There is no limitation for filing a suit for redemption in case of a usufructuary mortgage.

Rajbir Sehrawat, J.

1. This is an appeal filed by the defendants in the original suit challenging the judgment and decree passed by the lower Appellate Court; which had reversed the judgment and decree passed by the Trial Court and had ordered the suit filed by the plaintiffs to be decreed.

2. For convenience, the parties would be referred herein as the plaintiffs and the defendants; as they were described in the original suit.

3. The brief facts of the case are that the plaintiffs/respondents No. 1 to 4 herein filed a suit for declaration that they have become the owner in possession of the agricultural land; total measuring 6 Kanals 16 marlas comprised in Killa no. 15/17 situated in revenue estate of Village Jawahari, District Sonepat. It was averred in the suit that one Jesse Ram, father of the defendants, was the owner in possession of the agricultural land situated in Village Yakian Wali, Tehsil Alipur, District Mazaffar Garh, now in Pakistan and he had mortgaged this land in favour of Lekh Raj, the father of the plaintiffs. During the partition, both the parties left Pakistan and migrated to India. In view of the agricultural land, left behind by Jesse Ram in Pakistan, he was allotted the agricultural land in India, the details of which are mentioned in the plaint and are as mentioned above. It was further averred that since the plaintiffs were the mortgagees over the holding of the defendants, therefore, they were given the mortgagee rights over the land allotted to the defendants in India. Accordingly, the entries were made in the revenue records. The plaintiffs further averred that Jesse Ram died on 01.02.1958 leaving behind Smt. Devi Bai and others. Devi Bai also died. This is how the present defendants are the successor-in-interest of mortgagor. The plaintiffs are successor-in-interest of Lekh Raj, mortgagee. The claim of the plaintiffs was based on the fact and with the averment that the mortgagor could have redeemed the equity of redemption only upto the period of 30 years from the date of mortgage. Since he has not done so, therefore, the plaintiffs have a right to foreclose the redemption and they are entitled to get the declaration having become owner in possession of the land mortgaged to them.

4. On being put to notice, the defendants had filed a written statement. In the written statement, the factum of mortgage was not denied. It was further averred that it was a usufructuary mortgage. Still further the defendants averred that the terms and conditions of the mortgage have not been mentioned by the plaintiffs in the suit. In the written statement, it was also pleaded that as per the mortgage, the usufruct of the mortgaged land was to be adjusted by the mortgagee towards the mortgage money for a period of 50 years from the date of creation of the mortgage. Accordingly, on the expiry of the period of 50 years from the date of mortgage, the mortgage amount was to be considered to have been fully paid and the mortgagee was required to hand over the property to the mortgagor free from all incumbrances. The defendants also claimed that since as per the terms of the mortgage, the mortgagor could not have redeemed the property for 50 years, therefore, they could not have filed a suit before that. Hence, the plaintiffs had got the cause of action.

5. On the pleadings of the parties, the Trial Court framed the following issues:-

1. “Whether Jessa Ram s/o Kanwar Bhan predecessor-in-interest of defendants was owner in possession of agricultural land situated in Village Yakian Wali Tehsil Alipur District Muzaffar Garh (West Pakistan)? OPP

2. Whether the suit land as mentioned in para No. 2 of the plaint was allotted in the name of Jessa Ram mortgagor subject to mortgagee rights of Lekh Raj, Mortgagee, predecessor-in-interest of plaintiffs? OPP

3. Whether Jesse Ram became owner of suit land as mentioned in para No. 3 of the plaint, as alleged? OPP

4. Whether after the death of Lekh Raj, plaintiffs are the only successor-