Punjab-Haryana High Court
Yakub Etc vs Suleman Etc on 19 November, 2025
Author: Amarinder Singh Grewal
Bench: Amarinder Singh Grewal
RSA-3177-1996
1996 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
108 RSA
RSA-3177-1996 (O&M)
Reserved on:17.11.2025
Pronounced on:19.11.2025
Uploaded on:
on:21.11.2025
Yakub and others ...Appellants
Versus
Suleman and others
thers ... Respondents
2. COCP-877
877-2001(O&M)
Samshu ...Petitioner
Versus
Yakub and others ... Respondents
CORAM : HON'BLE MR. JUSTICE AMARINDER SINGH GREWAL
Present: Mr. J. S. Bhatia, Advocate
for the appellants in RSA-3177-1996
1996
for respondents in COCP-877-2001.
2001.
Mr. Sudhir Aggarwal, Advocate
for respondents No.1 and 2 in RSA
RSA-3177-1996
for the petitioner in COCP-877-2001.
COCP 2001.
***
****
AMARINDER
MARINDER SINGH GREWAL, J.
1. The instant appeal bearing RSA No.3177 of 1996 and COCP No.877 of 2001 are being decided by a common order, order, as they involve common question of law and facts. For the sake of convenience, facts are being taken from RSA No.3177 of 1996 and the parties are referred to in terms of their status before the learned trial Court.
ourt.
2. Defendant efendants No.1 to 5 are the appellants before this Court challenging the judgment and decree dated 08.10.1992 passed by the learned trial Court 1 of 14 ::: Downloaded on - 22-11-2025 14:19:57 ::: RSA-3177-1996 1996 (O&M) -2- decreeing the suit for declaration and permanent injunction filed by the respondent plaintiffs and the judgment dated 24.09.1996 passed by the learned 1st Nos.1 and 2-plaintiff Appellate Court vide which the appeal preferred by them against the aforesaid judgment and decree passed by the learned trial Court, has been dismissed.
3. Succinctly, the facts of the he case are that defendants No. No.1 1 to 5 are recorded as owners of agricultural land compris comprised in Khewat No.530, Khatauni No.788, Rect.. No. 92, Killa No.6 No. (8-0), Khatauni No.789, Rect. No.92, Killa No.4(8-0)
0) and 5(8-0), 5 0), total measuring 24 kanals, situated in Village Kot, Tehsil Hathin, District Faridabad, as per jamabandi for the year 1979 1979-80.
80. The suit land was mortgaged in the year 1902 by the predecessor predecessors-in-interest interest of defendants No.1 No. to 5 in favour of the predecessors-in-interest predecessors interest of the plainti plaintiffs ffs and proforma defendants No.6 to 27, who have since remained in actual cultivating possession ortgagees, while defendants No.1 as mortgagees, No.1 to 5 have remained out of possession and never redeemed the mortgaged mortgage land.. The plaintiffs claim claimed that the mortgage has continued ontinued for over 83 years, thus, the period of redemption has expired and the right, title and interest of defendants No. 1 to 5 stand extinguished extinguished.. As a consequence thereto, mortgagee rights of the plaintiffs and proforma defendants have matured into ownership.
ownership. Though the jamabandi for the year 1979-80 1979 contained entries in respect of Khasra Nos.92/4 92/4 (8 (8-0) and 92/5 (8-0)
0) showing the land as redeemed and the mortgagors as gair ma marusi, the plaintiffs asserted such entries to be incorrect, as no redemption ha had taken place nor wass there any corresponding rapat,, mutation or girdawari entry, and as such, said revenue entries, which were re made without their knowledge, are void in law. In the alternative, the plaintiffs pleaded plead that by virtue of their uninterrupted uninterrupted,, peaceful and continuous possession for more than 60 years without any interfe interference rence from 2 of 14 ::: Downloaded on - 22-11-2025 14:19:58 ::: RSA-3177-1996 1996 (O&M) -3- defendants No.1 No.1 to 5, they have also become owners by way of adverse possession. It was was further alleged that the Government has proposed to dig a nala for discharge of of flood water from the area of Bahin and Kot, for which approximately nine karms of the suit land have been acquired and compensation is likely to bee disbursed, and defendants No.1 No.1 to 5, relying on the incorrect entries, have threatened to receive the said compensation despite having no right or title.
