Once a mortgage, always a mortgage and it is always redeemable.

JUDGMENT

Alka Sarin, J. - The present appeal has been preferred by the defendantappellant against the concurrent findings of both Courts below decreeing the suit for declaration filed by the plaintiff-respondent No.1.

2. The brief facts relevant to the present lis are that the present suit was filed by the plaintiff-respondent No.1 averring therein that the predecessors-in-interest of the plaintiff-respondent No.1 and the defendants were originally residents of Tehsil Dera Gazi Khan, which now forms a part of Pakistan, and that they migrated to India in 1947. It is the case set up by the plaintiff-respondent No.1 that Topan Ram predecessor-in-interest of the defendants had mortgaged with possession the land measuring 46 Kanals and 8 Marlas being 5/8th share in Village Yaru, Tehsil Dera Gazi Khan with Khota Ram father of Ladha Ram, plaintiff-respondent No.1, for a sum of Rs.2700/- by way of registered mortgage deed dated 03.07.1920. It is further the case that land measuring 25 kanals 15 marlas bearing Killa Nos.22/2 and 23 of Rect. No.107 and Killa Nos.3 and 8 of Rect. No.110 situated in Village Likhi, Tehsil Palwal, District Faridabad was allotted to Topan Ram and his successors-in-interest in lieu of the land which was mortgaged in Pakistan. It is further the averment that Topan Ram or his successors have failed to redeem the mortgage within a statutory period of 30 years and as such the plaintiff-respondent No.1 had become owner in possession of the land by lapse of time.

3. The suit was contested by the defendants wherein the mortgage was denied. On the basis of the pleadings of the parties, the following issues were framed :

1. Whether the plaintiff has become owner of the suit land by way of lapse of period of redemption as alleged ? OPP

2. Whether the suit is not maintainable in the present form ? OPD

3. Whether the plaintiff has no cause of action to file the present suit ? OPD

4. Whether the suit of the plaintiff is false and vague as alleged ? OPD

5. Whether the plaintiff has no locus-standi to file the present suit? OPD

6. Whether the suit has not been properly valued for purpose of court fee and jurisdiction ? OPD

7. Relief.

4. The Trial Court, vide judgment and decree dated 19.12.1988, decreed the suit. Aggrieved by the said judgment and decree an appeal was preferred by the defendant-appellant which appeal was dismissed vide judgment and decree dated 19.05.1989. Hence, the present regular second appeal.

5. Learned counsel for the defendant-appellant would contend that in the present case the pleadings as well as the evidence is woefully missing qua the tallying of the land involved in the mortgaged deed Ex.P/1 and the suit property. Learned counsel would further contend that there is not an iota of evidence to show that the land in the present suit was allotted in lieu of the land qua which the mortgage deed was executed.

6. Per contra, learned counsel for the plaintiff-respondent No.1 has contended that both the Courts below have concurrently found that the suit property was not redeemed within the statutory period of 30 years and hence the suit has rightly been decreed. According to counsel the suit property was allotted in lieu of the mortgaged property left by the defendants in Pakistan.

Heard.

7. The present suit has been filed by the plaintiff-respondent No.1 for a declaration that he has become owner in possession of the suit land by prescription of time as the suit property was not redeemed within a statutory period of 30 years. The Full Bench of this Court in the case of Ram Kishan & Ors. Vs. Sheo Ram & Ors. [2008 (1) RCR (Civil) 334] has held that once a mortgage always a mortgage and it is always redeemable. It has further been held as under :

'40. The limitation of 30 years under Article 61(a) begins to run "when the right to redeem or the possession accrues". The right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits are