JUDGMENT
Hemant Gupta, J.
1. The defendants are in second appeal aggrieved against the judgment and decree passed by the Courts below whereby suit for possession by way of redemption of land measuring 21 Kanals 7 Marias was decreed.
2. One Inder Singh was owner o f agricultural I and m easure 21 kanals 7 marlas which was mortgaged with defendant Nos. 1 to 5 for a consideration of Rs.3,000/- vide mortgage deed dated 7.7.1996. After the death of Inder Singh, the land was inherited by his three sons, namely, Niranjan Singh, Jarnail Singh and Balwant Singh and three daughters, namely, Mano, Gango and Charno in equal shares. The plaintiffs purchased the land measuring 5 kanals 10 marlas vide sale deed dated 26.11.1976 from Mano and Charno; Land measuring 2 kanals 10 marlas purchased by the plaintiff vide sale deed dated 14.12.1976 from Gango. Niranjan Singh sold land measuring 4 kanals vide sale deed dated 6.1.1978 to plaintiff No.2. A sum of Rs. 1,000/- in respect of first sale and Rs. 500/- each in respect of second and third sale was kept by the vendee towards the payment of mortgage amount. Thus, the plaintiffs purchased 12 kanals out of mortgaged land and filed suit for possession by way of redemption after payment of the entire mortgage amount of Rs. 3,000/-.
3. One of the plea raised by the defendants was that Jarnail Singh, one of the sons of Inder Singh, had borrowed a sum of Rs.1,300/- from defendant Nos. 1 and 3 on 11.4.1979 and he executed a pronote for consideration of debt and that he authorised defendant Nos. 2 and 3 to cultivate the land measuring 5 kanals comprised in khasra No.55/17.
4. The following issues were framed by the trial Court out of the pleadings of the parties:-
1. Whether Inder Singh mortgaged the land in suit with t he defendants vide mortgage deed dated 7.7.1966?
2. Whether the plaintiffs have a right to redeem the land in suit, if so, on payment of what amount? OPP
3. Whether Jarnail Singh received a sum of Rs.1,300/- from the defendants as alleged in preliminary objection of the written statement, if so, its effect? OPD
4. Relief.
5. Both the Courts below have decreed the suit holding that the land was mortgaged by Inder Singh in favour of defendants vide mortgage deed dated 7.7.1966 and that the plaintiffs have a right to redeem the entire mortgaged land on payment of Rs. 3,000/~. In respect of Issue No. 3, it was held that the defendants have failed to produce the original pronote scribed by Bhupinder Singh DW-1 and attested by Sohan Singh DW-2 and, therefore, no reliance can be placed on the oral testimony of the defendants. Such findings were affirmed in appeal by the learned first Appellate Court.
6. In second appeal, learned counsel for the appellant has vehemently argued that the defendants have produced evidence in respect of execution of pronote by Jarnail Singh, one of the legal heirs of Inder Singh, on 11.4.1979 and that the defendants were given the right to cultivate the suit land in lieu of the interest thereof and, therefore, the appellants cannot seek possession from the defendants to the extent of such land as their possession is that of lessee in respect of land measuring 5 kanals. Reliance is placed upon the decision of the Supreme Court in Gopalan Krishankutty v. Kunjamma Pillai Sarojini Amma and Ors., A.I.R. 1996 S.C. 1659. Learned Counsel for the appellants has also argued that the plaintiffs have purchased only 12 kanals of land but the plaintiffs cannot seek possession of the entire land measuring 21 kanals 7 marlas by way of redemption.
7. I do not find any merit in the argument raised by learned counsel for the appellants. The original pronote has not been produced, What are the terms and conditions of the pronote cannot be proved by oral evidence. Even if the evidence of the scribe and the attesting witness is to be believed, it will only be that a sum of Rs. 1,300/- was borrowed by Jarnail Singh, it does not necessarily mean that possession of the land was also handed over to the appellants to cultivate the same in lieu of the interest of the said amount advanced. Still further, even if the possession of the appellants is in lieu of the interest payable on the loan amount, still the possession of the appellants shall not be that of lessee but only a permissive possession. The appellants are the mortgagees and claimed to have advanced some loan and in lieu of interest were allowed to cultivate 5 kanals of land. Such assertion is not sufficient to create lease. In fact, the judgment referred to by the learned counsel for the appellants deals with the situation of surrender of leasehold rights after execution of usufructuary mortgage but in the present case the appellants have pleaded lease by the mortgagee. On facts, the appellants are not proved to be the lessees on the basis of evidence led.
8. The argument that the plaintiff cannot redeem more than the land purchased by the plaintiffs is again misconceived. The entire land i.e. 21 kanals 7 marlas was mortgaged. The plaintiffs cannot seek partial redemption. The equity of redemption cannot be broken. Therefore, the plaintiffs have rightly sought payment of the entire mortgage amount and consequently sought redemption of the entire land. The claim of the appellants as mortgagee is in respect of the amount secured. Once the entire mortgage amount is deposited by the plaintiffs, it is not open to the appellants to allege that the plaintiffs are not entitled to redeem the entire land. Therefore, I am unable to agree with the said argument raised by learned counsel for the appellants.
In view of the above, I do not find that any substantial question of law arises in the present appeal for consideration of this Court.
No merit, dismissed.
