The absence of a time limit for redemption in a mortgage deed does not foreclose the right of redemption, and the right to seek redemption arises when the mortgagor pays or tenders the mortgage money.

JITENDRA CHAUHAN, J.

1. This regular second appeal has been filed by the defendants against the judgment and decree dated 15.12.1986, passed by Additional District Judge, Hoshiarpur vide which the appeal filed by the plaintiffs was allowed and set aside the judgment and decree dated 24.01.1986, passed by the trial Court whereby, the suit of the plaintiffs was dismissed.

2. For the sake of convenience, the parties are referred to as they are mentioned in the judgment of the trial Court.

3. The brief facts of the case are that the plaintiffs filed suit for declaration to the effect that they are owners of the land measuring 14 kanals 8 marlas fully detailed in the head note of the plaint situated in Village Bhater, H.B. No. 608, Tehsil Dasuya as per jamabandi for the year 1981-82 and they are in possession of land as co-sharers in the Khata and the rights of the defendants have extinguished by lapse of time and operation of law. The defendants have ceased to be owner/cosharer in the above said land and in the alternative suit for possession of this land. The suit land was mortgaged by one Beli predecessor-in-interest of the defendants in favour of Bhagat Ram and Ram Chand sons of Nand Lal for consideration of Rs. 500/- vide registered mortgage deed dated 23.02.1933. The mortgagees were put in possession of the land. The plaintiffs are successors-in-interest of the said mortgagees. The cause for redeeming the land accrued to the defendants on 23.02.1933 and expired on 31.12.1970 but the defendants failed to get the suit land redeemed. Thus, by operation of law, the plaintiffs have become owners of the suit land and they continued to be the owners since 31.12.1970 onwards. Hence the suit for foreclosure of right of redemption.

4. Upon notice, the defendants appeared and filed written statement contesting the suit. The stand taken by the defendants was that the plaintiffs never came into possession over the suit land. The execution of mortgage deed dated 23.02.1933 was admitted. However, the land in dispute was immediately redeemed and necessary entry has been incorporated in the jamabandi for the year 1935-36 but the mortgage deed was not returned to the defendants-mortgagors on the pretext that the said deed had been lost somewhere. The defendants are in continuous possession of the suit land. The entries showing the plaintiffs to be Gair-marusis in the revenue record are wrong and incorrect.

5. After appraisal of the evidence, the learned trial Court dismissed the suit holding that the defendants-mortgagors never parted with their possession over the suit land. The possession remained with the defendants throughout.

6. Feeling aggrieved, the plaintiffs filed appeal before Additional District Judge, Hoshiarpur. The first Appellate Court allowed the appeal and set aside the judgment and decree passed by the trial Court. The suit filed by the plaintiffs was decreed. The First Appellate Court held that the plaintiff-mortgagees were put in possession over the suit land however, the defendants remained in possession of the suit land as tenant under the plaintiffs. The possession under the law is deemed to be that of the plaintiffs mortgagees being landlords. Since the mortgaged land was not redeemed within a period of limitation, the mortgagors had lost their right to get the land redeemed. Consequently, the mortgagees have become owners of the suit land by efflux of time.

7. Feeling dissatisfied, the defendants have filed the instant regular second appeal against the judgment and decree passed by the lower Appellate Court.

8. On behalf of the defendants, it is contended that the Ex.P-1, the mortgage deed dated 23.02.1933, was usufructuary mortgage. The possession of the land, as per the case of the plaintiffs, was delivered to them. Since, the mortgage was usufructuary one, no period of limitation is applicable in the present case. In other words, the contention is that the mortgage being usufructuary is not governed by any period