PANDIT RAM HAZARI Vs. RAM NARAIN

JUDGEMENT

(1.) This special appeal arises out of suit No. 165 of 1954 of the Court of Munsif, Ramsanchighat. district Barabanki. The plaintiffs-respondents (to be referred to hereafter only as plaintiffs) filed the suit against the defendant-appellant (to be referred to hereafter as the defendant) for recovery of possession over a grove, about the identity of which there is no dispute. The plaintiffs claimed to be the representatives of one Ganeshi, who had mortgaged this grove with possession with one Sita Ram under a mortgage-deed dated 20th June, 1873. There was a stipulation in the document that if the mortgage was not redeemed by a certain date in 1882, the mortgage-deed would be deemed to be a sale deed and that Sita Ram would thereafter be entitled to retain the grove as a purchaser thereof. This stipulation has been held to be only by way of a clog on the equity of redemption, and the document has been held to be a usufructuary mortgage-deed, pure and simple. The mortgagee Sita Ram was succeeded by one Gauri Shankar, who, under a document dated 15th June, 1906, transferred his interest in favour of the present defendant Ram Hazari, who is now in possession of the grove.

(2.) One of the contentions raised in the suit was that the mortgagor not having redeemed the mortgage within sixty years of the execution of the mortgagee-deed or the date stipulated for payment, the suit for redemption is now barred by time and that Ram Hazari has become full owner of the property. It was, on the other hand, contended on behalf of the plaintiffs that the liability under the mortgage-deed was admitted by Gauri Shankar in the document executed by him on 15th June, 1906, in favour of the defendant and that this acknowledgment extends limitation for redemption of the mortgage under Section 19 of the Limitation Act. The defendant also relied upon Article 134 of the First Schedule of the Indian Limitation Act, which prescribes a limitation of 12 years for recovering possession of immovable property mortgaged from the date the transfer becomes known to the plaintiff. It was contended that the transfer of the property in favour of Ram Hazari had come to the notice of the plaintiffs more than twelve years before the filing of the suit and that the suit had, consequently, become barred by time even under that article. The principal amount of the mortgage-deed was Rs. 50/-, but the parties were agreed that in case the suit was found to be within time, the plaintiffs would be entitled to obtain possession on payment of Rs. 35/- only. The trial Court held that the suit was within time and decreed the suit on payment of Rs. 35/- to the defendant. The appeal filed by the defendant was dismissed by the Civil Judge and the second appeal by our brother Beg, J.

(3.) In respect of the allegation regarding acknowledgment of liability, it has been observed by the learned single Judge: