IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision : 11.03.2025

1. RSA-1596-2015 (O&M)

Deep Chand and others ..... Appellants versus Desh Raj (Deceased) through his LRs and others ...... Respondents

2. RSA-1559-2015 (O&M)

Deep Chand and others ..... Appellants versus Desh Raj (Deceased) through his LRs and others ...... Respondents CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN Present: Mr. Vikas Kumar, Advocate for the appellants.

Mr. Rajesh Lamba, Advocate for the respondents.

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PANKAJ JAIN, J. (ORAL)

1. By way of present judgment, I intend to dispose off above said two appeals as common question of law and facts are involved therein.

2. Defendants are in appeal.

3. Plaintiffs filed suit seeking decree of declaration to the effect that they are owners in possession of the suit land as detailed out and described in para 1 of the plaint being mortgagee in possession for last more than 55 years. Further relief was sought in the form of decree of permanent injunction restraining defendants from interfering in their peaceful possession over the suit land.

4. As per the plaintiffs Kamli wife of Durga Parshad predecessor-in-interest of defendants No.1 to 11 was owner in possession of the suit land admeasuring 14 kanal 11 marlas. She mortgaged the land with possession in favour of Harpal s/o Pirthi predecessor-in-interest of the plaintiffs vide mutation No.473 dated 30.05.1952. Harpal came into possession as mortgagee. Kamli expired leaving behind Smt. Mohra as her legal heir. Mohra created second mortgage in favour of Jagni and Chinta sons of Harpal predecessor-in-interest for consideration of Rs.5,000/- vide registered mortgage deed dated 01.08.1961. The time period for redemption was fixed for three months. As per the terms of the mortgage on the expiry of three months, Mohra agreed to lose her right to redeem the suit land. Mohra died leaving behind Mewa and Heti. Mewa expired leaving behind Dala as his legal heir. Dala also expired. He was succeeded by defendant No.1 to 5. Defendant No.6 to 11 succeeded Heti. It was claimed that plaintiffs are mortgagee in possession of the suit land. Defendants having failed to get the land redeemed within 30 years, defendants have lost their right to redeem the suit land by efflux of time and the status of mortgagees has ripened into ownership.

5. Suit was contested by the defendants. Defendants admitted mortgagee of the suit property in favour of predecessor-in-interest of the plaintiffs. Any condition for redemption of mortgage in the mortgage deed was denied. Possession of the plaintiffs as mortgagees was admitted. Defendants claimed that the mortgage in question being usufructuary mortgage, there is no limitation prescribed for redemption of the same and thus, prayed for dismissal of the suit filed by the plaintiffs.

6. Court of the first instance put suit filed by the plaintiffs put to trial to frame following issues:-

“1. Whether predecessor in interest of defendant no.1 to 11 had mortgaged the suit property with Harpal? OPP

2. Whether at present plaintiffs are mortgagee in possession of the suit property? OPP

3. Whether plaintiffs have become co-owners in possession of the suit properly by the efflux of time? OPD

4. Whether the suit of the plaintiff is not maintainable in the present form? OPD

5. Whether the plaintiffs are estopped by their own acts and conduct to file the present suit? OPD

6. Whether alleged claimants are entitled to redeem the land on payment of mortgagee money? OPD

7. Relief.”

7. Deciding issue No.1 and 2, Court of the first instance held that stipulation regarding limiting the right to redeem the land as three months is nothing, but a clog on mortgagee and the same has to be read down. There being no limitation for redemption of mortgagee, plaintiffs are not entitled for decree of declaration. Trial Court dismissed the suit filed by the plaintiffs.

8. Dissatisfied plaintiffs preferred appeal. Lower Appellate Court relying upon Full Bench judgment of this High Court in