Regular Second Appeal No. 1766 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Regular Second Appeal No. 1766 of 2007
Date of Decision: 19.1.2009
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Vidya Devi and others
..APPELLANTS
VS.
Jagtar Singh & Ors.
..RESPONDENTS
CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. R.K. Battas, Advocate
for the appellants.
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ARVIND KUMAR, J.
The appellants after having remained unsuccessful before the
two Courts below have preferred the instant Regular Second Appeal.
It emerges out from the record that the suit land was mortgaged
with Sukhdev Singh, Jaswant Singh and Bant Singh by the predecessor in
interest of defendant-respondents namely Mit Singh during the
consolidation proceedings. The said land was not redeemed despite lapse of
30 years, which led to the institution of the suit for declaration by the
successors of Sukhdev Singh and Bant Singh and personally by Jaswant
Singh claiming ownership of the suit land against the respondent-defendants
No.1 to 3 being legal representatives of Kirpal Singh son of Mit Singh, in
whose favour the suit land was devolved after the death of Mit Singh and
then to Kirpal Singh, with the averments that since the suit land has not
been re-deemed so far, they have become the owner of the suit land with the
efflux of time.
The learned trial court, in absence of evidence regarding
stipulation of any period within which the said land was to be re-deemed,
held that the mortgagor has a right to get the property redeemed at any time
and that the right of redemption is therefore, a statutory right which cannot
Regular Second Appeal No. 1766 of 2007 2
be fettered by any condition which impedes or prevents redemption and any
such condition has been held to be void as a clog of redemption. Similar
view was reiterated by the learned appellate court below by observing that
limitation of redemption would run from the date fixed in the mortgage deed
and if no period of limitation fixed, then the usufructuary mortgage can be
got redeemed at any time because the rights of usufructuary mortgagor does
not stand extinguished by lapse of time.
Nothing has been shown by learned counsel for the appellant to
take a contrary view. Even in the case of Ram Kishan & Ors. Vs. Sheo
Ram & Ors. 2008(1) RCR (Civil) 334, rendered by Full Bench of this
Court, it has been held that when no period of redemption was fixed and the
land was not redeemed for 60 years, the mortgagees do not become owners
by prescription and that once a mortgage always a mortgage and is always
redeemable. In the light of the legal proposition, referred to above, no
ground is made out to interfere with the concurrent findings of fact recorded
by both the Courts below. No substantial question of law, which is sine qua
non for admission of appeal is made out. The appeal is wholly without
merits and the same is accordingly dismissed in limine.
(ARVIND KUMAR)
JUDGE
January 19,2009
Jiten