Nathi and Others vs Prahlad and Others

Rakesh Kumar Jain, J.—The defendants are in appeal against the judgment and decree of both the Courts below. The plaintiffs filed suit for declaration with consequential relief of injunction alleging that land measuring 28 kanal 16 marla situated within the revenue estate of village Sondhad, Tehsil Hodal, District Faridabad was mortgaged with possession by the predecessors of the plaintiffs to the proforma defendants No. 11 to 19 alongwith the predecessors of the defendants No. 1 to 10 for a sum of Rs. 60/- in the year 1906. Mutation was also entered and sanctioned at Sr. No. 3592 on 30.4.1908. The plaintiff has also given the old khasra numbers of the land in dispute as prior to consolidation, the land was measured in bighas and biswas and it is alleged that it was 18 bighas 0 biswas. The case of the plaintiffs is that they have already redeemed the land in question after making payment to the defendants and thus sought a declaration that they are owner in possession and the entry reflected in the revenue record showing the defendants to be mortgagee with possession is illegal and against the record. In alternative, they have also prayed for decree for possession alleging that in case the Court comes to the conclusion that the land has not been redeemed, the plaintiffs may be given possession on payment of mortgage money of Rs. 60/-. In the written statement, the defendants raised preliminary objections that the suit is not maintainable and the plaintiffs have no locus standi. On merits, it was alleged that as per oral settlement, the plaintiffs'' predecessor-in-interest did not redeem the suit land within ten years from the date of mortgage. It is also alleged that they had tendered the mortgage amount after ten years which was not received and after the expiry of ten years the predecessors-in-interest of the defendants have become the owner of the property and thus a separate counter claim was also filed to claim that they have become the owner of the property in dispute as right of mortgage has been foreclosed. The plaintiffs not only filed replication but also filed reply to the counter claim alleging that no period of redemption was ever fixed. On the pleadings of the parties, various issues were framed by the learned trial Court and both the parties adduced their respective oral as well as documentary evidence in support of their case.

Both the Courts have recorded concurrent finding of fact that the land was mortgaged with the defendants, there was no time fixed for the purpose of redemption and while relying upon Full Bench judgment of this Court in the case of "Ram Kishan and others v. Sheo Ram and others", (2008-1) 149 P.L.R. 1 (F.B.) granted decree for redemption/possession on the ground that in case of usufructuary mortgage, the order of redemption could be passed at any time because the principle coined by this Court is that ''once a mortgage always a mortgage''. Aggrieved against the judgment and decree of both the Courts below, present appeal has been filed.

Learned counsel for the appellants has submitted that the suit was barred by limitation as it has been filed after the expiry of 30 years. It is submitted that the date on which the plaintiffs have tried to tender the mortgage money, the limitation had started from that day and thus, the suit after the expiry of 30 years was not maintainable. It is also argued that in the statement of PW 1, he has stated that they have not filed the suit for the purpose of redemption rather it is stilted that they had given 100/- about 50 years ago for the purpose of redemption to the defendants. It is thus submitted that the question of limitation has not been looked into by both the Courts below and the judgment in the case of Ram Kishan and others (Supra) is not applicable. In support of his submission, learned counsel for the appellants has relied upon a Single Bench judgment of the Karnataka High Court in the case of Sri M.K. Shekarappa (since deceased by his LRs. Smt. Parvathamma and Others), M.K. Eshwarappa, M. Malleshappa and K. Nagarajappa Vs. Smt. Shivagangamma and Others, .

I have heard learned counsel for the appellants and perused the record.

The plaintiffs have come to the Court with the plea that they are the owners of the property in dispute which was once mortgaged in the year 1902 with the defendants for an amount of Rs. 60/-. Thereafter, according to the plaintiffs, the mortgage was redeemed but still the name of the mortgagee continued in the revenue record and in the alternative the prayer was made that if the Court comes to the conclusion that the land was not redeemed then the plaintiffs may be given possession on payment mortgage money of Rs. 60/-. From the reading of the written statement, I have found that there is no objection raised regarding limitation but in any case even if the plea of limitation is taken on merits, the plea taken by the defendants is that there was an oral agreement between the parties that the mortgage would be redeemed within ten years and if it is not done within 10 years then the mortgage would be foreclosed However, in the replication and reply to the counter claim, it was specifically pleaded by the plaintiffs that there was no time fixed for the purpose of redemption. The question, thus arises that in a case where there is no time fixed for the purpose of redemption, whether there is a limitation for redemption. In the case of Ram Kishan and others (Supra), it has been held by this Court that if the time is fixed for the purpose of redemption and expires, then there would be limitation but if there is no time fixed for redemption then it could'' be redeemed at any time. In the present case, since it was allegedly an oral mortgage, the persons, who, had entered, into mortgage were the predecessors-in-interest of the plaintiffs and defendants who are no more in this world and no evidence is brought on the record to prove the terms and conditions of the mortgage, therefore, there was no mechanism with the Court to find out that time was fixed by the parties for redemption.

In view thereof, it has rightly been believed by the Courts below that there was not time fixed for redemption and accordingly, the judgment in the case of Ram Kishan and others (Supra), is fully applicable because the Full bench has held that in case of usufructuary mortgage, there is no period of redemption as the principle coined is that ''once a mortgage always a mortgage''. In view of the aforesaid observations, I do not find any merit as no question of law much less substantial is involved in the present appeal. Hence, the same is hereby dismissed.