SANTA SINGH Vs. PARKASH SINGH

JUDGEMENT

(1.) This is unsuccessful plaintiffs' regular second appeal, who, though succeeded before the trial Court in the matter of suit for possession by way of redemption of mortgage but lost the same before the appellate Court wherein suit was dismissed on the only issue of limitation.

(2.) At this stage all that needs to be determined is as to whether the findings of learned appellate Court returned on Issue No. 2 need any interference. The bare minimum facts that need to be mentioned for deciding the issue aforesaid reveal that the plaintiffs filed a suit for possession by way of redemption of 1/17th share of land measuring 750 kanals 1 marla situated in Pahuwind, Tehsil Patti, as described in the plaint. It was, inter alia, pleaded that Sunder Singh son of Lal Singh was the owner of 1/17th share of the suit land and he had mortgaged the same with defendant Nos. 1 to 7 for a sum of Rs. 1500/-. The original mortgage deed was with the defendants and copy could not be obtained as the mortgage deed was registered as Kasur, District Lahore, which is now a part of Pakistan. While giving the particulars and the details of the mortgagee, the name of mortgagee was stated to be Sunder Singh son of Lal Singh and Ganda Singh son of Sher Singh. Defendants 1 to 7 were stated to be heirs of Ganda Singh. The date of mortgage was stated to be 5-5-1917 and the mortgage was for a sum of Rs. 1500/-. The limitation of mortgage, it was further pleaded in the plaint, was seven years, which was certainly over when the suit was filed on 4-1-1971. It was further pleaded that no interest was to be paid on the mortgage amount. The possession of the land at the time of mortgage was in the name of Sunder Singh, who had died about 20 years back and that plaintiffs and defendants 8 and 9 were his legal heirs but inasmuch as defendants 8 and 9 had not joined the plaintiffs, they were arrayed as party-defendants and defendants 1 to 7 were requested to admit the claim of the plaintiffs and take the mortgage amount and redeem the land but they refused and accordingly the suit was filed and the present appeal was filed with the result already indicated above.

(3.) Learned appellate Court while reversing the findings on Issue No. 2 pertaining to the suit being within limitation held as follows : "The main contention of the counsel for the appellants is that the plaintiffs have not been able to prove the particulars of the mortgage in order to show that the suit for redemption was within limitation, and, therefore, it cannot be held that the suit has been filed within time. The counsel for the respondents has argued that period of limitation was seven years, fixed in the mortgage deed, and accordingly the suit has been filed within time under the law. Admittedly, this is a case, in which the original mortgage deed has not seen the light of the day and the learned counsel for the respondents has tried to prove the terms of the mortgage from the copy of the mutation placed on the record, in which, the date of mortgage was given as 5-10-1917. But perusal of the mutation does not show what was the period of mortgage, nor Ex.P2, gives the period of mortgage on which the learned trial Court has placed reliance and the counsel for the respondents has not been able to show as to from where, he has concluded the period of mortgage to be seven years, and the onus was on the plaintiff to prove that the suit was being filed within sixty years of the mortgage and mere mentioning of the mortgage in the copy of the mutation, does not absolve him from proving that the redemption suit was within time, and accordingly, I come to the conclusion that there is nothing on the record to. hold that the period of redemption being seven years. Therefore, suits does not become within time and accordingly reverse the findings of the trial Court, on the issue of limitation.