Punjab-Haryana High Court
Jai Singh And Ors vs Madhu Parshad on 5 March, 2024
Author: Alka Sarin
Bench: Alka Sarin
Neutral Citation No:=2024:PHHC:031718
RSA-158-1995 (O&M) 2024:PHHC:031718 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
202
RSA-158-1995 (O&M)
Date of decision : 05.03.2024
Jai Singh and others ... Appellant(s)
Versus
Madho Parshad ...Respondent(s)
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Adarsh Jain, Advocate for the appellants.
Mr. R.K. Sharma, Advocate for the respondent.
ALKA SARIN, J. (ORAL)
1. The present appeal has been preferred by the defendant- appellants challenging the judgments and decrees dated 11.01.1989 and 09.11.1994 passed by the Trial Court and the First Appellate Court, respectively.
2. Brief facts relevant to the present lis are that the suit in the present case was filed by the plaintiff-respondent claiming that the suit property was mortgaged with possession with them and since it had not been redeemed, the plaintiff-respondent was entitled for declaration of having become owner of the suit property. It was pleaded in the plaint that the mortgage was created more than 30 years ago and the plaintiff-respondent had been in possession till the date of filing of the suit and hence the right for redemption had distinguished. The suit was contested by the defendant- appellants claiming that the suit property had never been mortgaged as 1 of 9 ::: Downloaded on - 07-03-2024 03:00:41 ::: Neutral Citation No:=2024:PHHC:031718 RSA-158-1995 (O&M) 2024:PHHC:031718 [2] alleged. It was further averred that earlier a mortgage with possession was created by the predecessor-in-interest of the defendants with one Balak Ram son of Budha who sold his mortgagee rights to one Bakhtawar Lal son of Gulab Rai and from him the defendant-appellants got redeemed the suit land vide order dated 12.03.1945 passed by Sh. Amar Singh Chaudhary, Special Collector, Gurgaon. After the redemption, the suit land was never mortgaged.
3. On the basis of the pleadings of the parties, the following issues were framed :
1. Whether the plaintiff has become owner of the suit land due to expiry of the prescribed period of limitation for redeeming the suit land ?
2. Whether the plaintiff has locus standi to file the present suit ?
3. Whether the suit is bad for mis-joinder and non-
joinder of the necessary parties ? OPD
4. Whether the suit is not maintainable as alleged ? OPD
5. Relief.
4. The Trial Court held that mortgage with possession was created, however, there was no evidence of redemption and holding that the property had not been redeemed for more than 30 years declared the plaintiff-respondent as owner and decreed the suit vide judgment and decree dated 11.01.1989. Aggrieved by the same, an appeal was preferred by the defendant-appellants. The plaintiff-respondent in the said appeal raised a 2 of 9 ::: Downloaded on - 07-03-2024 03:00:42 ::: Neutral Citation No:=2024:PHHC:031718 RSA-158-1995 (O&M) 2024:PHHC:031718 [3] plea of adverse possession and on 25.02.1992 an additional issue was framed "whether the plaintiff become owner of the suit property by adverse possession, as alleged. If so, its effect ?OPP" and a report was called from the Trial Court. A report dated 31.07.1992 was received by the First Appellate Court and it was found that there was no act of asserting a hostile title by the plaintiff-respondent and the plea of adverse possession was not established. Vide judgment and decree dated 09.11.1994, the appeal was dismissed holding that the mortgage was created on 14.05.1851 in favour of Balak Ram and the rights were transferred on 21.04.1899 in favour of Bakhtawar Lal and the mortgage entries have continued till date and there was no evidence of redemption and since the property had not been redeemed within 30 years, the right of redemption had distinguished. Hence, the present regular second appeal by the defendant-appellants.
5. Learned counsel for the defendant-appellants would contend that as per the judgment of the Full Bench of this Court in the case Ram Kishan & Ors. vs. Sheo Ram & Ors. [2008 (1) RCR (Civil) 334] it has been held that in case of a usufructuary mortgage, there is no limitation for redemption. In view thereof, the suit ought not to have been decreed.
