Important point
Right to redeem a mortgage cannot be taken away and Court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage.

Judgment

Arijit Pasayat, J.—Judgment of a learned Single Judge of the Punjab and Haryana High Court dismissing the second appeal filed by the appellant under Section 100 of the Code of Civil Procedure, 1908 (in short the ‘Code’) is the subject matter of challenge.

2. Background facts sans unnecessary details are as follows:

A suit was instituted by the appellant against the defendants seeking decree of declaration to the effect that the plaintiff had become the owner in possession to the extent of 1/2 share and defendants 2 and 3 have become owner and possession of the balance suit property, on the ground of foreclosure since limitation for redemption of the land had expired. Consequential relief of permanent injunction, for restraining defendant No. 1 from alienating the suit land and in any manner from interfering with the peaceful possession of plaintiff and defendants 2 and 3 was sought for.

3. Specific stand of the plaintiff was that forefathers of the plaintiff alongwith forefathers of Prem and Lakhpat sons of Banswari took the land in suit as mortgagees from the ancestors of Bhira about more than 100 years ago, and since then they have continued to be in possession of the suit land as mortgagees. Therefore, the plaintiff and defendants No. 2 and 3 are in cultivating possession of the suit land since Smt. Patori daughter of Nanha has not been seen and heard by the plaintiff since he attained majority and her name has been wrongly shown by Halqa Patwari in place of Banwari son of Nanha due to clerical mistake. That plaintiff and defendants No. 2 & 3 have become owner in possession of the suit land by way of adverse possession. The suit land has not been redeemed yet and period of limitation of sixty years had already expired. Therefore, the plaintiff and defendant Nos. 2 & 3 have become owners in possession of the suit land whereas the defendant No. 1 has no right, title or interest in the suit land, but he alleges that he procured a decree in his favour against Shri Bhira and has become the owner of the suit land. In fact, Shri Bhira and no other person had any title to pass a better title than he had. Hence, the alleged decree is not binding on the rights of the plaintiff. The plaintiff several times asked the defendant No. 1 to admit the plaintiff and defendants No. 2 and 3 to be owner in possession of the suit land and also not to interfere into the peaceful possession of the plaintiff and also not to create any charge thereon, but he was acting and did not pay any heed to the said advice.

4. Defendant No. 1 filed his written statement raising a preliminary objection that in the original plaint, the plaintiff claimed himself to be exclusive owner in possession of the suit land by way of adverse possession, but in the present plaint he is claiming only half share. Hence the plaintiff cannot be allowed to take contradictory stands and the suit is liable to be dismissed on this score alone and the plaintiff cannot claim any relief for defendant Nos. 2 and 3. The plaint is vague since the details of mortgage are not given in the plaint and the plaintiff as well as defendant Nos. 2 & 3 are not owners in possession of any part of the suit land, the suit is not maintainable in the present form and plaintiff has no locus-standi to file the present suit; the suit is bad for non-joinder of Bhira as necessary party and the plaintiff has not come to the court with clean hands and prayed for the dismissal of the suit. Plaint is vague since description of the mortgage is not given in the plaint and the plaintiff and defendant Nos. 2 & 3 have no concern whatsoever with the ownership and possession of the suit land whereas the defendant No. 1 is owner in possession of the suit land vide mutation No. 4728 dated 18.8.1984. The defendant No. 1 got the suit land redeemed after paying redemption money of Rs. 99/- to the plaintiff and plaintiff and other defendants have no concern whatsoever with the ownership and possession of the suit land. H