The principles of subrogation and limitation applicable to a redeeming co-mortgagor.

1. The plaintiff-appellant has filed this appeal against the judgement and decree of the Additional District Judge, Karnal, dated July 24, 1970, whereby the decree of the trial Court dismissing his suit was maintained.

2. The appellant filed a suit against Sukh Lal and others defendants-respondents, for a declaration to the effect that he had become the owner of one-half share of the suit land and that the sale of a portion of the said land by Shrimati Patori in favour of Sukh Lal, respondent, on June 6, 1968, was not binding on him. It was alleged in the plaint that Data Ram was the original owner of the land and he mortgaged orally the suit land in favour of Jawahra for a sum of Rs. 440/- for which the mutation was sanctioned on Nov. 30, 1903. It was alleged that Data Ram died before 1947, and the appellant, Sukh Lal, respondent, and several others being his heirs, became the mortgagors qua the suit land. It was also alleged that Jawahra mortgagee also died before 1947 and Hardeva and others became the mortgagees being the heirs of Jawahra. The appellant and Sukh Lal, respondent, filed an application in the Court of the Revenue Assistant, Karnal, against the mortgagees for redemption of the mortgage and also deposited Rs. 440/-. By order of the Revenue Assistant dated May 8, 1947, the redemption was ordered in favour of the appellant and Sukh Lal, respondent. It was further alleged that the share of the mortgagors other than the appellant and Sukh Lal, respondent, came to be mortgaged with them and the possession of the land was also given to them. The mutation was sanctioned in their favour of June 9, 1947. According to the appellant, the mortgage was more than 60 years old at the time of sale by Shrimati Patori on June 6, 1968. So, he and Sukh Lal, respondent, had become the owners of the land, in suit, in equal shares and Shrimati Patori mortgagor had no right to sell the land inasmuch as she had lost all rights in the land by efflux of time. The sale made by Shrimati Patori mortgagor, to Sukh Lal, respondent, was not binding on him to the extent of one-half share. The suit was contested by the defendants-respondents on various grounds and on the pleadings of the parties, the following two preliminary issues were framed by the trial Courts :

1. Whether the persons recorded as mortgagors owners of the suit land are not necessary parties in his case?

2. It being the very case of the plaintiff that the share of mortgagors other than the plaintiff and defendant No.1 came to be mortgaged with the plaintiff and defendant No.1 in consequence of the redemption order obtained by them on May 8, 1947 whether the plaintiff can claim extinction of the right of redemption of this mortgage on the ground that the original mortgage by Data Ram was created in the year 1903?

3. Relief.

No finding was given on issue No.1, issue No.2 was found against the appellant and consequently, his suit was dismissed by the trial Court. In appeal, the finding of the trial Court on issue No.2 was maintained. Feeling aggrieved against the same, the appellant has come up in second appeal to this Court.

3. According to the findings of the lower appellate Court, the position of the other co-mortgagors was that of co-sharers with the mortgagors who redeemed the mortgage and, therefore, no question of extinction of the right of ownership, by lapse of time, arose in the present case. It was also held that the provisions of S.92 of the T.P. Act, (hereinafter called the Act) were not attracted to the present case in view of the authority of this Court reported in Janardhan Bhagwan Dass V/s. Sham Lal Nand Lal, AIR 1959 Punj 170, wherein, according to the learned Additional District Judge, it was held that the mortgagor, who has redeemed the whole mortgage, cannot be taken to have been subrogated to all the rights of the original mortgagees. The learned counsel for the appellant contended that both these findings, arrived at by the lower appellate Court, are