Repeated requests by the plaintiffs and proforma defendants to acknowledge their claim were refused, leading to the filing of the ppresent resent suit for declaration and permanent injunction.
4. Upon issuance of summons, appellant appellant-defendants No.1 to 5 appeared through their counsel and filed written statement wherein they raised preliminary objections with regard to maintainability of suit suit,, concealment of facts, cause of action, locus standi of respondents No.1 and 22-plaintiffs plaintiffs to file the present suit.
Defendants efendants No.1 No to 5 contested the suit by asserting that they had inherited the suit property from their forefathers and that the property was never mortgaged to the predecessors of the plaintiffs or proforma defendants. They pleaded that the plaintiffs and defendants No.6 No. to 27 had no concern with the land in dispute and that the entries in the revenue record showing the answering defendant defendantss as owners and in cultivating possession were re correct. They further contended that it was for the plaintiffs to prove whether the land was ever mortgaged, to whom and when, and denied the plaintiffs' alternative plea of ownership by adverse possession.
They ey also asserted that the plaintiffs are not entitled to any compensation regarding the portion allegedly acquired by the Government as they ha had no right in the suit property. The defendants denied the remaining averments of the plaint as well.
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5. On the basis of pleadings, learned trial Court had framed as many as 10 issues including relief. On appreciation of oral as well as documentary evidence produced before it, the learned trial Court decreed the suit of the plaintiffs and the appeal preferred by the appellants appellants-defendants No.1 to 5 was also dismissed by the learned 1st Appellate Court. Hence, the regular second appeal.
6. The contempt petition bearing COCP No.877 of 2001 has been filed by the petitioner-plaintiff petitioner plaintiff No.2 seeking initiation of contempt proceedings under the Contempt of Courts Act, 1971 against respondents therein for willful disobedience of the order dated 26.02.1999 passed by this Court.
7. Learned counsel for the appellants appellants-defendants No.1 to 5 contended contend that the learned Courts Courts below have erred in decreeing the suit in favour of respondents No.1 and 2-plaintiffs 2 plaintiffs by completely ignoring the latest jamabandis, particularly the entries entries relating to cultivation. Further, it was argued that revenue entries continuing for over 30 years were never never challenged by the plaintiffs plaintiffs,, which itself show that the suit wass misconceived and deserv deserved to be dismissed.
dismissed Furthermore, it was submitted that the land in question was never mortgaged and even assuming that a mortgage had ever existed, the jamabandi for 1960-61 1960 clearly reflects the appellants' possession, proving redemption, however, this material fact has been overlooked by the learned C Courts below.
low. It is pertinent to mention that respondents were required to prove not only the alleged mortgage but also their long, continuous and actual possession up to the date of the suit both of which they have failed to establish.
8. Learned counsel for the appellants appellants-defendants defendants No.1 to 5 vehemently argued that for usufructuary mortgage of land, land, no period is fixed for redemption and mortgagees do not become owners by prescription. In support of his 4 of 14 ::: Downloaded on - 22-11-2025 14:19:58 ::: RSA-3177-1996 1996 (O&M) -5- contention, he relied upon the judgment passed by a Full Be Bench nch of this Court in Ram Kishan and others Vs. Sheo Ram and others 2008(1) RCR (Civil).
Reliance was also placed on the judgment passed by the Hon'ble Supreme Court in Singh Ram (D) through LRs Vs. Sheo Ram and others 2014 (4) RCR (Civil) 179 to contend that limitation does not start for the purpose of Article 61 61(a) of the Schedule to the Limitation Act until the mortgage money is paid and right to recovery of possession commences from the date of payment of mortgage money, as provided under Section 62 of the Transfer of Property Act.
