A subsequent suit claiming foreclosure can be maintained if new grounds arise post-extinguishment of mortgage rights, despite previous dismissals of similar ownership claims.

JUDGMENT

VIRINDER AGGARWAL , J .

1. The appellants/plaintiffs filed suit for declaration along with consequential relief of permanent injunction on the allegations that Rulia father of plaintiffs/appellants was owner in possession of 133 Bighas 12 Biswas of land situated in village Bhorakh, Tehsil Pehowa District Kurukshetra. In the year 1919-20, Yamuna and Baru sons of Sidhu were made co-sharers in the suit land by Rulia by way of gift. Both Yamuna and Baru died issue-less and were succeeded by their mother Satehari @ Satari, who mortgaged the land to Lachhman. After death of Lachhman rights were inherited by his son Bhikhan, mutation No.365 was sanctioned in this regard. Bhikhan sold his mortgagee rights in favour of plaintiff by oral sale for a consideration of `60/-, Mutation No.573 was sanctioned in favour of plaintiff, during consolidation the land was converted into 115 Kanals 4 Marlas and was allotted to the plaintiff as mortgagee. Whereabouts of Satehri were not available and she was not heard for the last 20 years, she was presumed to be dead leaving behind no legal heir, so her estate was escheated to the State of Haryana and State of Haryana was recorded as owner mortgagor vide mutation No. 527.

2. Plaintiffs filed civil suit No.222 of 1972 for declaration that they are owners in possession with consequential relief of permanent injunction restraining defendant from dispossessing on the grounds that land is ancestral and would revert back to donor or his heir after death of donee, they perfected their title by way of adverse possession. They being legal heirs of Satehri, so the ascheat of land to provincial Government is bad and right to redemption of mortgage has extinguished by lapse of time. The suit was dismissed vide judgment and decree dated 30.09.1996 and plaintiffs were held to be mortgagees in possession, since they failed to prove particulars of mortgage, accordingly they failed to prove that period of limitation for redemption of mortgage has elapsed and that since they were mortgagees in possession, they cannot be held to be in adverse possession.

3. Appeal filed was dismissed vide judgment and decree dated 27.08.1979 holding that plaintiffs being mortgagees in possession cannot claim adverse possession and finding of learned Additional Senior Sub- Judge, Pehowa on all issues were affirmed. RSA-3060-1979 was partly allowed and plaintiffs were granted relief of permanent injunction restraining defendants from forcibly dispossessing the plaintiffs except in due course of law. The RSA was partly allowed vide order dated06.02.1992.

4. On 03.05.1974 respondent/defendant-State filed an application for redemption of suit land under Redemption of Mortgages (Punjab) Act 1913, the same was dismissed by Assistant Collector First Grade, Kaithal vide order dated 19.11.1976 holding that period prescribed for redemption of mortgage has already expired, the order has attained finality. On 23.05.1974 Fard Badder No.7 was entered by Patwari without any jurisdiction correcting the revenue record from 1944 to 1970 by showing the plaintiffs as mortgagee in possession to the extent of 333/869 share in the suit land and the remaining land was shown without mortgage. After decision of RSA on 06.02.1992, respondent/defendant-State on 31.03.1992 filed a petition under Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1972. That petition was dismissed vide order dated 15.12.1992 by recording the fact that plaintiffs as per the judgment of Civil Court are mortgagees in possession and the period of redemption had already expired.

5. Appellant/plaintiff filed the present suit for declaration claiming ownership and that Fard Badder No.7 is illegal