RSA No.816 of 2007 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.816 of 2007
Date of Decision: 27.8.2009
Vaidik Sadhan Ashram ......Appellant
Versus
Shakil Hassan .......Respondent
CORAM: HON’BLE MR. JUSTICE HEMANT GUPTA.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Shri R.S. Mamli, Advocate, for the appellant.
Shri S.S. Dinarpur, Advocate, for the respondent.
HEMANT GUPTA, J. (Oral).
The defendant is in second appeal aggrieved against the
judgment and decree passed by the first Appellate Court, whereby suit for
possession by way of redemption of the land measuring 12 kanals 12 marlas
was decreed.
It is the case of the plaintiff that the land measuring 12 kanals
12 marlas was mortgaged against a sum of Rs.1500/-. The factum of
mortgage was incorporated in the revenue record vide mutation No.338
dated 25.12.1951. The mortgage amount was repaid to Swami Atma Nand,
the then President of the defendant, in the year 1962, but the defendant
continued in possession of the same. Thus, the plaintiff sought possession
of the suit land, which was once mortgaged in favour of the defendant.
RSA No.816 of 2007 (2)
In the written statement, the stand of the defendant-appellant
was that the plaintiff has lost right of redemption due to lapse of time and
that the defendant has become owner of the suit land. The payment of the
mortgage amount was denied. The defendant-appellant filed a counter claim
claiming declaration in respect of which the ownership and possession for
the suit property for the reason that limitation for redemption of mortgage
has expired.
The learned trial Court dismissed the suit, but the learned first
Appellate Court decreed the suit holding that there is no time limit for
redemption of usufructuary mortgage and consequently, the suit was
decreed on deposit of Rs.1500/-. Before the first Appellate Court, an
application was filed by the defendant to produce additional documents,
including certified copy of the mortgage deed No. 459 dated 21.6.1979
and mortgage deed No. 323 of March, 1951. The learned first Appellate
Court found that the defendant-respondent has sought to produce number of
documents in respect of initial mortgage, additional mortgage and sale of
mortgage rights etc., but there is no plea in the written statement or even in
the counter claim filed by the defendant about the initial mortgage by Alias
son of Khuda Baksh in favour of Chhajju son of Ghasitu Mal and/or about
the additional mortgage in favour of said Chaju Mal and the sale of the
mortgage rights by Mishri Lal etc. Therefore, in the absence of any
pleadings, the additional evidence cannot be allowed to be produced.
Learned counsel for the appellant in the present appeal has
vehemently argued that on the face of the document dated 3.7.1951, the
possession of the defendant cannot be said to be that of a mortgagee, but is
that as an owner. The said document conveys the title in the land which is
RSA No.816 of 2007 (3)
described as old khasra number 31 measuring 7 biswas 10 biswas, new
khasra number 37 measuring 7 bighas 10 biswas. Therefore, the plaintiff is
not entitled to possession of the suit property.
Learned counsel for the appellant could not point out that there
was any plea of ownership rights in the written statement, by purchase
vide the aforesaid document. In the absence of any such plea, the argument
in respect of the purchase, sought to be raised by the appellant cannot be
permitted to be raised for the first time in the second appeal. This is apart
from the objection raised by the learned counsel for the respondent that
numbers mentioned in the said document are different than that of which
the plaintiff has claimed possession of in the present suit.
The appeal was admitted on the following substantial question
of law:-
“Whether the right to seek redemption would arise on
the date of mortgage itself in case of usufructuary
mortgage when no time limit is fixed to seek
redemption?”
The said question has been answered by the Full Bench of this
Court in Ram Kishan and others v. Sheo Ram and others, 2008(1) PLR 1 to
the effect that in case of usufructuary mortgage, there is no time limit to
redeem the mortgage. It has been held that the principle `once a mortgage,
always a mortgage’ shall be applicable in the case of usufructuary mortgage.
Learned counsel for the appellant has argued that the plaintiff
has raised the plea of payment of mortgage amount in the year 1962 and the
said plea being not accepted by the Courts below, the suit for possession is
based upon title and not upon mortgage and thus, the same cannot be
entertained after expiry of 12 years. The said argument is not tenable.
RSA No.816 of 2007 (4)
Though the defendant has alleged payment of Rs.1500/- in 1962, but the
said payment is not proved. Therefore, the status of the parties will be
mortgagor and mortgagee alone. The first Appellate Court has rightly
decreed the suit for possession on payment of mortgage amount of
Rs.1500/-.
Consequently, I do not find any patent illegality or material
irregularity in the finding recorded or that the finding recorded gives rise to
any substantial question of law in the present second appeal.
Hence, the present appeal is dismissed.
[ HEMANT GUPTA ]
JUDGE
27.8.2009
ds