21.04.2025 Shiv Narain and others v. CORAM: HON’BLE
Case Details
RSA-1549-1989 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-1549-1989 (O&M) Reserved on: 28.03.2025 Pronounced on:21.04.2025 Shiv Narain and others ...Appellant(s) Ishwar Dutt and others ...Respondent(s) Vs. CORAM: HON’BLE MS. JUSTICE NIDHI GUPTA Present:- Mr. Ashish Aggarwal, Sr. Advocate with Ms. Pooja Sareen, Advocate for the appellants. Mr. M.L.Sarin, Sr. Advocate with Ms. Hemani Sarin, Advocate for respondent No.1. *** NIDHI GUPTA, J. The plaintiffs No. 1 to 3 and 5 to 7 are in second appeal against the concurrent judgments and decrees of the learned Courts below, whereby the suit filed by the plaintiffs for declaration and injunction, has been dismissed by both the Courts below. 2. The parties shall hereinafter be referred to as per their status before the learned trial Court i.e. the appellants/plaintiffs No. 1 to 3 and 5 to 7 are ‘the plaintiffs’; and respondent No.1 is the ‘defendant’. 3. Brief facts of the case as pleaded in the plaint are that the agricultural land measuring 166 Kanals-14 Marlas comprised in Khewat No.147 bearing rect.No.35 killa Nos.6,15,16,24,25 Rect. No.36 Killa Nos. 10,21, Rect. No.40 Killa Nos. 1,2,9/1,10-11,20,21/1 Rect. No.41 killa Nos.5,6,15,16,24,25 Rect. No.65 Killa Nos. 4,5/1,7/1, Rect. Nos.353, 616, RSA-1549-1989 (O&M) - 2 - situated within the revenue estate of Songal was owned and possessed by Shri Teju, father of plaintiffs no. 1 to 3, 5 and 6, father-in-law of plaintiff No.4, and husband of plaintiff No.7. Said Teju died on 5.10.1978 and his estate including the aforementioned agricultural land, was succeeded by the plaintiffs and in this way the plaintiffs became owners in possession of the aforesaid property. It is further alleged that the defendant, claiming himself to be the mortgagee of 1/2 share of the said land, has installed a tubewell in killa no.5 of Rect. No.41. However, as per further pleadings, no part of the said land was ever mortgaged by the plaintiffs or any of their predecessors with the defendant or any of his predecessors, and thus any entry to that effect in the revenue record is against the facts and law. The defendant has entered into joint possession of the agricultural land measuring 70 Kanals 10 Marlas bearing Rect. No.35 killa No.6,15,16 Rect. No.40 Killa No.1,2 Rect. No.41 Killa Nos.5,6,24, and 25. It is alleged that the defendant, under the colour of the wrong entry of mortgage in his favour has threatened to interfere into the possession of the plaintiffs over the suit property i.e. land measuring 96 Kanals-13 Marlas as detailed in para No.8 of the plaint. Thus, through the present suit filed on 10.05.1983, the plaintiffs have sought issuance of: a) a decree for declaration to the effect that they are owners of the suit land without any encumbrances; b) a decree for prohibitory injunction restraining the defendants from interfering into the possession of the plaintiffs over the land measuring 96 Kanals 13 Marlas detailed in para No.8 of the plaint; and RSA-1549-1989 (O&M) - 3 - c) a decree for exclusive possession of the land measuring 70 Kanals 10 Marlas detailed in para-No.6 of the plaint. 4. Upon notice, the defendant/respondent no.1 herein, had resisted the suit by filing written statement dated 03.06.1983. Besides formal objections, defendant had pleaded that predecessor-in-interest of the plaintiffs Teju son of Mohli was not the owner of the entire agricultural land mentioned in the plaint; rather he was owner of 1/2 share out of the said suit land. Other 1/2 share thereof belonged to his uncle Sh. Mam Chand son of Ramdyal, who had in his lifetime, mortgaged his 1/2 share in favour of Father of defendant namely Deoti Ram son of Rikhi Ram for a sum of Rs.7,000/-. The said mortgage dated 15.08.1926 was oral in nature and possession was also delivered to the defendant/mortgagee. It was further stated in the written statement that in this respect mutation No. 217 was also attested on 28.12.1927. Possession of the mortgaged land was also delivered by mortgagor Mam Chand in favour of the defendant as mortgagee; and after his death, the defendant is continuously in possession of the mortgaged land. It was further pleaded that plaintiff has no right, title or interest in the 1/2 share as the only right of equity of redemption stood distinguished by prescription as the mortgaged land had not been redeemed within limitation. It was further stated that the said mortgage had not so far been redeemed; and therefore, by the lapse of time, the
Facts
defendant had become owner of 1/2 share of the total land measuring 166 Kanal 14 Marlas by prescription. Exclusive possession of the land measuring 96 Kanals 13 Marlas in favour of the plaintiff was denied. RSA-1549-1989 (O&M) - 4 - 5. In response to the same, the plaintiff had filed first replication dated 13.06.1983 mentioning that mutation of the alleged mortgage was non-existent, bogus and result of fraud between the father of the defendant and the revenue authorities. It was further stated in the first replication that as the defendant was claiming ownership of the property on the basis of mortgage, he be asked to furnish the terms and conditions of the mortgage. 6. On the basis of the pleadings of the parties, following issues were framed vide order dated 15.06.1983:- 1. Whether the plaintiffs are in exclusive possession of the land measuring 96 Kls 13 Mls as detailed in para No.8 of the plaint? OPP. 2. Whether the entry of mortgage in favour of the defendant is wrong, if so to what effect ? OPP 3. 4. 5. 6. Whether the plaintiffs are owners of the suit property? OPP Whether the suit is within limitation? OPP Whether the suit is not maintainable? OPD Whether the suit is barred by time? OPD 7. Relief. 7. Subsequently, the plaintiff had moved application to amend his replication, which was allowed pursuant to which additional issue No.4-A was was framed on 30.10.1987, which reads as under: - “4-A. Whether the plaintiff is entitled to redeem the suit land as alleged? OPP” 8. Upon appraisal of the pleadings and the evidence led by the parties, the ld. trial Court decided Issue No. 1 against the plaintiffs; Issues No. 2, 3, 4, 4-A and 6 were decided against the plaintiffs and in favour of the defendant; Issue No. 5 in favour of the defendant and against the plaintiffs; RSA-1549-1989 (O&M) - 5 - and accordingly, vide judgment and decree dated 04.12.1987, the learned trial Court dismissed the suit of the plaintiffs with costs. The appeal filed by the plaintiffs was also dismissed by the learned Additional District Judge, Kurukshetra vide judgment and decree dated 05.12.1988, thereby affirming the findings as recorded by the learned trial Court in the judgment and decree dated 04.12.1987. Hence, the present second appeal by the plaintiffs. 9. Learned Senior counsel appearing on behalf of the appellants/plaintiffs submits that the present case is covered by the 3-Judge Bench judgment of the Hon’ble Supreme Court in “Singh Ram v. Sheo Ram” (SC) : Law Finder Doc Id # 603373, affirming the view taken by a Full Bench
Legal Reasoning
of this Court in “Ram Kishan and others vs. Sheo Ram and others,” Law Finder Doc Id # 135963 holding that in a usufructuary mortgage i.e. mortgage in which possession of land is delivered, no time limit is fixed for redemption of the mortgage. It is submitted that as per the said judgments the mortgager has a right to seek redemption at any time on payment of mortgage debt; and period of limitation of 30 years for redemption under the Limitation Act is not applicable. It is contended that the said legal position is well settled by the above said judgments; and therefore, the present case is fully covered by the above said judgments. 