal is condoned.

Application stands disposed of accordingly.

C.M No. 13173 of 2010

In view of the facts mentioned in the application, delay of 142 days in refiling the appeal is condoned.

Application stands disposed of accordingly.

RSA No. 4374 of 2010

The present regular second appeal has been filed against judgment and decree dated 30.3.2009 passed by learned Additional District Judge, Nuh, dismissing appeal filed by appellants-plaintiffs against judgment and decree dated 25.9.2008 passed by learned Civil Judge, Junior Division, Ferozepur Jhirka, 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.

Briefly stated, present suit has been filed by appellants-plaintiffs for declaration with consequential relief of permanent injunction alleging that they and their predecessors-in-interest have been continuing mortgagees in possession of the agricultural land in dispute for the last more than 60 years under the defendants and their predecessors-in-interest and that as mortgage has not been redeemed within prescribed period of limitation hence, they have become owners in possession.

Suit was contested by respondents-defendants by taking the plea that mortgage was already redeemed and now they are in possession as owners.

Suit filed by appellants-plaintiffs was dismissed by learned trial Court by holding that once a mortgage always a mortgage and that appellants-plaintiffs cannot become owners in possession of the suit land. Appeal filed by appellants-plaintiffs against the said judgment and decree was also dismissed by observing that no time period was fixed to get the suit land redeemed and that appellants-plaintiffs have failed to prove actual date of mortgage as well as terms and conditions of the mortgage.

Learned first appellate Court dismissed the appeal filed by appellants-plaintiffs by placing reliance upon a Full Bench judgment of this Court rendered in Ram Kishan v. Sheo Ram, 2008 (1) PLR 1, wherein it has been held 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 v. 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. 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…..’”

Hence, in view of these facts, it cannot be said that any illegality has been committed by the Courts below in passing the impugned judgments and decrees. Finding recorded by the 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.