RSA No.696 of 2010

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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

REGULAR SECOND APPEAL NO.696 OF 2010

DATE OF DECISION: FEBRUARY 01, 2012

Raj Karan Singh & another

.... Appellants

Versus

Jagmohan Singh & others

.... Respondents

CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL.

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PRESENT: Mr. Arun Jain, Senior Advocate with

Mr. Chetan Salathia, Advocate for the appellants.

Mr. M. L. Sarin, Senior Advocate with

Mr. Kabir Sarin, Advocate for the respondent No.1.

Respondents No.2 to 4 ex parte.

* * * *

L.N. MITTAL, J. (ORAL)

Plaintiffs-Raj Karan Singh and Sukhdev Singh sons of Ajit Singh

who were successful in the trial Court but have been non-suited by the lower

Appellate Court are in second appeal.

Case of the plaintiffs is that the suit land was mortgaged with

possession by predecessor in interest of the defendants/respondents with Ajit

Singh father and predecessor of the plaintiffs/appellants and the mortgage was

not redeemed within limitation period and therefore, plaintiffs have become

owners of the suit land by eflux of time. In the alternative, the plaintiffs also

claimed to have become owners of the suit land by adverse possession.

Accordingly, besides seeking declaration to this effect, plaintiffs also sought

permanent injunction.

Only defendant No.1 contested the suit whereas remaining

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defendants were proceeded ex parte.

Defendant No.1 alleged that the mortgage was redeemed on

29.02.1960 by paying the mortgage money to mortgagee Ajit Singh against

receipt and after redemption, possession of the suit land was delivered to the

mortgagers. However, thereafter Ajit Singh took the suit land as tenant.

Defendant No.1 also set up counter claim for possession of the suit

land.

Plaintiffs filed replication controverting the stand taken by

defendant No.1 including the counter claim set up by defendant No.1.

Learned Additional Civil Judge (Senior Division), Patti vide

judgment and decree dated 15.12.2005 decreed the suit of the plaintiffs and

dismissed counter claim preferred by defendant No.1. However, first appeal

preferred by defendant No.1-Jagmohan Singh has been allowed by learned

Additional District Judge (Ad hoc), Fast Track Court, Tarn Taran vide judgment

and decree dated 15.09.2009 and thereby suit filed by the plaintiffs has been

dismissed and counter claim of defendant No.1 has also been dismissed with

stipulation that he is entitled to possession of the suit land only on payment of

mortgage money by redemption of the mortgage. Feeling aggrieved, plaintiffs

have filed the instant second appeal.

I have heard learned counsel for the parties and perused the case

file.

At the outset, it has to be noticed that that counsel for

plaintiffs/appellants has not pressed the claim of the plaintiffs to have become

owners of the suit land by adverse possession.

Learned counsel for the appellants vehemently contended that since

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the mortgage was not redeemed within limitation period of 30 years,

appellants/plaintiffs have become owners of the suit land by eflux of time being

mortgagees thereof. It was pointed out that lower Appellate Court has held that

neither the mortgage was redeemed nor fresh tenancy was created in favour of

plaintiffs' predecessor Ajit Singh, as alleged by defendant No.1. Learned

counsel for the appellants relied on two judgments of Hon'ble Supreme Court in

case of Sampuran Singh versus Niranjan Kaur, 1999(2) RCR (Civil) 203 and

Prabhakaran & others Versus M. Azhagiri Pillai (Dead) by LRs & others,

2006(2) RCR (Civil) 428 to contend that there is limitation period for

redemption of usufructuary mortgage also and the limitation period starts from

the date of creation of mortgage if no period for redemption is specified. It was

also contended that in this case, it was also not even usufructuary mortgage but

was anomalous mortgage and therefore, limitatio