10. It is further submitted by learned Senior counsel that the present is a case of usufructuary mortgage is established from the fact that admittedly, possession was handed over to the defendant at the time of RSA-1549-1989 (O&M) - 6 - mortgage itself. It is submitted that this fact has been admitted by the defendant himself that possession was handed over to the defendant. It is pointed out that it has been pleaded by the defendant in para No.2 and para-No.5 of reply on merits in the written statement that on the date of mortgage i.e. 15.08.1926, possession of the suit land was delivered to the defendant. Even from the admission of the defendant in their reply to the amended replication, it is quite evident that the mortgage was usufructuary mortgage; and therefore, the submission that the right of redemption has been extinguished by lapse of time is not tenable. It is reiterated that in Para Nos. 2 and 5 of the written statement, the defendants have admitted that the land was mortgaged 'with possession' in favour of their father for Rs. 7000/- on 15.08.1926 vide Mutation No. 217 attested on 28.12.1927. It is contended that all these facts conclusively proved that the nature of the
Decision
mortgage was usufructuary and in view of the above said position of law, there is no limitation to seek redemption and hence the suit of the plaintiffs deserves to be decreed. 11. Learned Senior counsel for the plaintiffs further elaborates that as per Section 58 (d) of the Transfer of Property Act, 1882, it is expressly mentioned that where the mortgagor delivers possession, or expressly or by implication binds himself to deliver possession of the mortgage property, such mortgage is usufructuary mortgage. Section 58(d) is reproduced as under: - "S.58(d) Usufructuary mortgage- Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgage property to the mortgagee, and RSA-1549-1989 (O&M) - 7 - authorities 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 partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.” 12. Learned Senior counsel for the plaintiffs submits that consequentially, the findings of both the Courts below to the effect that the suit of the plaintiff was barred by limitation, are unsustainable and are based on the old law. It is contended that as demonstrated above, it is now established law by way of Full Bench judgment of this Court, as also by judgment of the Hon’ble Supreme Court in Sheo Ram’s case (supra) that there is no period of limitation for redeeming usufructuary mortgage. 13. It is then argued that it has been wrongly observed by the learned Trial Court in Para 6 of the impugned judgement dated 4.12.1987, that the plaintiffs have failed to prove their exclusive possession over the suit land measuring 96K 13M. It is contended that however, the said observation implies that the defendant is in exclusive possession of the suit land; and hence the plaintiffs are entitled to redeem the mortgage. It is reiterated that in a Usufructuary mortgage i.e. mortgage with possession of land, there is no time limit fixed for redemption. Mortgagor has the right to seek redemption at any time on Payment of mortgage debt. Period of 30 years limitation for redemption under Limitation Act will not be not applicable. 14. Learned Senior Counsel for the plaintiffs further submits that replication is a part of the pleading, and if a plea is taken in replication, it RSA-1549-1989 (O&M) - 8 - will be taken to have been pleaded in the case/suit itself. In support, reliance is placed upon the following judgments: AIR 1977 P&H 68 (DB), Jag Dutta Vs. Smt. Savitri Devi; AIR 1978 PLJ 137 (SB), Punjab State Vs. Gram Panchayat Mallah; and AIR 1983 (P&H) 197 (SB), Mateshwar Dayal Vs. Amar Singh. It is argued that this being the law, the plaintiffs are entitled for redemption of mortgage as has been averred by them in Para No.5 of the Amended Replication. The plea of the defendant that the factum of the redemption of mortgage was not mentioned in the plaint is clearly brushed aside by the law laid down in the judgments above and the pleading made in Para 5 of the Amended Replication has to be considered. 15. Learned Senior Counsel for the plaintiffs lastly submits that it is established principle of law that a party should have full opportunity to produce its evidence and to contest his case, irrespective of the fact whether the plea in question is taken or not, and whether there is any issue framed regarding the plea in question. In this regard, learned, Senior Counsel relies upon the following judgements: AIR 1964 SC 164; AIR 1966