The limitation to take possession of a property mortgaged by a mortgagor to a mortgagee does not commence until the mortgage money is repaid, and the right to redeem the property is not extinguished by efflux of time.

Amol Rattan Singh, J.

This appeal has been filed by two of the plaintiffs who had instituted a suit before the learned Additional Senior Sub Judge, Jalandhar, on 22.12.1980, seeking joint possession of land bearing khewat no.4, khatoni no.6, khasra nos.3//1/2 and khasra no.10, situated in village Mansurpur, Tehsil Jalandhar. The land is shown to be measuring 10 kanals and 2 marlas in the heading of the judgment of the learned Sub Judge, as also in the plaint, though the measurements of the aforesaid khasra numbers are given as 6 kanals 2 marlas and 5 kanals respectively, i.e. 11 kanals & 2 marlas.

2. In their plaint, the appellants had averred that Ishar Singh, father of the first appellant herein (Shangara Singh), was the owner of the land in dispute and had mortgaged it in favour of Onkar Singh, father of defendants no.1 to 4 (respondents No.1 to 4 herein) and husband of respondent no.5, vide a mortgage deed dated 04.08.1947, registered on 06.08.1947.

Ishar Singh is stated to have died leaving behind four sons, including the present appellant-plaintiff no.1, Shangara Singh, as also Kartar Singh, Chanan Singh and Darshan Singh. (It is to be noticed that the said Darshan Singh, brother of the first appellant-plaintiff, is a different person from the second appellant-plaintiff no.3, who is seen to be the son of Mahan Singh and not Ishar Singh). Kartar Singh executed a will in favour of Sukhdev Singh, respondent-defendant no.6 and Joginder Singh, both of whom are sons of the first appellant-plaintiff, Shangara Singh.

It is also to be noticed that in the suit instituted, Joginder Singh was a co-plaintiff with the present appellants, i.e. Shangara Singh and Darshan Singh, but is now impleaded as respondent no.7 in this appeal, as he was even in the first appeal filed by the present two appellants.

The third brother of the present appellants, i.e. Chanan Singh, is stated to have died without leaving behind any children or a widow. The 4th brother, Darshan Singh, is stated to have left behind Surinder Singh as his legal representative, who sold his share in favour of the present second appellant-plaintiff no.3, Darshan Singh son of Mahan Singh.

3. It was further contended by the plaintiffs that respondent no.6-Sukhdev Singh, son of appellant Shingara Singh and also a legal heir of the late Kartar Singh, paid the entire mortgage money to Resham Kaur (respondent-defendant no.5), widow of the mortgagee (Onkar Singh) and that Resham Kaur also issued a receipt to that effect on 19.06.1976. Thus, as per the plaintiffs, the land actually stood redeemed on that date but Resham Kaur, as contended, did not return the original mortgage deed.

Her sons and she, i.e. respondents no.1 to 5 herein, having been requested many times to deliver possession of the land but they having not done so, the suit came to be filed.

It was further contended that after the mortgage was entered into, consolidation proceedings took place in the village, with the suit land having been “formed” in lieu of the previous Khasra Nos. 858/59, as per the jamabandi for the years 1943-44.

4. Upon notice issued to them, defendants No. 1, 4 and 5, i.e. Ajmer Singh, Devinder Singh and Resham Kaur, contested the suit and pleaded that the plaintiffs are estopped by their own act and conduct from filing the suit, as Darshan Singh-plaintiff no.3 (present appellant no.2) had taken the suit property on lease from the defendants by executing a lease deed on 03.11.1980, thereby admitting that the property was still mortgaged with the defendants. Thus, it was contended that, in fact, it had never been got redeemed by the plaintiffs and as such, the suit was not maintainable.

Other preliminary objections with regard to improper Court fee, jurisdiction and locus were also taken by the respondents-defendants who otherwise admitted that Ishar Singh was the owner of land measuring 12 kanals 8 marlas falling in Khasra No.858/691 as entered in the jamabandi for the year 1942-43, which was mort