Chain Singh vs Rameshwar Dutt
2025 Latest Caselaw 1558 HP

Himachal Pradesh High Court

Chain Singh vs Rameshwar Dutt on 7 July, 2025

Author: Vivek Singh Thakur

Bench: Vivek Singh Thakur

( 2025:HHC:21403 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Regular Second Appeal No.86 of 2019

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Reserved on: 30th June, 2025.

                                       Date of decision: 7th July, 2025





    Chain Singh                                              ...Appellant

                                       Versus
    Rameshwar Dutt                                           ...Respondent
    Coram

The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.

    Whether approved for reporting? Yes
    For the Appellant:             Mr. Ashok Sood, Sr. Advocate with Mr.Rajat,
                          r        Advocate vice Mr. Abhishek Banta,

                                   Advocate.

    For the Respondent:            Mr. Suneet Goel, Sr. Advocate with Mr.Vivek
                                   Negi, Advocate.



    Vivek Singh Thakur, Judge

This appeal under Section 100 of Code of Civil Procedure

has been preferred by the appellant/defendant against judgment and

decree dated 26.9.2018 passed by the District Judge, Solan in Civil

Appeal No. 15-S/13 of 2015, titled Chain Singh vs. Rameshwar

Dutt, whereby judgment and decree dated 28.2.2015 passed by the

Civil Judge (Junior Division), Kandaghat, District Solan in Civil Suit

No. 9-K/1 of 2013 titled Rameshwar Dutt vs. Chain Singh, has

been affirmed.

2 For convenience, parties herein-after shall be referred as per

their status in the suit i.e. plaintiff and defendant.

( 2025:HHC:21403 )

3 Plaintiff filed a suit under Section 60 of the Transfer of

Property Act and alternatively, under Sections 4, 5 and 6 of the H.P. Debt

.

Reduction Act, 1976 for restoration of possession of mortgaged land

comprised in Khata/Khatauni No. 32 min/54 bearing Khasra No. 302/113

min measuring 11 bighas situated in village Sainj, Pargana Bagri Kalan,

Tehsil Kandaghat, District Solan HP vide jamabandi for the year 2007-08.

The suit was decreed.

4 Being aggrieved by the judgment and decree passed by the

Trial Court, defendant had preferred an appeal in the Court of District

Judge, detailed supra, which was also dismissed and thereafter, present

appeal has been preferred, which was admitted on 13th March, 2019 on

the following substantial questions of law:-

1. Whether in a suit for redemption and possession in respect of usufructuary mortgage limitation of filing suit shall

start from date of mortgage or from the discharge and satisfaction of loan amount from the income of mortgaged

property when no specific time for repayment of loan is fixed under Mortgage Deed?

2. Whether both the learned Courts below failed to appreciate terms and condition of mortgage deed Ext.PW1/C in its right perspective and has misread, misconstrued and misapplied for determining the issue of limitation which has resulted in passing erroneous impugned judgments and decree?

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3. Whether the learned first Appellate Court below gravely erred in holding that the defendant has not led evidence on satisfaction and discharge of mortgage loan from the income

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of mortgaged property by not taking into consideration the

admissions having been made by plaintiff in plaint as well as in his statement in Court with regard to satisfaction of loan

amount long back more than 30 years ago from the income of mortgage property?

5 Ram Saran son of Luru was original owner of suit land in the

year 1943. He mortgaged the suit land by executing mortgage deed

dated 3rd September, 1943 (28.5.2000 Samvat Vikrami) Ext.PW1/C

whereby he mortgaged the suit land to Krishnia Ram son of Hari Ram

against debt of Rs.200/- received by him with a condition that till payment

of mortgage money, Krishnia shall enjoy the benefit from the mortgaged

land and on payment of mortgage money Rs.200/-, mortgagor shall be

entitled for redemption to recover the possession.

6 Later on, Ram Saran was in need of further money and he

received the additional amount of Rs.150/- from Krishnia Ram without

any written agreement, however its entry was recorded in revenue record

and mutation No. 232 was attested in this regard and as such, mortgage

amount became Rs.350/-.

7 Ram Saran vide sale deed dated 5.7.1960, for consideration

of Rs.500/-, sold the land to Sehaj Ram. Plaintiff Rameshwar Dutt is son

of Sehaj Ram. After death of Sehaj Ram, plaintiff Rameshwar inherited

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his share including the suit land. Therefore, Rameshwar Dutt entered into

the shoes of mortgagor and became mortgagor.

.

8 Estate and property of Krishnia Ram including the

possession of mortgaged land was inherited by his grandson Chain

Singh, who was not his real grandson, but by way of Will.

