Ram Chander and Others vs Manga

Mahesh Grover, J.—The application is allowed and delay of 68 days in refiling of the appeal is condoned.

C.M.No.7768-C of 2009

Allowed as prayed for.

R.S.A.No.2634-C of 2009 & C.M.No.7769-C of 2009

This Regular Second Appeal is directed against judgments and decrees dated 29.4.2008 and 4.11.2008 passed respectively by the Civil Judge (Senior Division), Panipat (hereinafter referred to as `the trial Court'') and the Additional District Judge, Panipat (described hereinafter as `the first appellate Court'') whereby the suit and the appeal of the plaintiffs-appellants have been dismissed. C.M.No.7769-C of 2009 has been moved for staying the operation of the impugned judgments and decrees during the pendency of the appeal.

The plaintiffs had filed a suit for declaration and permanent injunction pleading therein that the suit property was owned by Narpat son of Sheo Singh; that he was real brother of Hargobind, father of Manga-defendant/respondent; that on 3.1.1926, he had orally mortgaged the suit property to Shiba, their grand-father, for a sum of Rs. 1000/- and mutation No. 382 was accordingly sanctioned on 21.11.1928; that the mortgage was with possession which was to be delivered back on payment of the mortgage money within the period of limitation; that Narpat died issueless; that after the death of Narpat, the defendant is claiming himself as his legal representative; and that since the suit property was not redeemed within the period of limitation, they had become owners thereof. On the basis of these pleadings, the plaintiffs sought a decree of declaration as well as for permanent injunction restraining the defendant from interfering in their possession.

Upon notice, the defendant appeared and filed his written statement contesting the suit. It was pleaded that the suit was not maintainable and that the plaintiffs were not in possession of the suit property and, thus, were not entitled to the relief sought. It was further pleaded that no terms and duration of the mortgage were mentioned by the plaintiffs and the mortgage was to continue till repayment of the mortgage money which was paid way back in the year 1927 and the possession of the suit property came back to the predecessors of the defendant. It was averred that somehow the revenue record could not be got corrected and the plaintiffs'' father continued to be shown as mortgagee with possession; that the mortgage was oral and the plaintiffs had agreed to get the revenue record corrected, but later on, refused to do so, compelling the defendant to file a suit for redemption in the Court of Collector and that the instant suit was a counter-blast to the same.

As many as eleven issues were framed on the basis of the pleadings of the parties and after appraisal of the entire evidence on record, the trial Court dismissed the suit, whereas the first appellate Court rejected the appeal filed by the plaintiffs.

Hence, this Regular Second Appeal.

I have heard the learned Counsel for the appellants and have perused the impugned judgments.

In my opinion, there is no merit in the appeal. The Courts below have found as a matter of fact that the mortgage in the instant case was a usufructuary mortgage. While dealing with a case of usufructuary mortgage, a Full Bench of this Court in Ram Kishan and Ors. v. Sheo Ram and Ors. 2008 (1) R.C.R. (Civil) 334, after taking note of various judgments including the judgment of the Supreme Court in Harbans v. Om Parkash and Ors. 2005 (4) R.C.R. (Civil) 841, held that when the property is mortgaged with possession and no period for repayment of mortgage amount is fixed, the mortgagee cannot seek declaration that he has become owner and the mortgage can be got redeemed at any time.

Thus, the instant case is clearly covered by the ratio of the aforesaid judgment and no infirmity can be found with the findings recorded by the Courts below.

Accordingly, I do not find any ground to interfere in the second appeal as no question of law, much less a substantial question of law has been shown to have arisen for determination by this Court.

Dismissed.

As a consequence, C.M.No.7769-C of 2009 is also dismissed.