THAMAN SINGH (DIED) Vs. DIAL SINGH

JUDGEMENT

(1.) This is defendant's second appeal against whom suit for declaration and possession by way of redemption as a consequential relief has been decreed by both the Courts below.

(2.) The facts of the case giving rise to this appeal are that the suit was filed by the plaintiff-respondents for a declaration to the effect that they were entitled to the redemption of the land mortgaged and that order dated 1.12.1971 of the Assistant Collector 1st Grade was illegal, void and not binding upon them and also for possession on the ground that Bishana son of Jhaba was mortgagor of the land in dispute . Gurdev Singh, Jagat and Mohinder Singh sons of Thaman Singh got a Will dated 29.9.1962 executed by Bishana mortgagor in their favour. The plaintiffs filed a suit earlier for possession of the suit land against them and also against Thaman Singh. The plaintiffs got a declaration that the Will dated 26.9.1962 executed by Bishana was illegal, void and ineffective against reversionary rights. The suit was decreed for possession of the land subject to mortgagee rights of the defendant, Thaman Singh. In pursuance of the said decree dated 30.1.1965, the plaintiffs filed an application dated 3.11.1971 under section 4 of the Redemption of Mortgages (Punjab) Act, 1913 (shortly the Act) for redemption of the land in the Court of the Assistant Collector. The said application was contested on behalf of the defendant and ultimately it was dismissed on 1.12.1971 on the sole ground that the right of redemption was barred under the law of limitation at the time of filing of the application. The present suit was thus filed on 24.1.1972, i.e. within one year from the order of the Assistant Collector dated 1.12.1971, alleging that the said order was illegal, void and inoperative and not binding upon the plaintiffs, on the ground that the application filed by them for redemption of the land in dispute was well within limitation. It was also asserted that during the earlier civil litigation between the parties, the defendant never raised any objection that the land under mortgage with him was not liable to be redeemed. Therefore, the defendant was alleged to be estopped from raising the plea that the said land was not liable to be redeemed. It was also pleaded that the plaintiffs were entitled to deduct the period during which they were restrained by the lower Appellate Court, as well as by the High Court from getting possession of the suit land by passing the said orders to that effect. As a consequential relief, the possession of the suit land was sought by way of redemption. The defendant, Thaman Singh contested the suit inter alea on the ground that it was barred by time and that even the application for redemption which was dismissed by the Assistant Collector was filed after the period of limitation. It was also pleaded that the mortgage amount was more than Rs 900/- . It was also contended that the period spent in litigation could not be excluded since that litigation was not for redemption of the suit land. On the pleadings of the parties, the trial Court framed the following issues :-

(3.) The learned counsel for the appellant contended that the present suit for redemption was barred by time, because the limitation to file the suit was upto January 1, 1971 from the date of the original mortgage dated 6.3.1911 whereas the present suit was filed on 24.1.1972. In support of this contention, reference was made to Shiv Lal and others v. Chetram and other, 1971 AIR(SC) 2342 and, Padmawati v. Hans Raj, 1975 PunLJ 83.