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
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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
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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-
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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.
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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
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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
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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.
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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
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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
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