9 In furtherance to aforesaid sale by Ram Saran to Sehaj

Ram, mutation No. 304 Ext.PW1/D-A was attested on 22.8.1960

whereby ownership of suit land was transferred from Ram Saran to Sehaj

Ram. In this mutation, Krishnia Ram son of Hari Ram was shown as

mortgagee. Vide mutation No.177 Ext.PW1/G attested on 31.12.1990

mortgagee Krishnia Ram son of Hari Ram was substituted by Chain

Singh (defendant) son of Anokhi Ram.

10 In aforesaid facts and circumstances, suit for redemption

was instituted by plaintiff Rameshwar Dutt on 26.2.2013 on the ground

that defendant might have realized the profit of the value more than the

amount borrowed by predecessor-in-interest of plaintiff from predecessor-

in-interest of defendant and defendant was not entitled for any amount

but if the Court opined that defendant was entitled to any amount, the

plaintiff was ready to pay Rs.350/- being mortgage amount or any other

amount as may be determined by Court.

11 Suit was contested by defendant on the ground that right of

plaintiff to redeem the land had come to end and therefore, defendant

had become owner in possession of suit land because right of

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redemption had come to an end on completion of 30 years of the

mortgage whereafter, defendant had spent very huge amount on

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improvement and development of the suit land treating the same to be

land owned and possessed by defendant and thus, plaintiff had no right

to file the suit for redemption. Further that plaintiff had knowledge that he

was legally bound to get the land redeemed within a period of 30 years

from the mortgage and he or his predecessor-in-interest, did not make

any effort within 30 years of mortgage, therefore, right to redeem the land

had come to an end and false story with respect to realization of profit

from the agricultural land had been concocted by plaintiff.

12 Plaintiff has examined himself as PW1 and has placed

reliance on documents Ext.PW1/A examination-in-chief of plaintiff on

affidavit, copy of jamabandi Ext.PW1/B, copy of mortgage deed

Ext.PW1/C, copy of Padat Patwar Ext.PW1/D, copy of translation of

Padat Patwar Ext.PW1/D-A, copies of mutation Ext.PW1/E to Ext.PW1/G.

13 Defendant had examined himself as DW1 and had placed

reliance on his examination-in-chief on affidavit Ext.DW1/A.

14 No other evidence was led by either party.

15 Plaintiff in his examination-in-chief Ext.PW1/A had reiterated

the aforesaid facts with submission that defendant was not entitled for

any amount and in any case, plaintiff was ready to pay Rs.350/- or more

than that as determined by Court. He also stated that at the time of

mortgage, no time was fixed for redemption of mortgage. Further that

( 2025:HHC:21403 )

defendant was asked on 6.6.2012 for redemption of land but defendant

had not acceded to request of plaintiff and therefore, suit was filed. In

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cross examination, he has denied that he never offered mortgage money

to defendant but reiterated that in June, 2012 he had offered the payment

of mortgage money to defendant, but defendant did not agree to receive

the amount and to redeem the mortgaged land. The tone and tenor of

other suggestions to plaintiff on behalf of defendant, though denied, was

that defendant has not earned more than the mortgage money from

benefits of mortgaged land.

16 In his examination-in-chief, defendant has categorically

stated that mortgaged land was to be redeemed on or before 3.9.1973

i.e. within 30 years from execution of mortgage deed dated 3.9.1943 and

there was no condition in mortgage deed that profit received from

mortgaged land was to be adjusted against the mortgage money. Further

that at the time of purchase of land, Sehaj Ram (father of plaintiff) in the

year 1960 was having knowledge about the mortgage created in the year

1943 and if he would have intended to have possession of the same, he

was required to get the same redeemed within limitation period of 30

years from mortgage deed because the nature of mortgage was not of

such nature that it could be redeemed even after expiry of 30 years from

the date of mortgage. But plaintiff or Sehaj Ram had not paid mortgage

amount within 30 years after the creation of mortgage and therefore, their

( 2025:HHC:21403 )

right of redemption had come to an end and thus, suit is liable to

dismissed.

.

17 Learned counsel for defendant referring Section 62 of

Transfer of Property Act and Article 61 of Schedule of Limitation Act, 1963

prescribing period of limitation as well as judgment passed by the

Supreme Court in Singh Ram (deceased) through LRs. vs. Sheo Ram

and others reported in (2014)9 SCC 185, has contended that as claimed

by plaintiff, the mortgage money had been recovered much prior to period

of 30 years from the date of filing of suit and, therefore, for recovery of

mortgage money prior to more than 30 years prior to filing of suit,

limitation period for filing the present suit had expired and thus, suit is not

within limitation and further in view of nature of mortgage i.e. usufructuary

mortgage as evident from Ext.PW1/C, the mortgage money was to be

recovered from benefit of land and thus, mortgage money stood

recovered more than 30 years before filing of suit and in terms of

mortgage, the suit of the plaintiff is liable to be dismissed and therefore,

Courts below have committed mistake by passing the decree in favour of

plaintiff.

