HARBANS Vs. OM PARKASH

JUDGEMENT

(1.) THIS is plaintiffs second appeal.

(2.) PLAINTIFF filed civil suit contending therein that the land in dispute was mortgaged by the ancestors of one Bhira with the fore-fathers of plaintiff and mortgage has not been got redeemed by the mortgagor within 30 years and so, the plaintiff and defendants 2 and 3, have become owners by efflux of time. Upon notice of suit, defendant No. 1 contested the suit and alleged that mortgage has already been redeemed. He denied that plaintiff and defendants 2 and 3 have become owners by efflux of time. Trial Court decreed the suit, but on appeal by defendant No. 1 judgment of the trial Court has been modified and it has been held that plaintiff and defendants 2 and 3 have not become owners as there is no period of limitation to redeem usufructuary mortgage. It has, however, been held that defendant No. 1 has failed to prove the mortgage has been redeemed. Against the judgment and decree of the first appellate Court, plaintiff has come in second appeal.

(3.) AFTER hearing the counsel and going through the record, I am of the view that the judgment cited by the counsel for plaintiff in Ram Rakha's case has no application to the facts of the present case. In Ram Rakha's case (supra), the point in issue was not considered. In this case, it is the admitted case of the parties that mortgagee is in possession of the property in dispute and no evidence has been brought on record by the mortgagee to show that mortgage was for a fixed period. Since no time was prescribed for redeeming the land, the mortgagor has the right to get the property redeemed, there being no limitation for redeeming the said mortgage. In this regard, reference be made to judgment in Panchanan Sharma v. Basudeo Prasad Jaganani and Ors. , 1995 H. R. R. 575. Consequently, this appeal being without any merit shall stand dismissed.