D. S. Bajpai J. - (1.) THIS is a defendant's appeal against the judgment and decree dated 14-8-1978 passed by the Civil Judge, Gonda dismissing the defendant's appeal arising out of a suit decreed by the trial court by its judgment and decree dated 31-1-1978.
(2.) FACTS giving rise to the appeal are that the respondent filed a suit for declaration of possession with respect of the house in dispute on the allegation that one Ganesh Prasad was the owner who had mortgaged the said house on 31-3-1926 by executing a deed of usufructuary mortgage in favour of Sarju Prasad and ever since the mortgagee Sarju Prasad had been in possession over the said house. A further case was set up that the mortgage was redeemed orally and the mortgagor took possession. Thereafter Ganesh Prasad, the original mortgagor, died leaving his widow as sole heir. The respondent being the cousin of Ganesh Prasad asserted that since he was the heir of Ganesh Prasad he became the owner of the house and was well within his rights to file a suit for declaration and possession. The defendant resisted the suit and set up a case that Ganesh Prasad had four sons and that the plaintiff was not the only cousin of Ganesh Prasad and besides the plaintiff Kashi Ram and Salik Ram, real brother of the plaintiff also stood on the same footing. Right to the plaintiff to sue exclusively was also challenged. The case of the plaintiff to the effect that Ganesh Prasad's widow had not been heard of since last ten years was also stated to be incorrect. It was also averred that Ganesh Prasad had sold the equity of redemption in the year 1935 to Sarju Prasad for a consideration of Rs. 90/- and on the death of Sarju Prasad who was admittedly in possession during his life time his real brother Ganesh Prasad became the heir of Sarju Prasad. It was further stated that the house in dispute fell down on account of natural decay and the defendant invested Rs. 10,000/- by constructing a new house and he could not be ejected. On the pleadings of the parties the trial court framed ten issues as under :- 1 Whether the disputed property is under valued and court fee paid is insufficient ? 2.Whether the suit is beyond the jurisdiction of this court ? as alleged in para 23 of W. S. 3.Whether plaintiff is owner of the disputed house being heir of Ganesh Prasad ? 4.Whether Ganesh Prasad has sold the equity of redemption to Sarju Prasad in the year 1935? If so, its effect. 5.Whether Ganesh Prasad redeemed the house in dispute and brought the possession over it ? 6.Whether Ganga Prasad is the brother of Sarju Prasad and whether Raghunandan Prasad, Lalit Kumar, Prem Kumar and Jagat Kumar are the sons of Ganga Prasad and they are heir of Sarju Prasad ? 7.Whether Raghunandan Prasad, Lalit Kumar, Prem Kumar and Jagat Kumnar sold the house in dispute to defendant on 10-8-52 and handed over possession ? 8.Whether defendant invested Rs. 10,000/- in the reconstruction of the house ? 9.Whether suit is barred by time ? 10.To what extent relief, if any, is the plaintiff entitled ? Parties adduced oral and documentary evidence and the learned trial court recorded a finding that the house in dispute was redeemed by Ganesh Prasad who came in possession of the house and the plaintiff-appellant became owner of the said house as heir of Ganesh Prasad. A further finding was recorded that the right of redemption was not sold to Sarju Prasad with a further finding to the effect that the property was not sold to the defendant- appellant. The court further held that some constructions had been added to the house but the defendant did it at his own risk and as such it was to go to the plaintiff. It was on the basis of these findings that the court decreed the suit. Aggrieved the defendant filed an appeal before the lower appellate court. It was contended before the lower appellate court that the trial court went wrong in holding that the defendant-appellant was not in possession in 1952 and the court below failed to appreciate that the appellant was in possession over the house. The lower appellate court agreeing with the findings recorded by the trial court dismissed the appeal after recording its own findings. It is under these circumstances that the defendant-appellant has come to this Court in the present second appeal. I have heard learned counsel for the parties and perused the record. The learned counsel for the appellant has contended that the findings recorded by the two courts below are perverse and also against the settled principles of law. He submitted that the usufructuary mortgage cannot be orally redeemed more so when the mortgage amount cannot also be orally paid and therefore the story about redemption is unbelievable and the courts below committed a manifest error of law in accepting the same. I think the submission of the learned counsel is well founded. A usufructuary mortgage by a document can only be redeemed by executing another document and not by setting up a story that it was orally redeemed since the mortgage continues unless redemption by a subsequent deed and receipt for the consideration of the mortgage amount is executed and the courts below as such erred in holding otherwise. The learned counsel further submitted that limitation for bringing a suit for redemption of mortgage and for recovery of possession has been provided under Article 61 of the Limitation Act of 1963 which was to run from the date when right to redeem accrued read with Section 30-A of the Limitation Act and the right continued for 35 years and as such upto 1-1-1964 in the instant case while the suit was filed only in 1975. Learned counsel for the respondent could not indicate as to under what provision of the Limitation Act the suit was being filed within time. The courts below have not also seriously entered into this question. The suit, in the circumstances, was bound to fail. The courts below, therefore, erred in holding that the suit was within time. In view of the fact that the suit was not maintainable as also in view of the fact that it could not be held that mortgage had been redeemed I do not propose to enter into the other questions canvassed before me. The second appeal accordingly succeeds and is allowed with costs throughout. Regular Suit No. 171 of 1974 filed by the plaintiff, Avadh Ram, accordingly stands dismissed.;