18 Learned counsel for plaintiff, referring the same provisions of

law as well as the same judgment passed by the Supreme Court has

submitted that in terms of mortgage deed Ext.PW1/C right of redemption

was given to mortgagor on payment of mortgage money and therefore,

submission, that mortgage money had been recovered from benefits of

( 2025:HHC:21403 )

mortgaged land much earlier even prior to 30 years from filing of suit, is

not tenable and therefore, Courts below have rightly accepted and

.

adjudicated the right of plaintiff to have possession on account of

redemption.

19 Section 62 of Transfer of Property Act reads as under:-

"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-deed and all documents relating to the mortgaged property which are in the possession or

power of the mortgagee,--

(a) where the mortgagee is authorized to pay himself the mortgage -money from the rents and profits of the property.

--when such money is paid:

(b) where the mortgagee is authorized to pay himself from such rents and profits or any part thereof a part only of the

mortgage -money,--when the term (if any), prescribed for the payment of the mortgage-money has expired and the

mortgagor pays or tenders to the mortgagee the mortgage-

money or the balance thereof or deposits it in Court as

hereinafter provided."

20 Relevant provisions of Article 61(a) of Limitation Act reads as

under:-

"61. By a mortgagor

(a) to redeem Thirty years When the right to redeem or recover or to recover possession possession of accrues.

( 2025:HHC:21403 )

immovable property mortgaged."

.

21 Ratio of judgment of the Supreme Court in Singh Ram's

case supra has been stated as under:-

"21. We need not multiply reference to other judgments. Reference to above judgments clearly spell out the reasons for conflicting views. In cases where distinction in

usufructuary mortgagor's right under Section 62 of the T.P. Act has been noted, right to redeem has been held to continue till the mortgage money is paid for which there is no

time limit while in other cases right to redeem has been held

to accrue on the date of mortgage resulting in extinguishment of right of redemption after 30 years.

22. We, thus, hold that special right of usufructuary

mortgagor under Section 62 of the T.P. 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 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 answer the question accordingly."

22 As held by the Supreme Court, limitation period for filing the

suit for redemption, to recover the possession commences from the date

when mortgage money is paid and mortgagee does not become owner

( 2025:HHC:21403 )

merely on expiry of 30 years from the date of mortgage. In present case,

nature of mortgage deed is that land was handed over to predecessor-in-

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interest of defendant with condition that till payment of mortgage money,

mortgagee shall be entitled to enjoy the benefits/fruits from the suit land

and mortgagor shall have right to redeem the same on payment of

mortgage money. Therefore, claim of defendant, that mortgage money

had not been recovered from benefits of land, is not only contrary to

pleadings and evidence led by defendant but is also not in consonance

with terms and conditions of mortgage deed. Stand of defendant is also

contrary to provision of Section 62 of Transfer of Property Act as well as

ratio of law laid down by the Supreme Court in its judgment, referred

supra.

23 Mortgage money was due on the date of filing of suit.

According to plaintiff, he had offered the mortgage money in June, 2012.

Therefore, limitation period to file the suit for redemption shall commence

from June 2012 and thus suit filed by plaintiff, was within limitation. The

understanding and claim of plaintiff contrary to terms and conditions of

mortgage deed Ext.PW1/C that defendant was not entitled for any

amount for having enjoyed the benefits of mortgaged land for a

considerable long time, has no impact on right of plaintiff available with

him under law to file a suit for redemption within 30 years from the date of

offer of payment of mortgage money particularly when there is alternative

stand of plaintiff as well as in his deposition in Court that he is ready and

( 2025:HHC:21403 )

willing to pay mortgage money to defendant or any other amount as

determined by Court.

.

24 Plea of defendant in appeal is entirely in conflict with stand

taken by him in written statement as well as in his deposition in Court.

Therefore, there is no merit in plea raised by defendant in this appeal.

25 The Courts below have appreciated the evidence on record

including Ext.PW1/C as well as provision of law in right perspective and

there is no misreading, misconstruction or mis-interpretation of evidence

and/or law relevant in present matter.

26 The substantial questions of law are answered in aforesaid

terms.

27 In view of above, there is no merit in appeal and therefore,

impugned judgment and decree passed by the Trial Court, affirmed by

the District Judge, is upheld.

Accordingly, the appeal is dismissed. No order as to costs.

(Vivek Singh Thakur), Judge.

7th July, 2025(MS)