Shyam And Others vs Hari Ram And Others
2022 Latest Caselaw 16198 P&H

RSA No. 2675 of 2022 (O&M)                                                 -1-

       IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                      CHANDIGARH
118
                                               RSA No. 2675 of 2022 (O&M)
                                               Date of decision : 08.12.2022
Shyam and others
                                                                     ...Appellants
                                         Vs.

Hari Ram and others
                                        ...Respondents
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA

Present:     Mr. Rajesh Lamba, Advocate
             for the appellants.
                        ...

HARKESH MANUJA, J. (Oral)

CM-9285-C-2022

This is an application seeking condonation of delay of 1301 days

in refiling the present appeal. For the reasons stated in the application, which is

even supported by an affidavit of the learned counsel, sufficient cause has been

made out for condonation of delay, as such, the application is allowed and

delay of 1301 days in refiling the appeal is ordered to be condoned.

RSA No. 2675 of 2022

Challenge in the present regular second appeal has been made to

the judgments and decrees dated 30.11.2016 and 17.01.2019 passed by the

courts below whereby a suit for possession by way of redemption, filed at the

instance of respondents has been decreed.

Brief facts of the case are that the respondents/plaintiffs filed a

suit for redemption regarding suit property measuring 8 kanals 3 marlas

situated within the revenue estate of Village Nangal Jat, Tehsil Hathin, District

Palwal by alleging themselves to be owners/mortgagors of the same. It was

pleaded at their instance that the suit property was previously mortgaged

in favour of predecessor-in-interest of appellants-defendents and the same was

got redeemed vide mutation No. 1509 dated 14.04.1906, however, the same

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was again mortgaged in their name vide mutation No. 1510 dated 14.04.1906.

Accordingly, respondents/plaintiffs prayed for redemption of usufructuory

mortgage besides even claiming possession of the suit land.

Upon notice, appellants-defendents contested the suit by setting

up a claim that they had become owner in possession of suit property as the

period of redemption already stands elapsed. The trial Court vide its judgment

and decree dated 30.11.2016 decreed the suit in favour of

respondents/plaintiffs.

Aggrieved against the judgment and decree passed by the trial

Court, appellants-defendants filed first appeal which was came to be dismissed

by the court of District Judge, Palwal vide its judgment and decree dated

17.01.2019.

By way of present appeal, the judgments and decrees passed by

the courts below have been impugned. It has been vehemently contended on

behalf of the appellants that the courts below went wrong while dismissing the

suit by misreading and misinterpreting the documentary evidence available on

record. Learned counsel for the appellants further submits that the suit property

mortgaged in question was never proved to be usufructuory mortgage and thus,

the suit filed at the instance of respondent-plaintiff was barred by Limitation.

I have heard learned counsel for the appellants and gone through

the paperbook and find no substance in the submissions made on behalf of

appellant-defendant. Un-disputedly, the suit land was mortgaged in favour of

predecessor-in-interest of appellants by the predecessor-in-interest of

respondents. Based on a proper appreciation of the documentary evidence

available on record, concurrent finding of fact has been recorded by the courts

below that the mortgage in question happened to be usufructuory mortgage

where possession was handed over to the mortgagee in lieu of money.

Learned counsel for the appellant has not been able to specifically

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pointed out any documentary evidence which has been misread and

misinterpreted or even not taken into consideration by the courts below. In this

view of the matter, once mortgage in question was found to be usufructuory

mortgage and there was no period fixed for redemption of the same as held by

Hon'ble Supreme Court in case titled as 'Singh Ram Versus Sheo Ram, 2014

(4) RCR (Civil) 179', the right of redemption was not lost by afflux of time and

thus, the suit filed at the instance of respondents-plaintiffs was rightly decreed

by both the courts below.

Accordingly, I do not find any merit in the present appeal as no

question of law much less substantial question of law is involved therein.

Resultantly, the appeal is ordered to be dismissed in limnie.

Pending application(s), if any, shall also stand disposed of.

08.12.2022                                         (HARKESH MANUJA)
Harish Kumar                                            JUDGE

               Whether speaking/reasoned    :    Yes/No
               Whether reportable           :    Yes/No




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