NATHI AND ORS. Vs. PRAHLAD AND ORS.

JUDGEMENT

(1.) THE defendants are in appeal against the judgment and decree of both the Courts below. The plaintiffs filed suit for declaration with consequential relief of injunction alleging that land measuring 28 kanal 16 marla situated within the revenue estate of village Sondhad, Tehsil Hodal, District Faridabad was mortgaged with possession by the predecessors of the plaintiffs to the proforma defendants No. 11 to 19 alongwith the predecessors of the defendants No. 1 to 10 for a sum of Rs. 60/ - in the year 1906. Mutation was also entered and sanctioned at Sr. No. 3592 on 30.4.1908. The plaintiff has also given the old khasra numbers of the land in dispute as prior to consolidation, the land was measured in bighas and biswas and it is alleged that it was 18 bighas 0 biswas. The case of the plaintiffs is that they have already redeemed the land in question after making payment to the defendants and thus sought a declaration that they are owner in possession and the entry reflected in the revenue record showing the defendants to be mortgagee with possession is illegal and against the record. In alternative, they have also prayed for decree for possession alleging that in case the Court comes to the conclusion that the land has not been redeemed, the plaintiffs may be given possession on payment of mortgage money of Rs. 60/ -. In the written statement, the defendants raised preliminary objections that the suit is not maintainable and the plaintiffs have no locus standi. On merits, it was alleged that as per oral settlement, the plaintiffs' predecessor -in -interest did not redeem the suit land within ten years from the date of mortgage. It is also alleged that they had tendered the mortgage amount after ten years which was not received and after the expiry of ten years the predecessors -in -interest of the defendants have become the owner of the property and thus a separate counter claim was also filed to claim that they have become the owner of the property in dispute as right of mortgage has been foreclosed. The plaintiffs not only filed replication but also filed reply to the counter claim alleging that no period of redemption was ever fixed. On the pleadings of the parties, various issues were framed by the learned trial Court and both the parties adduced their respective oral as well as documentary evidence in support of their case.

(2.) BOTH the Courts have recorded concurrent finding of fact that the land was mortgaged with the defendants, there was no time fixed for the purpose of redemption and while relying upon Full Bench judgment of this Court in the case of "Ram Kishan and others v. Sheo Ram and others", (2008 -1) 149 P.L.R. 1 (F.B.) granted decree for redemption/possession on the ground that in case of usufructuary mortgage, the order of redemption could be passed at any time because the principle coined by this Court is that 'once a mortgage always a mortgage'. Aggrieved against the judgment and decree of both the Courts below, present appeal has been filed.

(3.) I have heard learned counsel for the appellants and perused the record.