IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision: 08.01.2025 Buta Singh ....Appellant Versus Nazar Singh and others ...Respondents CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN Present : Mr. Baltej S. Sidhu, Sr. Advocate with Mr. Gurpreet Singh Brar, Advocate for the appellant.

Mr. R.K. Girdhar, Advocate and Mr. P.K. Ganga, Advocate for respondent No.1.

PANKAJ JAIN, J. (ORAL)

Defendant No.1 is in second appeal.

2. For convenience and to avoid confusion, the parties hereinafter are referred to by their original position in the suit i.e. the appellant as defendant No.1 and the respondent No.1 as the plaintiff and respondents No.2 to 9 as defendants No.2 to 9.

3. Plaintiff filed suit for possession by way of redemption of mortgage. As per plaintiff, he purchased disputed property through registered sale deed dated 09.03.1956. He mortgaged the same with Kartar Singh through registered mortgage deed dated 17.06.1964 in lieu of Rs.500/-. Kartar Singh died. Defendants are his legal heirs.

Plaintiff claimed that he offered mortgage money to the defendants. They refused to accept the same. Thus, the present suit was filed seeking possession by way of redemption of mortgage.

4. Suit was contested by defendant No.1. Other defendants opted not to appear and were proceeded ex parte. It was claimed that previously instituted suit by plaintiff qua the same property was dismissed vide judgment and decree dated 08.10.1987. The present suit is barred by principles of res judicata and is not maintainable. Defendant further claimed that as per mortgage deed there was a condition that the mortgage be redeemed within two months. On failure of mortgagor to redeem the property within the stipulated period, the property in dispute can be put to auction. Plaintiff failed to redeemed the property within two months. The same was put to auction. The same was purchased by defendant No.1 through his maternal uncle for a sum of Rs.600/-. In alternate, defendant No.1 claimed to have become owner by way of adverse possession being in possession over the suit property continuously and uninterruptedly since 16.12.1964. It was further claimed that defendant No.1 has reconstructed the house by spending Rs.35,000/- and the plaintiff was required to pay for the same.

5. Court of the First Instance put suit filed by the plaintiff to trial framing following issues:

“1. Whether plaintiff is entitled for possession of the house as fully described in the headnote of the plaint by way of redemption? OPP.

2. Whether the suit is not maintainable, as alleged? OPD. 3. Whether the suit is bad for non-joinder of necessary parties? OPD

4. Whether the suit is within limitation? OPP.

5. Whether the plaintiff is estopped from filing this suit by his act and conduct? OPD

6. Relief.”

6. Answering issue No.1, Court of the First Instance held that the mortgage is not disputed. The attempt made by defendant to take refuge under condition of mortgage fixing term thereof for two months was not enforceable in view of settled principle of 'once a mortgage always a mortgage’. Trial Court thus held that any auction pursuant to the said condition of mortgage, was illegal and cannot be enforced. Trial Court further held that the suit having been filed within thirty years of the date of mortgage, was within limitation.

7. So far as earlier suit is concerned, while returning finding on issue No.5, Trial Court found that the same suit was filed by the plaintiff seeking decree of possession claiming that he was forcibly dispossessed by the defendants. The same was withdrawn. The instant suit having been filed seeking possession by way of redemption is not barred by res judicata. Court of First Instance thus passed preliminary decree in favour of the plaintiff granting him six months' time to pay mortgage money and thereafter to seek final decree of possession.

8. Dissatisfied with the judgment and decree passed by the Trial Court, defendant No.1 preferred appeal.

9. Lower Appellate Court affirmed t