IMPORTANT POINT
Rights of mortgagor and mortgagee are not interdependent but are independent and mutually exclusive.

Sanjay Karol, J. —In this regular second appeal filed under Section 100 of the Code of Civil Procedure, 1908 the judgment and decree dated 26.6.1998 passed by the District Judge, Solan Camp at Nalagarh in Civil Appeal No. 64-NL/13 of 1995, affirming the judgment and decree dated 29.4.1995 passed by the Sub-Judge, 1st Class, Nalagarh, District Solan, H.P. in Civil Suit No. 305/1 of 1989 has been assailed. The Courts below, dismissed the plaintiffs’ suit for declaration that with the mortgagors’ right of redemption having come to an end due to efflux of time, the plaintiffs have become owners of the mortgaged land.

2. The appellants herein are the original plaintiffs and/or their legal representatives. For the purposes of adjudication of the present appeal, original plaintiffs are referred to as the plaintiffs. The respondents herein are either the original defendants No.1 to 17 and/or their legal representatives and hence for the purposes of adjudication of the present appeal are referred to as the contesting defendants.

3. Brief facts necessary for adjudication for the present appeal are as under:—

The plaintiffs filed a suit for declaration that they have become owners of land measuring 6 Bighas 11 Biswas, comprised in K/K No. 24/24 min, Khasra No.44, situated in the area of Village Dattowal, Tehsil Nalagarh, District Solan, H.P. (hereinafter referred to as the suit land). It is their pleaded case that Shri Labhu and Datta Ram, predecessor-in-interest of the contesting dependents, who were the owners of the suit land, on 21.6.1958 mortgaged it for a sum of Rs. 5,000 with Smt. Uttami, predecessor in-interest of the plaintiffs and proforma defendants 18 to 23 (hereinafter referred to as the proforma defendants), when the possession of the same was also handed over to her, but, however, due to fiduciary relationship between the parties, entry of mortgage could not be incorporated in the revenue record. In April 1989, the contesting defendants forcibly dispossessed the plaintiffs from the suit land by claiming themselves to be owners thereof. With the expiry of the period of redemption of mortgage on 21.6.1988, and the cause of action having been lost with the efflux of time and also by forcible dispossession, the plaintiffs be held to be owners and put back in possession thereof.

4. The contesting defendants filed written statement completely denying handing over possession of the suit land by the mortgagor to the mortgagee in the year 1958 or the plaintiffs being dispossessed by them in April, 1989. The mortgagor and then the contesting defendants always continued to be in uninterrupted and continuous possession of the suit land in their own right. However, with regard to the creation of the mortgage, they took a contradictory stand. On the one hand they denied execution of the mortgage deed yet on the other hand they pleaded repayment of the mortgage amount in the year 1959 itself.

5. Based on the pleadings of the parties, the trial Court framed the following issues:-

“1. Whether Labhu and Datta sons of Gulaba have mortgaged the suit land with possession for a consideration of Rs. 500 on 21.6.1958 with Ms. Uttami, as alleged? OPP

2. Whether the plaintiffs have become the owner of the suit land by efflux of time? OPP

3. Whether the suit of the plaintiff is not maintainable, in the present form? OPP

4. Whether the plaintiffs have no locus standi to file the suit as alleged? OPD.

5. Whether the suit of the plaintiffs is bad for misjoinder of parties as alleged? OPD.

6. Whether the suit of the plaintiff is barred by time? OPD.

7. Whether Labhu & Datta Ram have repaid the mortgaged amount of Rs. 500 to mortgagor as alleged, if so, its effect? OPD.”

6. Appreciating the evidence led by the respective parties, the trial Court concluded that (i) keeping in view the admissions made by the contesting defendants, the execution of the deed of mortgage (Ext.P1) stood proved; (ii) as claimed, the contesting defendants