Gurbachan Singh (Dead) through L.Rs. vs Harnam Singh

Adarsh Kumar Goel, J.—The appellant-plaintiff filed a suit for possession by way of redemption on payment of Rs. 150/- of Khasra No. 111/7/1.

The case of the plaintiff is that his predecessor mortgaged the suit property, in the year 1962, for Rs. 150/-, in favour of defendant, his brother and was entitled to redeem the property on payment of the mortgage money. The suit was contested mainly on the ground that the same was beyond limitation. It was stated that the mortgage of land was prior to the partition of the country and mutation No. 3085 dated 21.9.2001 B.K. (1994 A.D.) recorded the said transaction. Limitation for redemption expired prior to filing of the suit, which was filed on 24.12.1980.

The trial Court decreed the suit on payment of Rs. 150/- by the plaintiff.

On appeal, the lower appellate Court reversed the finding of the trial Court on the question of limitation. Referring to excerpt, Exhibit P-2, it was held that the mutation No. 3085 dated 21.9.2001 B.K. (1994 A.D.) records the mortgage and since the mortgage was more than 30 years old prior to the filing of the suit, the suit was barred by limitation.

Learned counsel for the appellant submitted that once the factum of mutation was accepted, the appellant was entitled to redeem by way of redemption and the lower appellate Court was not justified in reversing the judgment of the trial Court on the question of limitation.

After hearing the counsels for the parties, I am of the view that a substantial question of law arises in this appeal: "Whether in a mortgage of agricultural land with possession, a mortgagee can claim to be lower without rendering account of produce from the land ?"

This matter has also been considered in several decision including the judgment dated 11th August, 2004 in R.S.A. No. 2366 of 1981 Chanan Singh Vs. Gurjit Singh and Others, wherein it has been held after referring to judgments of the Supreme Court in Panchanan Sharma Vs. Basudeo Prasad Jaganani and others, , Prithi Nath Singh and Others Vs. Suraj Ahir and Others, and a decision of this Court in Samadh Baba Narain Dass Ba-Ihaman Swami Ram Tirath v. Surta and Ors. (2002)131 P.L.R. 330 and also after distinguishing the judgment of the Supreme Court in Sampuran Singh and Others Vs. Smt. Niranjan Kaur and Others, , that the suit for redemption will not be barred by limitation. In such cases, mortgage will be deemed to have been redeemed from the produce of the land and the mortgagee did not acquire title merely on expiry of 30 years.

No contrary view has been shown by the learned counsel for the respondent.

Accordingly, answer to the question has to be given in favour of the appellant to the effect that the respondent did not become owner and appellant-plaintiff was entitled to possession of the suit land, as held by the trial Court.

For the above reasons, the appeal is allowed, the decree of the lower appellate court is set aside and that of the trial Court is restored. No costs.