Rattan Lal & Ors. v. Karan Pal & Ors.

Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. N. D. Achint, Advocate for the appellants. L. N. MITTAL, J (ORAL) CM No.12609-C of 2009 For reasons mentioned in the application which is accompanied by affidavit, delay of 8 days in filing the appeal is condoned. Main Appeal Defendant Nos.2 and 17 to 20 have filed the instant second appeal having remained unsuccessful in both the Courts below. Respondent Nos.1 to 3 filed suit for possession of the suit land by redemption of two mortgages, against appellants and respondent Nos.4 to 18, alleging that the suit land described in paragraph 2(i) of the plaint was mortgaged with possession in favour of Braham Singh defendant No.16, Umrao and Mangat Ram for Rs.1500/- vide registered mortgage deed dated 25.04.1973 whereas the suit land described in paragraph 2(ii) of the plaint was mortgaged RSA No.4165 of 2009 (O & M) -2- with possession in favour of Braham Singh defendant No.16 and Leelu son of Umrao vide registered mortgage deed dated 31.07.1979 for Rs.4000/-, by Bhanwar Ji. Except Braham Singh defendant No.16, other mortgagees have since died and are represented by the remaining defendants as their legal representatives. The plaintiffs are successors-in-interest of the original owner-mortgagor Bhanwar Ji. The defendants on demand refused to redeem the mortgages. Only defendant Nos.2 and 17 to 20 (appellants herein) contested the suit. It was denied that plaintiffs are successors of Bhanwar Ji. However, mortgages created by Bhanwar Ji were admitted. Counter-claim was lodged by defendant Nos.17 to 20 alleging that they have become owners of the mortgaged land by efflux of time as the mortgage was not redeemed within 30 years. Learned Additional Civil Judge (Senior Division), Gurgaon vide judgment and decree dated 12.12.2008 decreed the suit of plaintiffs for possession of the suit land by redemption of both mortgages on payment of mortgage money. Counter-claim filed by the contesting defendants was dismissed. First appeal preferred by defendant Nos.2 and 17 to 20 has been dismissed by learned Additional District Judge, Gurgaon vide judgment and decree dated

02.04.2009. Feeling aggrieved, the contesting defendants have preferred the instant second appeal. I have heard learned counsel for the appellants and perused the case file. Factum of both the mortgages has been admitted by the contesting defendants. Their plea that they have become owners of RSA No.4165 of 2009 (O & M) -3- the mortgaged land by efflux of time as the mortgages were not redeemed within a period of 30 years is completely baseless because even the suit itself was instituted before expiry of period of 30 years. In addition thereto, in view of Full Bench Judgment of this Court in the case of Ram Kishan and others versus Sheo Ram and others, 2008 (1) RCR (Civil) 334, there is no limitation period for seeking redemption of usufructuary mortgage except in some circumstances noticed in the judgment. In view thereof also, claim of the contesting defendants cannot be accepted. Learned counsel for the appellants contended that in view of the provisions of the Redemption of Mortgages (Punjab) Act (in short, the Act), Civil Court has no jurisdiction to try the suit because the plaintiffs first did not approach the Collector under the Act for redemption of the mortgages. Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in the case of Harbans Singh and another versus Guran Ditta Singh and another, 1991 PLJ 312. The contention is completely devoid of merit. Provisions of the Act do not bar jurisdiction of the Civil Court in any manner. On the other hand, Act is a beneficial provision for the benefit of the mortgagor, providing a summary remedy for redemption of mortgage. However, the Act nowhere lays down that jurisdiction of Civil Court would be barred if the mortgagor does not first move the Collector under the Act for redemption of mortgage. Even the Hon’ble Supreme Court in the case of Harbans Singh (supra) has not laid down that jurisdiction of Civil Court would be barred if the mortgagor does not first approach the Collector for RSA No.4165 of 2009 (O & M) -4- redemption of mortgage under the Act. On the other hand, what has been laid down by Hon’ble Supreme Court in the case of Harbans Singh (supra) is that even after passing of order by the Collector under the Act, aggrieved party can approach the Civil Court. It is thus apparent that the aforesaid contention is completely devoid of merit. Learned counsel for the appellants next contended that a single suit was filed for redemption of two mortgages pertaining to different lands and different mortgagees created through two different mortgage deeds and, therefore, a single suit was not maintainable. This contention also cannot be accepted in the facts and circumstances of the instant case. Admittedly, no such objection was raised by the contesting defendants in their written statement. Consequently this contention even if deemed to be legal one cannot be allowed to be raised for the first time in the instant second appeal because if the contesting defendants had raised this plea in their written statement, the plaintiffs at the initial stage would have got opportunity to make option to prosecute the suit relating to one mortgage and to file a separate suit relating to the other mortgage. However, at this stage, it would not be appropriate to direct the plaintiffs to adopt this course, particularly because no prejudice is shown to have been caused to the appellants by filing of a single suit relating to two mortgages. In this context, it may be noticed that Braham Singh defendant No.16 is common mortgagee in both the mortgages whereas Leelu Singh the only other mortgagee in the second mortgage deed is none else, but son of Umrao Singh one of RSA No.4165 of 2009 (O & M) -5- the mortgagees in the first mortgage deed. It is thus apparent that the mortgagees of both the mortgage deed had common interest and not conflicting interest. For the reasons recorded hereinabove, I find no illegality in the judgments of the Courts below. No question of law much less substantial question of law arises for determination in the instant second appeal. The appeal is devoid of any merit and is accordingly dismissed in limine.

27.01.2010 A. Kaundal ( L. N. MITTAL ) JUDGE