Punjab-Haryana High Court
(O&M) State Of Punjab vs Bakhshish Singh on 15 May, 2024
Neutral Citation No:=2024:PHHC:068587
RSA-1954-1989 (O&M) --1--
129 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-1954-1989 (O&M)
Reserved on:-09.04.2024
Pronounced on:-15.05.2024
The State of Punjab and another ....Petitioners..
vs.
Bakshish Singh and others ....Respondents.
CORAM: HON'BLE MR. JUSTICE HARKESH MANUJA
Present: Mr. Siddharth Sandhu, AAG, Punjab.
Mr. A.S. Khinda, Advocate,
for the respondents.
*****
HARKESH MANUJA J. (Oral)
1. By way of present appeal, challenge has been laid to the
judgment and decree dated 02.03.1989 passed by the Court of Additional
District Judge, Ropar, whereby the judgment and decree dated 21.12.1985,
passed by learned Sub-Judge Ist Class, Kharar, stands reversed thereby
decreeing suit for declaration as well as permanent injunction filed at the
instance of respondents-plaintiffs.
2. Briefly stating, the respondents-plaintiffs filed a suit for
declaration as well as permanent injunction, claiming themselves to be
owner in possession of the suit property situated within the revenue estate of
village Chapper Chiri, H.B. No.195, Tehsil Kharar, District Ropar (now in
District SAS Nagar Mohali), besides challenging mutation Nos.1329, 1330
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RSA-1954-1989 (O&M) --2--
and 1331, sanctioned on 10.08.1981, recorded in favour of custodian
department, treating it to be as evacuee property thereby affecting the rights
of the respondents-plaintiffs. The respondents-plaintiffs also prayed for grant
of permanent injunction for restraining the appellants-defendants from
auctioning the property in question during pendency of the suit.
3. In the written statement, stand taken by the appellants-
defendants was that the suit property was mortgaged by the respondents-
plaintiffs in favour of one Bali Mohammed on 14.08.1946 and the same was
never got redeemed even after the expiry of 30 years; the said person
namely, Bali Mohammed having migrated to Pakistan, the property thus
vested in custodian and therefore, belonged to the appellants-defendants and
as such, the mutations entered in favour of Custodian Department on
10.06.1981 were valid and legal. In view of this, it was also pleaded that the
suit property for its disposal was to be governed under the provisions of the
Punjab Package Deal Properties (Disposal) Act, 1976 (for short, 1976 Act).
4. The trial Court vide its judgment and decree dated 21.12.1985,
dismissed the suit filed at the instance of respondents-defendants while
holding that the suit property was mortgaged by respondents-plaintiffs in
favour of Bali Mohammed on 14.08.1946 and the same been not got
redeemed within 30 years, thereafter, vested with the Mortgagee Bali
Mohammed and in turn to custodian, upon his migration to Pakistan and the
impugned mutations were thus valid in law. Simultaneously, finding
respondents-plaintiffs to be in possession of the suit property, a decree for
permanent injunction was passed in their favour, restraining the appellants-
defendants from dispossessing them except in due course of law.
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5. Aggrieved of the judgment and decree passed by the trial Court,
whereby relief of declaration was denied to the respondents-plaintiffs, they
filed first appeal, which came to be allowed by the Court of the then
Additional District Judge, Ropar, vide judgment and decree dated
02.03.1989 having recording that the respondents-plaintiffs were admittedly
in possession of the suit property and the appellants-defendants having failed
to file a suit for possession within 12 years from the expiry of 30 years
period available to the respondents-plaintiffs for seeking redemption of the
suit property, the right, title or interest vested with the respondents-plaintiffs
qua the suit property did not get extinguish.
6. Impugning the aforesaid judgment and decree dated
02.03.1989, passed by the first appellate court, learned counsel for the
appellants submits that once the period of 30 years from the date of
mortgage stood expired, the right to seek redemption qua the suit property
available to the respondents-plaintiffs got extinguished and the same vested
with the custodian; the mortgagee having migrated to Pakistan, the
mutations in question were validly entered. He further submits that mere
non-filing of suit for possession at the instance of appellants-defendants
within twelve years could not have extinguished their rights in the property
being successor of mortgagee, who became owner thereof as there could not
be any limitation for filing a suit for possession based on title and thus, the
findings recorded by the first Appellate Court were wholly perversed and the
appellants-defendants were therefore well within their right to put the suit
land to auction, under the provisions of 1976 Act.
7. On the other hand, learned counsel representing respondents-
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plaintiffs submits that even if the suit land had been mortgaged in the year
1946 in favour of Bali Mohammed who migrated to Pakistan, the same did
not vest with the appellants-defendants upon expiry of 30 years as there was
no limitation for claiming redemption of mortgage and thus the first appeal
filed at the instance of respondents-plaintiffs was rightly allowed.
8. I have heard learned counsel for the parties and gone through
the record. I am unable to find substance in the submissions made on behalf
of the appellant.
9. As per the concurrent findings recorded by the Courts below
while relying upon the evidence available on record in the shape of revenue
document i.e. mutation (Ex.D1), the suit land was mortgaged by the
respondents-plaintiffs in favour of Bali Mohammed in the year 1946 and
there was no question of extinguishment of rights of the
mortgagors/respondents-plaintiffs regarding title of the suit property even
when no redemption proceedings were initiated at their instance within 30
years of mortage, there being no limitation for the same, especially, when
the mortgage was with delivery of possession to the mortgagee. The
aforesaid view finds support from the decision rendered by the Hon'ble
Apex Court in "Singh Ram vs. Sheo Ram, reported as 2014 Vol. 9 Supreme
Court cases, (Page-185). Relevant paras No.14 & 15 thereof are reproduced
hereunder:-
"14. 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
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redeem has been held to accrue on the date of mortgage resulting
in extinguishment of right of redemption after 30 years.
15. 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."
10 Thus, the mutations No.1329, 1330 and 1331 (Ex. D3 to D5)
entered in favour of appellants/defendants on 10.08.1981 have no value in
the eyes of law being illegal, thereby, upholding the title of the suit property
in favour of respondents-plaintiffs while declaring them to be owner in
possession thereof.
11. Accordingly, in view of the discussion made herein above,
finding no merits in the suit for declaration and permanent injunction filed at
the instance of respondents/appellants is decreed and the present appeal, is
dismissed.
15.05.2024 (HARKESH MANUJA)
sonika JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/ No
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