The main legal point established is that the limitation for redemption should be reckoned from the date of the actual execution of the mortgage, and in the absence of a prescribed limitation for redemption of a usufructuary mortgage, there is no limitation for redemption.

Per Deepak Gupta, J. (Oral):-This appeal is directed against the judgment of a learned Single Judge of this Court, dated 25.8.2008, passed in CWP No.814 of 2003. The appellants before us had filed the writ petition, which has led to the filing of the present appeal.

2. The brief facts of the case are that the respondents No.3 to 5 are the successors of the original mortgagors and are referred to hereinafter as “the mortgagors”. The appellants are the successors of the original mortgagee and are referred to by the said term.

3. Respondents No.3 to 5 filed an application under Section 4 of the H.P. Restitution of Mortgage Land Act, 1976 before the Collector, Sub Division, Dalhousie on 13.12.1983 for redemption of the mortgage and for restoration of the mortgaged land measuring 8 bighas and 17 biswas situated in Mohal Tika, Khewat No.45, Khatauni No.90, Khasra Nos. 956, 957 and 958. The case of the appellants is that Govind and Mingo, sons of Kapura, mortgaged the land in question prior to 5.5.1953 in favor of Rojgari, father of the present appellants. On 5.5.1953, one Tankiat No.42 was drafted. In this writing, it is recorded that Govind on 11.10.1952 had stated that the land was mortgaged with Rojgari for payment of Rs.60/- more than 8 years ago. Mutation on the basis of this document called Tankiat was attested on 24.12.1953 and entry of the mortgagees being in possession was made. The application for redemption of the mortgage and restoration of the land was dismissed by the Collector on 19.1.1987 on the ground that the limitation would start from 11.10.1952 and since the application was filed on 13.12.1983, more than 30 years after the creation of the mortgage, the same was not within limitation.

4. This order was set aside in appeal by the Divisional Commissioner, Kangra on 4.8.1988. The appellants herein filed an appeal before the Financial Commissioner, which appeal was dismissed by the learned Financial Commissioner on 12.8.2002, which led to the filing of the writ petition. Both the Divisional Commissioner as well as the Financial Commissioner held that the application for redemption was within time because the time for calculating the limitation was to commence from 24.12.1953 when the mutation regarding the mortgage was attested.

5. The appellants filed the writ petition in which the main ground urged was that the application for redemption was not within limitation since the period had to be calculated not from the date of attestation of mutation but from the date of creation of the mortgage or at least from the date when the statement was made and recorded in the Tankiat. The Tankiat was recorded on 5.5.1953. The statement of Govind is alleged to have been recorded on 11.10.1952 and the mortgage is alleged to have been created 8 years prior to the said date. Even if the date of execution of the writing (Tankiat) is taken into consideration, the application would not be within limitation if the period of limitation prescribed is 30 years.

6. We are of the considered view that if any limitation was prescribed, then the limitation could not be reckoned from the date of attestation of the mutation because there was a writing, evidencing the mortgage and if the period of limitation is reckoned from the date of writing, the application for redemption was not within limitation.

7. A mutation entry is merely a fiscal entry conferring no title on any party. It may be true that if there is no other document or evidence to show on which date the mortgage has been created, then the date of attestation of mortgage can be taken to be the effective date of mortgage. However, in case there is material on record to show that the mortgage was actually executed much prior to the attestation of the mutation, then the limitation has to be reckoned from the date of the actual execution of the mortgage. In the present case, the Tankiat is dated 5.5.1953. This is a writing wherein one of the mortgagors has himself admitted tha