A usufructuary mortgagor can redeem the mortgage at any time; the right is not extinguished by the passage of 30 years, as affirmed by the Supreme Court.

JUDGMENT :

Rakesh Kainthla, J.

1. The present appeal is directed against the judgment & decree dated 16.12.2014, passed by the learned District Judge, Hamirpur, District Hamirpur, H.P., (learned First Appellate Court), vide which the appeal filed by the respondent (plaintiff before the learned Trial Court) was allowed and the judgment and decree dated 12.9.2012, passed by learned Civil Judge (Senior Division), Court No. 1, Hamirpur, District Hamirpur, H.P. (learned Trial Court) was set-aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking possession by way of redemption of the mortgaged land comprised in Khata No.4, Khatauni No.4, Khasra Nos. 82, 94, 108, 110, 118, 136, 114, Kitta 7, measuring 35 kanal, 04 marla, situated in Tikka Ghanalkhurd, Mauza Bajuri, Tehsil and District Hamirpur, H.P. (hereinafter referred to as the ‘suit land’) on payment of Rs.2,000/- as redemption money. It was asserted that the suit land is owned by the plaintiff as a mortgagee, whereas the defendant is a mortgagor of the same. Suit land was mortgaged by the previous owner Lehna Singh with Dhani Ram for Rs.2,000/-. Mutation No.42, dated 23.8.1961 of the mortgage was attested in favour of Dhani Ram. Dhani Ram took possession of the mortgaged land. Dhani Ram sold his rights in favour of the defendant on 7.6.1967 by executing a sale deed. A mutation No. 54, dated 27.7.1967 was sanctioned to this effect. Lehna Singh executed a gift deed in favour of the plaintiff. Mutation No. 63, dated 21.12.1972 was sanctioned in his favour. The plaintiff requested the defendant repeatedly to take the redemption money and deliver the possession but in vain. Hence, the suit was filed to seek the relief mentioned above.

3. The suit was opposed by the defendant by filing a written statement, taking preliminary objections regarding lack of maintainability and cause of action, suit being liable to be stayed under Section 10 of CPC, suit being barred by limitation, the suit having not been properly valued for Court fees and jurisdiction and the suit being bad for non-joinder and mis- joinder of necessary parties. The contents of the plaint were admitted to the extent that the plaintiff is shown to be a mortgagee and the defendant is shown to be a mortgagor. It was also admitted that Dhani Ram sold his right to the defendant by executing a sale deed and Lehna Singh executed a Gift Deed in favour of the plaintiff. It was asserted that the mortgagor failed to redeem the suit land within the period of limitation and the defendant has become the owner of the suit land by efflux of time. The suit of the plaintiff is barred by limitation. Hence, it was prayed that the same be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. The learned Trial Court framed the following issues on 9.5.2011: -

1. Whether the plaintiff is entitled for decree of possession by way of redemption of the suit land, as alleged? OPP.

2. Whether the defendant has become owner of the suit land by efflux of time, as plaintiff has failed to redeem the suit land within the period of limitation? OPD.

3. Whether the suit not maintainable in present form? OPD.

4. Whether the present suit is liable to be stayed as per Section 10 of CPC? OPD.

5. Whether the plaintiff has no cause of action to file the present suit, as alleged? OPD.

6. Whether the suit is not properly valued for the purpose of Co