9. Per contra, learned counsel appearing for respondents No.1 and 2/plaintiffs had supported the judgments and decrees passed by both the Courts below. He argued that the property was mortgaged in the year 1902 and respondents dents No.1 and 2/plaintiffs were in possession of the suit land till the filing of the suit in the year 1985 i.e. for a period of 83 years, thus, they have acquired the ownership by prescription, which has rightly been interpreted by both the learned Courtss below. It was further argued that oonce nce the limitation period of 30 years has expired as prescribed under Article 61(a) of the Limitation Act, 1963, rights of mortgagors/defendants No.1 to 5 (appellants herein) to redeem the suit property stood extinguished extinguis and respondents No.1 and 2/plaintiffs have acquired the ownership and thus, prayed for dismissal of the appeal. He further pressed the contempt petition vehemently to initiate contempt proceedings against appellants-
appellants defendants No.1 to 5 and punish them for willful disobedience of the status quo order passed by this Court on 26.02.1999.
10. I have heard learned counsel for the parties and have perused the paper book as well as the case laws cited with their able assistance.
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11. The only question for consideration before this Court is whether a mortgagee can acquire ownership with the afflux of time and whether the time limit of 30 years provided under the Limitation Act begins from the date of mortgage itself or from the date when when mortgagor pays or tenders to mortgagee the mortgage money or deposits in the Court?
12. The issue for determination before this Court is no more res integra.
integra A Full Bench of this Court while dealing with the similar issue in Ram Kishan's case (supra) has held that limitation of 30 years under Article 61 (a) of the Limitation Act begins to run when the right to redeem or the possession accrues and the said right accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, when rents rents and profits are to be set off again against st interest on the mortgage debt, debt, payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the Court. The relevant paragraphs of the judgment are reproduced as under:-
under:
"40. The limitation on of 30 years under Article 61(a) begins to run "when the right to redeem or the possession accrues". The right to redemption or recover possession accrues to the mortgagor on payment of sum secured in case of usufructuary mortgage, where rents and profits profits are to be set off against interest on the mortgage debt, on payment or tender to the mortgagee, the mortgage money or balance thereof or deposit in the court. The right to seek foreclosure is co-extensive co extensive with the right to seek redemption. Since right to seek redemption accrues only on payment of the mortgage money or the balance thereof after adjustment of rents and profits from the interest thereof, therefore, right of foreclosure will not accrue to the mortgagee till such time the mortgagee remains in possession of the mortgaged security and is appropriating usufruct of the mortgaged land towards the interest on the mortgaged debt. Thus, the period of 6 of 14 ::: Downloaded on - 22-11-2025 14:19:58 ::: RSA-3177-1996 1996 (O&M) -7- redemption or possession would not start till such time usufruct of the land and the profits are being adjusted towards interest on the mortgage amount. In view of the said interpretation, the principle that once a mortgage, always a mortgage and, therefore always redeemable would be applicable.
41. The argument that after the expiry of period of limitation to sue for foreclosure, the mortgagees have a right to seek declaration in respect of their title over the suit property is not correct. From the aforesaid discussion, it is apparent that the mortgage cannot be extinguished by any unilateral act of the mo mortgagee.
rtgagee. Since the mortgage cannot be unilaterally terminated, therefore, the declaration claimed is nothing but a suit for foreclosure. It is equally well settled that it is not title of the suit, which determines the nature of the suit. The nature of the suit is required to be determined by reading all the averments in the plaint. Such declaration cannot be claimed by an usufructuary mortgagee. Thus, we prefer to follow the dictum of law laid down by the larger Bench in Seth Ganga Dhar's case (supra) as w well ell as judgments of Hon'ble Supreme Court in Jayasingh Dnyanu Mhoprekar's case (supra), Pomal Kanji Govindji's case (supra), Panchanan Sharma's case (supra) and Harbans's case (supra) in preference to the judgments relied upon by the mortgagees in Prabhaka Prabhakaran's ran's case (supra) and Sampuran Singh's case (supra).
42. Therefore, we answer the questions framed to hold that in case of usufructuary mortgage, where no time limit is fixed to seek redemption, the right to seek redemption would not arise on the date of mortgage but will arise on the date when the mortgagor pays or tenders to the mortgagee or deposits in Court, the mortgage money or the balance thereof. Thus, it is held that once a mortgage always a mortgage and is always redeemable."
13 Further the Hon'ble Supreme Court in Singh Ram(D)'s case (supra) has held as under:-
under:
7 of 14 ::: Downloaded on - 22-11-2025 14:19:58 ::: RSA-3177-1996 1996 (O&M) -8- "11. We are in agreement with the view taken in the impugned judgment that in a usufructuary mortgage, right to recover possession continues till the money is paid from the rents and profits pro or where it is partly paid out of rents and profits when the balance is paid by the mortgagor or deposited in Court as provided under section 62 of the Transfer of Property Act.
12. It will be appropriate to refer to the statutory provisions of the Transfer of Property Act and the Limitation Act:
Act:-
"T.P. T.P. Act
58. "Mortgage", "mortgagor", "mortgagee", "mortgage "mortgage-money"
money"
and "mortgaged" defined.
defined
(a) A mortgage is the transfer of an interest in specif specific ic immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, mortgage money, and the instrument (if any) by which the transfer is effected is called a mortgage mortgage-deed.
(b) Simple mortgage-Where, mortgage here, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, mortgage money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, mortgage money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
(c) Mortgage by conditional conditional sale sale-Where, Where, the mortgagor ostensibly sells the mortgaged property-
property
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on condition that on default of payment of the mortgage mortgage-money money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.
(d) Usufructuary mortgage-Where mortgage Where the mortgagor delivers possession or expressly or by implication binds himself to deliver posse possession ssion of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage mortgage-money, money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage mortgage-money, money, or partly in lieu of interest or partly in payment of the mortgage mortgage-money, money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.
(e) English mortgage-Where mortgage e the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the mortgaged mortgage-money property absolutely to the mortgagee, but subject to a proviso that he will re-transfer re transfer it to the mortgagor upon payment of the mortgage-
mortgage money as agreed, agreed, the transaction is called an English mortgage.
(f) Mortgage by deposit of title-deeds title deeds-Where Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title title-deeds.
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(g) Anomalous mortgage-A
A mortgage which is not a simple
mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title title-deeds deeds within the meaning of this section is called an anomalous mortgage.
60. Right of mortgagor mortg to redeem At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage money, to require the mortgagee (a) to deliver to the mortgage-money, mortgagor the mortgage-deed mortgage deed and all docu documents ments relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his iinterest nterest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by the act of the parties or by decree of a court. xxx xxx xxx
62. Right of usufructuary mortgagor to recover possession In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage mortgage-deed deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, mortgagee,-
(a) where the mortgagee is authorised to pay himself the mortgage-
mortgage money from the rents and profits of the property, property,-when when such money is paid;
(b) where the mortgagee is authorised to pay himself from such rents and profits or any part thereof a part only of the mortg mortgage-money, money, when the term (if any) prescribed for the payment of the mortgage-
mortgage money has expired and the mortgagor pays or tenders to the 10 of 14 ::: Downloaded on - 22-11-2025 14:19:58 ::: RSA-3177-1996 1996 (O&M) -11- mortgagee the mortgage money or the balance thereof or deposits it in court hereinafter provided.
xxx xxx xxx Limitation Act:-
Article 61 by a mortgagor
a) To redeem or Thirty years( When the right to redeem recover possession of or to recover possession e immovable property accrues mortgaged m
b) xxxxxxx xxxxxxxx p xxxxxx (emphasis supplied) A perusal of above provisions shows that Article 61 refers to right to redeem or recover possession. While right of mortgagor to redeem is dealt with under section 60 of the Transfer of Property Act, the right of usufructuary usufructuary mortgagor to recover possession is specially dealt with under Section 62. Section 62 is applicable only to usufructuary mortgages and not to any other mortgage. The said right of usufructuary mortgagor though styled as right to recover possession' is for all purposes, right to redeem and to recover possession. Thus, while in case of any other mortgage, right to redeem is covered under Section 60, in case of usufructuary mortgage, right to recover possession is dealt with under Section 62 and commences on payment of mortgage money out of the usufructs or partly out of the usufructs and partly on payment or deposit by the mortgagor. This distinction in a usufructuary mortgage and any other mortgage is clearly borne out from provisions of sections 58, 60 and 62 of the Transfer of Property Act read with Article 61 of the Schedule to the Limitation Act. Usufructuary Usufructuary mortgage cannot be treated at par with any other mortgage, as doing so will defeat the scheme of section 62 of the Transfer of Property Act and the equity. This right of the usufructuary mortgagor is not only an equitable right, it has statutory recognition under section 62 of the Transfer of Property Act. There is no principle of law on which this right can be defeated. Any contrary
11 of 14 ::: Downloaded on - 22-11-2025 14:19:58 ::: RSA-3177-1996 1996 (O&M) -12- view, which does not not take into account the special right of usufructuary mortgagor under section 62 of the Transfer of Property Act, has to be held to be erroneous on this ground or has to be limited to a mortgage other tha thann a usufructuary mortgage.
Accordingly, we uphold the view taken by the Full Bench that in case of usufructuary mortgage, mere expiry of a period of 30 years from the date of creation of the mortgage does not extinguish the right of the mortgagor under section 62 of the Transfer of Property Act.
xxxxx xxxxx xxxxx
15.
5. We, thus, hold that special right of usufructuary mortgagor under section 62 of the Transfer of Property Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to limitation the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answe answerr the question accordingly."
14. Once a mortgage always a mortgage and any stipulation which prevents a mortgagor from getting back the property mortgaged is void void,, meaning thereby, mortgage is always redeemable. Respondents No.1 and 2/plaintiffs have failed to establish that the mortgage money was tendered by the appellants/defendants No.1 to 5 and period of limitation of 30 years if reckoned from the date of such tender has expired.
expired. Rather, a perusal of mutati mutation on bearing No.1217, Ex.PY, reveals that an amount of Rs.400/ Rs.400/- was tendered by the mortgagors but the mortgagees refused to take said payment. In the absence of any documentary proof with respect to tender of mortgage money, it cannot be stated that right of the appellants-defendants defendants No.1 to 5 to get the suit land 12 of 14 ::: Downloaded on - 22-11-2025 14:19:58 ::: RSA-3177-1996 1996 (O&M) -13- redeemed stood extinguished on expiry of limitation period of 30 years as provided under Article 61(a) of the Limitation Act, 1963, as the period of limitation starts from the date of tender of mortgage mortgage money or deposit posit in the Court and not from the date of mortgage itself. Any mortgage including usufructuary mortgage can be extinguished only by act of parties or by decree of the Court, meaning thereby, in case, character of the property as mortga mortgage property is lost by the act of the parties, for example, the land in question is sold to the mortgagee itself or to any third party or right of redemption is extinguished by a decree of the Court. The right of redemption of o a mortgagor being a statutory right can be taken away only in terms of the proviso appended to Section 60 of the Transfer of Property Act, 1882. Thus, both the learned Courts below have gravely erred in holding that respondents No.1 and 2/plaintiffs and pro forma defendants No.6 to 27 had become owners of the suit property by prescription and restrained the appellants-defendants defendants No.1 to 5 from interfering in their peaceful possession.
15. In view of the judgments passed by the Hon'ble Supreme Court in Pankajakshi nkajakshi (Dead) through Legal Representatives and others Vs. Chandrika and others (2016) 6 SCC 157, Randhir Kaur Vs. Prithvi Pal Singh and others (2019) 17 SCC 71 and Gurbachan Singh (dead) through LRs Vs. Gurcharan Singh (dead) through LRs and others, questions estions of law are not required to be framed in second appeal before the Punjab and Haryana High Court whose jurisdiction is circumscribed by provisions of Section 41 of the Punjab Courts Act, 1918.
16. As an upshot of above, judgments and decrees passed by both the learned Courts below are set aside and the regular second appeal is allowed.
Consequently, the contempt petition stands dismissed. Needless to say,
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appellants-defendants
defendants No.1 to 5 will be at liberty to get the suit land redeemed in accordance with law. Decree sheet be prepared accordingly.
17. Misc. application(s) pending, if any, also stand disposed of.
(AMARINDER AMARINDER SINGH GREWAL GREWAL) JUDGE November 19,, 2025 Pankaj* Whether speaking/reasoned : Yes Whether reportable : Yes 14 of 14 ::: Downloaded on - 22-11-2025 14:19:58 :::