Punjab-Haryana High Court
Daya Chand And Another vs Ram Kumar Alias Ram Parkash And Others on 4 February, 2009
Author: Mahesh Grover
Bench: Mahesh Grover
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
R.S.A. No. 612 of 2005
Date of Decision: 04.02.2009
Daya Chand and another.
....... Appellants through Shri
Hari Om Attri, Advocate.
Versus
Ram Kumar alias Ram Parkash and others.
....... Respondents through Nemo.
CORAM: HON'BLE MR.JUSTICE MAHESH GROVER
....
1. Whether Reporters of Local Newspapers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
....
Mahesh Grover,J.
This Regular Second Appeal is directed against the judgment and decree dated 8.12.2004 passed by the Additional District Judge, Jind (referred to hereinafter as `the First Appellate Court') vide which the judgment and decree dated 7.3.2001 of the Civil Judge (Junior Division), Jind (referred to hereinafter as `the trial Court') were set aside and the suit of the plaintiff was dismissed.
A suit was filed by Smt.Chhoto, mother of the present appellants, for possession of the agricultural land which was detailed in the plaint. It was pleaded that Desu son of Kalu Bairagi, resident of village Ram Rai, Tehsil & District Jind, was the owner in possession of 1/4th share of the land comprised in khasra no.35, total measuring 93 kanals 7 marlas, the old khewat number of which was 21 and khatoni numbers were 88 to 92. Since R.S.A.No.612 of 2005 -2- ....
Desu was unable to cultivate his land, he was said to have leased out the s me for a consideration of Rs.1600/- to Chandu and Gordhan sons of Neki f his village for a period of 40 years in lieu of the aforesaid amount. It was f rther pleaded that Chandu and Gordhan played a fraud and got a usufr ctuary mortgage executed from Desu instead of a lease deed, whereas the i tention of Desu was to lease out the said property. The plaintiff had averr d that Desu died 30 years prior to the institution of the suit and since the l ase was for 40 years as disclosed by him, she along and proforma defen ants being his legal heirs as he had no issue, had convened a panch yat in the year 1992 for getting the suit land back from the contesting defen ants, but to no use and hence, the instant suit was filed for poss sion along with a prayer that the a declaration be made that the deed was n t a mortgage deed but it was a lease deed for a fixed period of 40 years and in the alternative, it was prayed that if the said deed was held as mortg ge deed, then it was for 40 years and a decree for possession be passe as the same had extinguished by lapse of time.
Notice of the suit was given to the defendants. Initially, Gordhan son of Neki was not impleaded, but through an application made by the plaintiff, he was made defendant no.4-A. In their separate written statements, defendant nos. 1 to 4 and defendant no.4-A denied the allegations of fraud and averred that it was a mortgage in favour of Chandu and Gordhan which deed was registered in the year 1952 (19.1.1952) and since then, the land was in their possession. It was also pleaded that Desu or any other else had failed to redeem the R.S.A.No.612 of 2005 -3- ....
mortgage and consequently, they had become owners of the suit land.
A counter claim was also preferred by defendant no.4-A to this effect.
Both the parties went to trial on the following issues:-
1. Whether the plaintiff and performa defendants are entitled to possession of the suit land as per averments made in the plaint?OPP
2. Whether the counter claim is not maintainable and is time barred and defendant No.4-A has no locus standi to make same?OPP
3. Whether the plaintiff has no locus standi to file the present suit?OPD
4. Whether the suit is bad for non-joinder and mis-joinder of parties?OPD
5. Whether the suit is not maintainable in the present form?OPD
6. Whether the suit is bad for payment of less court fee, if so to what effect?OPD
7. Whether Deshu had mortgaged the suit land with Chandu and Gordhan vide registered mortgage deed dt. 19.1.52 as alleged in para No.1 of counter claim if so to what effect?OPD
8. Whether Chandu and Gordhan have become owners of suit land as alleged in para No.1 of the counter claim?OPD R.S.A.No.612 of 2005 -4- ....
