- (1.) Civil Misc.No.2690-C of 2011 For the reasons mentioned in the application, which is supported by an affidavit, delay of 18 days in re-filing the appeal is condoned. CM stands disposed of. R.S.A.No.989 of 2011
(2.) This Regular Second Appeal is directed at the instance of the appellant-plaintiffs against the judgments and decrees of both the Courts below, whereby their suit for declaration and permanent injunction to the effect that they have become absolute owners in possession of 1/3rd mortgaged share of the defendants measuring 3 kanals 16 marlas out of the total land comprising in khewat No.1158/1109, khatoni No.1480, Rect. & Killas Nos.152, killa no.5/1(1-10), 5/3(4-14), Rect. No.153, Killa No.1/1(5- 4) measuring 11 kanals situated at village Hassangarh, Tehsil and District Rohtak by efflux of time and the defendants have no right, title or concern with the suit land whatsoever, had been dismissed by holding that since the land was mortgaged with possession to the mortgagee, it has fallen under the definition of usufructuary mortgage and the argument of the appellantplaintiffs that it was either a simple or anomalous mortgage was rejected. It has also been held that there is no time limit to redeem the property by relying upon the decision of Full Bench of this Court in Ram Kishan and others Versus Sheo Ram and others, 2008 1 RCR(Civ) 334. The Appellate Court also reiterated the findings rendered by the trial Court by holding that there is no time limit for redemption of the usufructuary mortgage.
(3.) The said Regular Second Appeal was adjourned sine-die vide order dated 28.5.2012 in view of the fact that the Full Bench of this Court was under challenge before the Hon'ble Supreme Court in Civil Appeal No.5198 of 2008. The present Regular Second Appeal has been listed before this Court as the Hon'ble Supreme Court has already decided the matter vide judgment dated 21.8.2014 and the said judgment has been Singh Ram (D) through L.Rs. Versus Sheo Ram and others, 2014 4 RCR(Civ) 179. While disposing of the appeal, the Hon'ble Supreme Court affirmed the findings of the Full Bench. The relevant findings of the Hon'ble Supreme Court as culled out in Para Nos.14, 15 and 16 of the judgment are extracted herein below:- "14. We need not multiply reference to other judgments. Reference to above judgments clearly spell out the reasons for conflicting views. In cases where distinction in usufructuary morgagor's right under Section 62 of the T.P.Act has been noted, right to redeem has been held to continue till the mortgage money is paid for which there is no time limit while in other cases right to redeem has been held to accrue on the date of mortgage resulting in extinguishment of right of redemption after 30 years. 15. We, thus, hold the special right of usufructuary mortgagor under Section 62 of the T.P.Act to recover possession commences in the manner specified therein, i.e., when mortgage money is paid out of rents and profits or partly out of rents and profits and partly by payment or deposit by mortgagor. Until then, limitation does not start for purposes of Article 61 of the Schedule to the Limitation Act. A usufructuary mortgagee is not entitled to file a suit for declaration that he had become an owner merely on the expiry of 30 years from the date of the mortgage. We answer the question accordingly. 16. On this conclusion, the view taken by the Punjab and Haryana High Court will stand affirmed and contrary view taken by the Himachal Pradesh High Court in Bhandaru Ram (D) Thr. L.R. Ratan Lal v. Sukh Ram will stand over-ruled.";