Point of law:
There is no time limit for usufructuary mortgagor to seek redemption and recovery of possession of immovable property mortgaged. Right to seek redemption would accrue not from the date of creation of mortgage but from date of payment of mortgage money out of usufructs or partly out of usufructs and partly on payment or deposit by mortgage as provided under Section 62 of the Transfer of Property Act.

JUDGMENT :

Prakash Gupta, J.

1. This second appeal under Section 100 CPC has been filed by the appellants-defendants (hereinafter referred to as 'the defendants') against the judgment and decree dated 6.1.2015 passed by the Addl. District Judge, Sawai Madhopur in Appeal No. 330/2009 (06/2007) (hereinafter referred to as 'the Appellate Court'), by which the appeal filed by the defendants has been dismissed and the judgment and decree dated 23.11.2006 passed by the Addl. Civil Judge (Sr. Division), Sawai Madhopur (hereinafter referred to as 'the Trial Court') in Civil Suit No. 138/2001 (247/85, 12/86, 289/96), decreeing the respondents-plaintiffs (hereinafter 'the plaintiffs') suit for redemption and possession, has been affirmed.

2. Facts of the case are that the plaintiffs filed a suit for redemption and possession of a shop, as described in para no.1 of the plaint. It was mentioned in the plaint that on 1.3.1956, the suit property was mortgaged by one Shri Narayan in favour of the defendant no. 1 in lieu of a consideration of Rs. 3500/-. The said mortgage deed was registered on 2.1.1957. The original plaintiff Kalyan Mal filed a suit against the aforesaid Shri Narayan, which was decreed by the Civil Judge vide its judgment and decree dated 28.1.1961. In execution proceedings, the suit property was put to auction by the executing court. On 3.3.1965, the suit property came in the hands of the original plaintiff and the auction proceedings came to an end. The sale was confirmed by the court concerned vide its order dated 10.7.1965. On confirmation of sale in favour of the plaintiff, in place of Shri Narayan, the original plaintiff became the mortgagor of defendant no. 1 (mortgagee). It was also mentioned in the suit that from the date of mortgage, the defendant no. 1 let out the suit property to defendant no. 2 and started obtaining rent. On account of having received more money than the money for which the suit property was mortgaged, the suit property automatically got redeemed. The original plaintiff sent a registered notice to the defendant on 17.12.1984, but defendant no. 1 neither handed over the possession of the suit property nor stopped receiving rent from defendant no. 2 who in turn did not discontinue paying the rent to defendant no. 1. In this view of the matter, suit for redemption and possession of the property was filed by the plaintiff.

3. The defendant no. 1 filed written statement denying the averments made in the plaint. It was denied that there was no relationship of mortgagor and mortgagee between the plaintiff and the defendant no.1. It was also submitted that the suit was not filed within the prescribed time of limitation. It was also submitted that towards interest on the mortgage amount, Shri Narayan had received the rent but Shri Narayan never repaid the rent. Thus, rent was due to be paid by Shri Narayan, which the defendant no. 1 was entitled to recover from Shri Narayan for the reason that the defendant no. 1 was having charge on the suit property. It was also submitted that at the time of mortgage, the suit shop was in a dilapidated condition. The defendant no. 1 incurred Rs. 5000/- on renovation of the suit property. It was further submitted that when Shri Narayan failed to repay the mortgage amount and could not redeem his charge over the suit property, he sold the same to the defendant no. 1 on 23.10.1964 for a consideration of Rs. 6000/-. It was further submitted that after sale of the suit property on 23.10.1964 by Shri Narayan, Shri Narayan continued to occupy the suit property as a tenant. When Shri Narayan did not pay a single penny towards rent, the defendant no. 1 filed a suit for eviction and recovery of rent against Shri Narayan. The Magistrate concerned, Sawai Madhopur considering the defendant no. 1 to be the owner of the suit property passed a judgment and decree for recovery of rent