Gurdev Kaur and Others vs Niranjan Singh and Another

Rakesh Kumar Jain, J.—This appeal is by the defendants directed against judgment and decree dated 22.8.1983 passed by Sub Judge, 1st Class, Moga whereby the suit of the plaintiff for declaration to the effect that he has become owner of the property in dispute by efflux of time has been decreed and was upheld by District Judge, Faridkot vide judgment and decree dated 15.4.1985.

In brief, the facts of the case are that Niranjan Singh s/o Bhagwan Singh filed a suit against his brother Chanan Singh and three sisters Gurdev Kaur, Gurdial Kaur and Punjab Kaur seeking a decree of declaration to the effect that he has become owner of the land in dispute as the defendants have lost their right of redemption1 by efflux of time. Bhagwan Singh was the father of the plaintiff and the defendants, who had created an oral mortgage of 1/3rd share of his land bearing field No. 216/16/2 (3-0), 17(8-0) situated in Village Raunata in favour of Lahora Singh and Nikka Singh sons of Sunder Singh for an amount of Rs. 600/-. The report of oral mortgage was lodged with the Patwari on 11.6.1945 and the mutation was sanctioned on 24.7.1945 vide entry Ex. P.9. The plaintiff had purchased mortgagee rights from Lahora Singh and Nikka Singh by way of oral sale, which was recorded by way of mutation dated 27.6.1951 vide entry Ex.P.10. Since then the plaintiff claims to be in possession of the land in question and alleged in the suit that since the mortgagee rights were purchased by him of the land in dispute which has not been redeemed even on expiry of 30 years, therefore, he has become the owner by lapse of time and deserves to be declared as such.

Defendant No. 1 Chanan Singh filed a separate written statement and admitted the claim of the plaintiff. Defendants No. 2 to 4 filed separate written statements but contested the suit. It was pleaded by them that firstly, there was no mortgage but in case the plaintiff is proved to be mortgagee of any part of the suit land, his possession over the other parts of the suit land will be considered to be possession of all the co-sharers including the defendants after the death of Bhagwan Singh. It was further pleaded that in fact Bhagwan Singh had mortgaged some portion of land to Lahora Singh and Nikka Singh sons of Sunder Singh to the extent of 1/3rd share and rest 2/3rd share remained with Bhagwan Singh as owner. But in the year 1951, in spite of getting the land redeemed from Lahora Singh and Nikka Singh at the asking of Bhagwan Singh, plaintiff Niranjan Singh out of malice and greed got mutation No. 11675 sanctioned in his favour on 27.6.1951 as vendee of 1/3rd share of land. The payment was made by Bhagwan Singh through the plaintiff to the mortgagees Lahora Singh and Nikka Singh for redemption, therefore, since then Bhagwan Singh and after his death plaintiff, and defendants have become the owners in possession of suit land without any encumbrance. Entries in the revenue record, if any, are fictitious, illegal and ineffective and against the rights of the defendants. Though the plaintiff filed replication but the averments made in the written statement were not specifically denied and were claimed to be not admitted.

On the pleadings of the parties, the following issues were framed by the trial Court:

Whether the plaintiff has become owner of the suit land by lapse of time? OPP

Relief

Plaintiff Niranjan Singh examined himself as PW1 and led documentary evidence whereas the defendants examined Gurdial Kaur as DW1 and also produced some documents in their evidence.

Trial Court as well as the first Appellate Court decreed the suit of the plaintiff deciding issue No. 1 in his favour holding that not only the mortgage of Bhagwan Singh in favour of Lahora Singh and Nikka Singh was proved but also the sale of mortgagee rights by them in favour of plaintiff Niranjan Singh, therefore, it was held that since the plaintiff is in possession as a mortgagee for over a period of 30 years without redemption, therefore, he has become owner of the suit land by lapse of time and the defendants have lost their right of redemption.

I have heard counsel for the appellants and have perused the record with his assistance.

Counsel for the appellants has argued that even though finding of fact has been recorded by both the Courts below that mortgage was created by Bhagwan Singh in favour of Lahora Singh and Nikka Singh by virtue of Ex.P9 and mortgagee rights were purchased by plaintiff by virtue of Ex.P.10, this declaratory decree could not have been granted merely by efflux of time as there was no time limit fixed in the mortgage and the same can always be redeemed on the principle that once a mortgage is always a mortgage.

Thus, the following substantial question of law arises in this appeal for consideration of this Court.

Whether in case of usufructuary mortgage of land in which no time is fixed for redemption, mortgagor has right to seek redemption at any time and the mortgagee in possession cannot be declared as owner by efflux of time?

In order to substantiate the question formulated by him, counsel for the appellants has relied upon a recent Full Bench decision of this Court delivered in the case of Oriental Insurance Co. Ltd. Vs. Rajwati Devi and Others, and submitted that in the cited case, appellants were mortgagees, who filed a suit for declaration to the effect that they have become owners of the agricultural land by prescription but the Hon''ble Full Bench held that in case of usufructuary mortgage where no time limit is fixed to seek redemption, the right to seek redemption would not rise on the date when the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof and it is held that once a mortgage is always a mortgage and is always redeemable.

In my opinion, the afore-mentioned authority applies with full force to the facts of this case and the question raised in this appeal that in case of usufructuary mortgage, there is no time limit for redemption, is answered in favour of the appellants and against the respondents and it is held that the appellant has a right to redeem which has not extinguished with efflux of time. Resultantly, the present appeal is allowed and the judgment 3 and decree passed by both the Courts below, are set aside with costs.