RAM RAKHA MAL Vs. RODA AND ORS.

JUDGEMENT

(1.) THIS is a Plaintiff's appeal against a judgment and decree of Mr. Sansar Chand, Senior Subordinate Judge, Hoshiarpur, affirming a decree of the trial Court wherein it had been held that the Punjab Restitution of Mortgaged Lands Act, IV of 1938 applied to the present suit.

(2.) THE ancestors of the Defendants effected a mortgage of the land in dispute on the 12th of November, 1879. On the 31st of July, 1945, the Defendants made an application for restitution under Section 4 of the Punjab Restitution of Mortgaged Lands Act hereinafter termed 'the Punjab Act', which was allowed on the 13th of March, 1946, and possession was taken thereafter. On the 7th of June, 1946, the Plaintiff applied for possession of the land in dispute on the ground that the mortgage had ceased to exist because of the lapse of 60 years under Article 148 of the Indian Limitation Act. Both the Courts dismissed the suit holding that if a mortgage was subsisting on the date when the Punjab Act came into force, then in that case the application could be made at any time subsequently.

(3.) Mr. D.N. Aggarwal submits that all that Section 2 provides is that if a mortgage was submitting on the date when the Punjab Act came into force, then an application could be made under Section 4 of that Act. But that does not mean that if in the period intervening after the coming into force of the Punjab Act, the redemption of a mortgage becomes barred by time under Article 148 and is affected by Section 28 of the Indian Limitation Act even then an application can be made under Section 4. In a judgment of this Court in Chushia v. Gurditta, 51 P.L.R. 364, where it had been found that the mortgage was effected in 1879, was held that after the lapse of 60 years from the date of the mortgage no restitution could be owed and the Act would not apply because the mortgage itself would cease to exist. Achhru Ram, at p. 386 observed as follows: