Azad And Others vs Hari Parkash And Others
2023 Latest Caselaw 9583 P&H

                                                           Neutral Citation No:=2023:PHHC:085845




           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH
122                                                         2023:PHHC:085845

                                                  RSA-1749-2019
                                                  Date of decision: 07.07.2023

AZAD AND OTHERS
                                                                     ..Appellants
                                    Versus
HARI PARKASH (DECEASED) THROUGH LRS. AND OTHERS
                                                                   ..Respondents

CORAM: HON'BLE MR. JUSTICE ANIL KSHETARPAL Present: Mr. Sunil Kumar Rohilla, Advocate for Mr. Surinder Mohan Sharma, Advocate for the appellants.

ANIL KSHETARPAL, J(Oral)

1. This Regular Second Appeal was filed in the year 2019.

2. On 01.03.2023, the learned counsel representing the appellants

did not attend the hearing of the case resulting in dismissal of the appeal for

non-prosecution.

3. On 13.03.2023, on the application filed by the learned counsel

representing the appellants, the appeal was restored to its original number.

Thereafter, the case was taken up on 05.07.2023, again a request for an

adjournment has been made, which was accepted while notifying that no

further request for an adjournment shall be entertained.

4. Again, a request has been made for an adjournment.

5. This Court has considered the request, however, finds no

reasons to adjourn the case.

6. This Court has perused the paperbook.

7. The plaintiffs are challenging the correctness of concurrent

findings of facts arrived at by the Courts below. They claim to be

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Neutral Citation No:=2023:PHHC:085845

mortgagees in possession. They claim that the passage of time, on account of

failure to redeem the mortgage, they have become the owner. Both the

Courts have found that it is the case of usufructuary mortgage. A Larger

Bench of the Supreme Court in Singh Ram (D) through LRs Vs. Sheo Ram

and others, 2014 AIR (Supreme Court) 344 has held that the limitation for

redemption of the mortgage will not begin to run from the date of mortgage.

It is on the basis of the aforesaid judgment, both the Courts have dismissed

the suit. This Court has also examined the grounds taken in the

memorandum of appeal. It is stated that the defendants have not pleaded the

ingredients of usufructuary mortgage and, therefore, it should be treated as

anomalous mortgage.

8. It is evident from reading of para 21 of the trial Court judgment

that this issue has been examined in detail. It has been found that the

mortgage in question was a usufructuary mortgage and not anomalous

mortgage. Even the First Appellate Court on reappreciation of evidence

came to a conclusion that it was usually for usufructuary mortgage.

9. Hence, no ground to interfere is made out.

10. Dismissed.

11. All the pending miscellaneous applications, if any, are also

disposed of.

July 07th, 2023                                  (ANIL KSHETARPAL)
Ay                                                     JUDGE

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

Neutral Citation No:=2023:PHHC:085845

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