- (1.) Balwant Kaur plaintiff through Dalip Singh, general attorney, has filed this Regular Second Appeal, against the judgment and decree of the learned Additional District Judge, Amritsar, dated 10th October, 1973, by which the judgment and decree dated 21st October, 1970, of the trial Court were set aside and her suit for the possession by way of redemption has been dismissed.
(2.) In order to appreciate the controversy, certain salient features of the case may be noticed :- Bhola Singh, father-in-law of the plaintiff, had mortgaged some of his land in district Lyallpur (Pakistan) in favour of Smt. Banto and Swaran Singh defendants. Bhola Singh died in Pakistan leaving behind his two sons Kartar Singh and Ganga Singh defendant. After the death of Kartar Singh, Balwant Kaur plaintiff, his widow, filed a suit for permanent injunction restraining Smt. Banto and Swaran Singh from interfering in her possession. The suit was dismissed by the trial Court on 27th April, 1960, and the decision of the trial Court was upheld right upto this Court. Thereafter, the plaintiff filed an application for the redemption of the mortgage on payment of Rs. 1,000/- before the Assistant Collector Ist Grade, Patti, alleging that the mortgage had been effected for Rs. 7000/- but Rs. 6000/- had already been paid to the mortgagees. The application was contested by the mortgagees (defendants No. 1 and 2) and the same was rejected by the Assistant Collector Ist Grade, Patti, on 31st December, 1963. Thereafter, the plaintiff filed a regular civil suit under Section 12 of the Redemption of Mortgages Act, for declaration that the order of the Assistant Collector was void and without jurisdiction and that she was entitled to get the suit land redeemed on payment of Rs. 1000/-. The suit was decreed on 30th June, 1966 and a preliminary decree for possession of the suit land redemption on payment of Rs. 1000/- was passed. Feeling aggrieved from the said judgment and decree, Smt. Banto and Swaran Singh preferred an appeal which was partly allowed by the learned Additional District Judge, Amritsar, vide his order dated 17th December, 1968, and the decree passed by the learned Sub Judge was modified to this extent that the plaintiff was granted a decree for declaration that she was entitled to claim redemption of the suit land on payment of Rs. 1000/- only to defendants No. 1 and 2 and the order of the Assistant Collector passed on 31st December, 1963, was held to be illegal, void and inoperative against the plaintiff. It appears that after the said decision of the learned Additional District Judge, on some wrong advice, the plaintiff filed a second application before the Assistant Collector Ist Grade, Patti, on 21st July, 1969., under Section 4 of the Redemption of Mortgages Act for the redemption of the land in dispute. The application was dismissed on 30th December, 1969, on the ground that no second application lay. Thereafter, the present suit out of which this second appeal has arisen, was filed by the plaintiff for possession by redemption of the suit land on payment of Rs. 1000/-. The suit was contested by Ganga Singh defendant 3 inter alia on the grounds that the plaintiff had no locus standi to sue, that the suit was barred by the principle of res judicata, that he had purchased the mortgagee rights from defendants No. 1 and 2 for Rs. 7000/- and that in case the plaintiff was held to be entitled to redeem the land in suit then she should be ordered to pay Rs. 7000/-. On the pleadings of the parties, several issues were framed. The parties led evidence. On consideration of the entire evidence, the trial Court held that the plaintiff being the mortgagor had the locus standi to sue, that the suit was not barred by the principle of res judicata, that Ganga Singh defendant had purchased the mortgagee rights from defendants No. 1 and 2 for consideration of Rs. 7000/- and that the plaintiff was entitled to get the suit land redeemed on payment of Rs. 7000/- to Ganga Singh defendant No. 3. In view of these findings a preliminary decree for possession by redemption of the suit land on payment of Rs. 7000/- was passed in favour of the plaintiff and against the defendants. Feeling aggrieved from the judgment and decree of the trial Court, Ganga Singh defendant preferred an appeal. During the course of arguments, an entirely new point was raised on behalf of Ganga Singh that the suit was barred by limitation. The learned appellate Court accepted this plea and held that as Smt. Balwant Kaur had not filed a suit within one year from the date of order of the Collector dated 31st December, 1963, the suit for possession by way of redemption was barred by limitation. So far as the issues in the suit were concerned, the findings of the trial Court were affirmed. In view of the finding on the question of limitation, the learned Additional District Judge allowed the appeal and dismissed the suit of the plaintiff. It is in these circumstances that the present Regular Second Appeal has been filed.
(3.) It was vehemently contended by Mr. Puran Chand, learned counsel for the appellant, that the suit could not be dismissed as barred by limitation. According to the learned counsel, no second application lay under Section 4 of the Redemption of Mortgages Act, that the present suit had not been filed under Section 12 of the Redemption of Mortgages Act, that the same had been filed for possession by redemption and that as the right of redemption did not stand extinguished, the plaintiff was entitled to the grant of the decree for possession by redemption.;