6. Per contra, the learned counsel for the plaintiff-respondent would contend that under Order 41 Rule 33 CPC though no appeal has been preferred, however, the respondent can put-forth his case and challenge the finding which is against him. It is further the contention of the learned counsel for the plaintiff-respondent that a specific issue was framed regarding adverse possession and that since the mortgage was created in the year 1851 and in favour of Bakhtawar Lal in the year 1899 and the plaintiff-
3 of 9 ::: Downloaded on - 07-03-2024 03:00:42 ::: Neutral Citation No:=2024:PHHC:031718 RSA-158-1995 (O&M) 2024:PHHC:031718 [4] respondent had been in possession throughout, the plea of adverse possession stood duly proved.
7. I have heard the learned counsel for the parties.
8. As per the law laid down by the Constitution Bench of the Hon'ble Supreme Court in the case of Pankajakshi (dead) through LR's & Ors. vs. Chandrika & Ors. [2016 (6) SCC 157] there is no requirement for framing of substantial questions of law.
9. In the present case, dealing with the argument of the learned counsel for the plaintiff-respondent first regarding adverse possession, it is noticed that in the plaint no plea of adverse possession was raised. In Dagadabai vs. Abbas [(2017) 13 SCC 705] the Supreme Court held inter- alia as under :
"15. Third, the plea of adverse possession being essentially a plea based on facts, it was required to be proved by the party raising it on the basis of proper pleadings and evidence. The burden to prove such plea was, therefore, on the defendant who had raised it. It was, therefore, necessary for him to have discharged the burden that lay on him in accordance with law. When both the courts below held and, in our view, rightly that the defendant has failed to prove the plea of adverse possession in relation to the suit land then such concurrent findings of fact were unimpeachable and binding on the High Court.
4 of 9 ::: Downloaded on - 07-03-2024 03:00:42 ::: Neutral Citation No:=2024:PHHC:031718 RSA-158-1995 (O&M) 2024:PHHC:031718 [5]
16. Fourth, the High Court erred fundamentally in observing in para 7 that, "it was not necessary for him (defendant) to first admit the ownership of the plaintiff before raising such a plea". In our considered opinion, these observations of the High Court are against the law of adverse possession. It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.
17. It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out 5 of 9 ::: Downloaded on - 07-03-2024 03:00:42 ::: Neutral Citation No:=2024:PHHC:031718 RSA-158-1995 (O&M) 2024:PHHC:031718 [6] which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it.
18. In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff."
10. In the present case, there is not a whisper in the plaint regarding the plaintiff-respondent having become owner by way of adverse possession. In the absence of any pleadings, the First Appellate Court has rightly rejected the plea of adverse possession.
11. Dealing with the argument of the learned counsel for the defendant-appellants that it is now settled law that there is no time limit for redeeming usufractuary mortgage. The Full Bench of this Court in the case of Ram Kishan (supra) has held as under :
"40. The limitation 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 6 of 9 ::: Downloaded on - 07-03-2024 03:00:42 ::: Neutral Citation No:=2024:PHHC:031718 RSA-158-1995 (O&M) 2024:PHHC:031718 [7] secured in case of usufructuary mortgage, where rents and 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 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 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 mortgagee.
7 of 9 ::: Downloaded on - 07-03-2024 03:00:42 ::: Neutral Citation No:=2024:PHHC:031718 RSA-158-1995 (O&M) 2024:PHHC:031718 [8] 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 well 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 Prabhakaran'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 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.
43. Having answered the questions of law framed, we do not find any merit in the present appeal filed by the 8 of 9 ::: Downloaded on - 07-03-2024 03:00:42 ::: Neutral Citation No:=2024:PHHC:031718 RSA-158-1995 (O&M) 2024:PHHC:031718 [9] mortgagees to seek declaration in respect of their title. The appeal is dismissed."
12. In view of the law laid down by the Full Bench of this Court, there is no period of limitation for redemption in an usufructuary mortgage. In view thereof, the present suit would not be maintainable and same is deserves to be dismissed. The appeal is accordingly allowed. The judgments and decrees passed by both the Courts are set aside, the suit accordingly stands dismissed. Pending applications, if any, also stand disposed off.
05.03.2024 (ALKA SARIN) Ankur JUDGE
NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO Neutral Citation No:=2024:PHHC:031718 9 of 9 ::: Downloaded on - 07-03-2024 03:00:42 :::