Usufructuary mortgagor's right to recover possession restarts upon payment of mortgage money, distinguishing it from other mortgage types, and is not extinguished after 30 years.

JUDGMENT :

ALKA SARIN, J.

CM-10544-C-2018

1. For the reasons stated in the application, the same is allowed and the delay of 35 days in re-filing the present appeal is condoned.

RSA-3971-2018

2. Present appeal has been filed by defendant Nos.11 to 13 and 15 to 18 (appellants herein) aggrieved by the judgements and decrees dated 20.08.2015 and 13.09.2017 passed by the Trial Court and the First Appellate Court, respectively.

3. The brief facts relevant to the present lis are that the plaintiffs i.e. contesting respondent Nos.1 to 4 herein filed a civil suit for possession by way of redemption. It was averred in the plaint that agricultural land comprised in Khewat/Khata No.57/73 Rec. No.33, Killa No.1(8-0), 2/1(2-7), 10(8-0), 11(8-0), 20(8-0), 21(8-0), 22/1(4-0), Rect. No.34, Killa No.6/2(3- 15), 15(8-0), 16(8-0), 25/1(2-13), Rect. No.38, Killa No.3(8-0), 8(8-0), 13(3- 7), Rect. No.41, Killa No.1(8-0), 10/1(1-17) total measuring 97 Kanals 19 Marlas situated within the revenue estate of village Dostpur, Tehsil and District Palwal was owned by the plaintiff-respondent Nos.1 to 4 alongwith the proforma defendants and that the predecessors-in-interest of the plaintiff- respondent Nos.1 to 4 and the proforma defendants had mortgaged their property with the predecessors-in-interest of the defendant - Ram Lal - and others in the year about 1890 for an amount of Rs.125/- as detailed in the Jamabandi for the year 1890-91. The mortgage was with possession. The plaintiff-respondent Nos.1 to 4 averred that they could not redeem the land due to their financial position and that the prices of grains have already gone 100 times on the higher side since the date of the mortgage and the defendants had received more than the mortgage money. On notice, the suit was contested by defendant Nos.11, 12, 16 to 20, 24, 27 and 36 to 40 who filed their written statements raising various preliminary objections regarding locus standi, no cause of action, etc. On merits it was submitted that the defendants were absolute owners in possession of the suit land. It was further stated that the suit was vague and did not contain the necessary particulars of the mortgage. It was further averred that the plaintiff- respondent Nos.1 to 4 had no right to claim possession of the suit land as the suit was barred by limitation. Defendant Nos.1 to 10, 34 and 35 also appeared and filed their written statement denying the averments in the plaint. The remaining defendants were proceeded against ex parte. On the basis of pleadings of the parties, the following issues were framed :

1. Whether the plaintiffs and proforma-defendants are owners of the agricultural land fully detailed and described in Schedule-A attached with the plaint ? OPP

2. Whether the plaintiffs are entitled to the decree of possession to the land in dispute on the ground mentioned in the plaint ? OPP

3. Whether the suit of the plaintiffs is not maintainable in the present form ? OPD

4. Whether the plaintiffs have no locus-standi and no cause of action to file the present suit ? OPD

5. Whether the plaintiffs have not come with clean hands and have suppressed the true and material facts from the court ? OPD

6. Whether the suit is time barred ? OPD

7. Whether the plaintiffs are estopped by their own act and conduct from filing the present suit? OPD

8. Relief.

4. The Trial Court vide judgement and decree dated 20.08.2015 decreed the suit holding that the plaintiff-respondent Nos.1 to 4 and the proforma defendants are owners and entitled to possession of the suit land and further entitled to get the mortgage property redeemed after depositing the mortgage amount within a period of one month from the date of passing of the judgement and decree. Aggrieved by the same, an appeal was preferred by the defendant-appellants herein and some other def