MOHINDER SINGH Vs. GURBACHNA AND OTHERS

JUDGEMENT

(1.) THERE is no representation on behalf of the appellants. The second appeal is against the concurrent decrees granting the relief of redemption of mortgage dated 07.06.1944, executed by one Jagiri in favour of Sunder, the predecessor in title to the defendant. The suit had been filed on 02.08.1971 and the defence was that the plaintiffs suit was not maintainable and that the defendants were in possession of the property in their own right. It was also contended that the suit was barred by limitation. On the contention of the defendants that they were themselves the owners, the Court considered the fact that the defendants themselves had filed a suit against the plaintiffs for a declaration and the suit was dismissed finding that the possession as mortgagees and that the relief of declaration could not be sought. This judgment was upheld upto the High Court. Both the Courts therefore held that the defendants cannot deny the title of the plaintiffs or the predecessors and held that the previous decision itself concluded the issue of the plaintiff's entitlement to sue for redemption of mortgage.

(2.) THE issue relating to the plea of limitation raised by the defendant, the Court found that the appropriate Article applicable would be Article 61 of the Limitation Act and finding that the suit had been filed within 30 years from the date of mortgage on 07.06.1944 held that the suit was not barred by limitation. Although the case had been admitted on 18.12.1986 without framing a substantial question of law, I have examined the case to see whether there exists any substantial question of law for adjudication. The original admission without framing a question of law though is irregular, I cannot secure any relief for the admission or take up any issue as worthwhile for an adjudication, for, I find that the point of law of limitation raised simply did not exist. Even the case of denying the plaintiff's right as mortgagors stood also concluded by the earlier decision between the respective predecessors in title. The second appeal is wholly without merit and it is dismissed with costs against the defendant throughout. The plaintiff would be entitled to apply for a final decree of redemption of mortgage and for mesne profits.