9. Relief.
On appraisal of the entire evidence on record, the trial Court came to the conclusion that document, Exhibit P1 (Exhibit D1 as produced by the contesting defendants) was, indeed, a mortgage deed. The finding was also based on the admission of the plaintiff, who appeared as PW2, who stated that Exhibit P1 was the mortgage deed. The trial Court, thereafter, concluded that there was no time limit stipulated in the mortgage deed for redemption of the land and, therefore, it passed a decree for possession by way of redemption in favour of the plaintiff and against defendant nos. 1 to 4-A with the direction that she will deposit Rs.1600/-, the mortgage amount, within one month from the date of the judgment,i.e., 7.3.2001. Consequently, the counter claim made by defendant no.4-A was rejected.
In appeal, the findings of the trial Court upset by the First Appellate Court by concluding that the suit was barred by time as the document, Exhibit P1 (Exhibit D1) stipulated the redemption period within 40 years and since the same has not been done, the plaintiff was precluded from raising the dispute after such an inordinate long period.
Feeling aggrieved, the appellants have filed the present Regular Second Appeal.
Learned counsel for the appellants has contended that plaintiff- Smt.Chhoti while appearing as PW2, had conceded that Exhibit P1 was, indeed, an usufructuary mortgage,but there was no time limit specified for redemption of the land and, therefore, the question of limitation would not R.S.A.No.612 of 2005 -5- ....
arise and the appellants were very well within their rights to redeem the usufructuary mortgage.
The question of law to the following effect was raised by the learned counsel for the appellants:-
"Whether usufructuary mortgage can be redeemed at any point of time if the mortgage deed does not provide for time limit and its consequences?"
No one has appeared on behalf of the respondents despite the fact that during the course of the day, the case was called out twice.
After hearing the learned counsel for the appellants and perusing the record, I am of the opinion that the appeal deserves to succeed.
This Court has perused Exhibit P1 (Exhibit D1). Smt.Chhoti- plaintiff while appearing as PW2 had also admitted that it is a mortgage deed. The contents of the document are explicit and clearly spell out the terms of the mortgage. The document is a registered one and the reading of its contents shows that no time limit has been specified for redemption of the mortgage.
A Full Bench of this Court in Ram Kishan and others Versus Sheo Ram and others, 2008(1) R.C.R.(Civil) 334, after noticing a number of judgments on the subject, observed as under:-
"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 R.S.A.No.612 of 2005 -6- ....
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."
In the instant case, since the document, Exhibit P1, is unambiguous in terms spelling out the terms of the mortgage where no time limit has been prescribed therein, the above quoted observations of the Full Bench are attracted herein and therefore, it is held, that for redeeming the usufructuary mortgage where the time limit has not been prescribed, the question of limitation would not arise and the mortgagor or his/ her legal heirs are very well within their right to redeem the property in question at any point of time.
Accordingly, the question of law stands answered as above. That apart, the findings recorded by the First Appellate Court are totally contrary to the evidence on record. As observed earlier, Exhibit P1 (Exhibit D1) does not, in any manner, specify the period of 40 years as has been held by the First Appellate Court. The findings being contrary to the evidence having been arrived at by a complete misreading of documents, have resulted in recording of perverse findings.
The Apex Court in Govindaraju Versus Mariammana, (2005) 2 S.C.C. 500 and Harjeet Singh and another Versus Amrik Singh and another, (2005) 12 S.C.C. 270, has held that where the findings are perverse, interference can be made in the Regular Second Appeal. R.S.A.No.612 of 2005 -7-
....
In the result, this appeal is accepted, the judgment and decree of the First Appellate Court are set aside and those of the trial Court are restored.
It has been brought to the notice of this Court that the amount as directed by the trial Court has already been deposited. In this view of the matter, the appellants are held entitled to possession of the suit land.
February 04,2009 ( Mahesh Grover ) "SCM" Judge