Mr. Amit Rawal, J. - (1.) (Oral) - Appellants-defendants No. 1, 2 and 37 are aggrieved of the judgments and decrees rendered by both the Courts below in a suit for declaration and joint possession.
(2.) Mr. V.K. Jain, learned Senior Counsel assisted by Mr. J.L.Malhotra, Advocate appearing on behalf of the appellants-defendants No. 1, 2 and 37 submits that the Courts below erred in holding that plaintiffs got ⅔rd share of the mortgaged property redeemed from the mortgagee on 24.12.1996. Rather it should have been held that plaintiff-respondents were not competent to redeem the mortgaged property partially. He further submits that appellants had been subrogated in place of the mortgagees and therefore, plaintiffs and other mortgagors - Surti and Sukhman were competent to redeem the property from the mortgagees. The suit for possession was not maintainable as the appellants had been subrogated in place of the mortgagees and therefore, they should have filed the suit for redemption and not for possession. The status of mortgagor and mortgagee came to an end when the preliminary decree was passed on 15.12.1976 after expiry of 12 years and the persons, i.e., appellants, who, got the suit land redeemed, will automatically become owners of the mortgaged property and this vital aspect has not been noticed by both the Courts below. The suit for possession was not maintainable and the counter claim seeking declaration that they have become full owners by way of redemption has erroneously been declined by the Courts below. He further submits that appellants had stepped into shoes of the mortgagors, whereas, respondent-plaintiffs have purchased the share from the erstwhile mortgagors and did not seek redemption of the mortgagee and payment of ⅔rd share amount to the mortgagee tantamounts to extinguishment/creating of right which requires registration under the provisions of Section 17(1)(C) and (2) of the Registration Act. In support of his contentions, he relies upon the judgment rendered by the Hon'ble Division Bench of this Court in Gurdial Singh Kehar Singh and others v. Kartar Singh and others 1964 AIR (Punjab) 141 . He further relies upon the judgments rendered in Basheshar Nath and others v. Municipal Committee Moga AIR 1940 Lahore 68 and Naman and another v. Hari Singh AIR 1941 (Lahore) 246 . He further submits that suit is also beyond the period of limitation as the mortgagee is of year 1996 and present suit had been filed on 14.06.2000 and in this regard relies upon the ratio decidendi culled out by the Hon'ble Supreme Court in Valliama Champaka Pillai v. Sivathana Pillai and others, AIR 1979 Supreme Court 1937 and thus, urges this Court to formulate the following substantial questions of law as carved out in the memorandum of appeal which read thus:- (i) Whether the relationship of mortgagor and mortgagee comes to an end on the passing of the Preliminary Decree, if so to what effect (ii) Whether a mortgage, which has been redeemed, can be redeemed by the other co-mortgagors, on paying proportionate consideration, as per their share to the mortgagee (iii) Whether a partial redemption is permissible in the eyes of law or not (iv) Whether one of the mortgagors, on redemption of the mortgage is subrogated in place of the mortgagee and the non-redeeming co-mortgagor can file a suit for possession without seeking redemption or not (v) Whether a co-mortgagor, who redeems the property, becomes owner, if the property is not redeemed within the prescribed period of limitation by the other co-mortgagor (vi) Whether a co-mortgagor can sue for possession directly, without seeking redemption of the land from their co-mortgagors (vii) Whether the suit for possession was maintainable (viii) Whether the suit was barred by limitation in the peculiar facts and circumstances of the case (ix) Whether the findings of the Courts below are based on non-consideration of the oral and documentary evidence and misreading thereof, are vitiated in the eyes of law
(3.) Mr. Sudhir Mittal, learned counsel appearing on behalf of respondents No. 1 to 4 submits that the aforementioned suit seeking declaration and joint possession was filed on the ground that Bhagwani, Sukhman and Surti, daughters of Duli Chand had mortgaged the suit property, i.e., land and single storey house, vide registered mortgage deed dated 30.12.1966 in favour of defendants No. 3 to 9, for a sum of Rs. 35,000/-. During the subsistence of the mortgage deed, one of the mortgagors, namely, Bhagwani gifted her ⅓rd share, vide gift deed dated 17.01.1968 (Ex.P13) in favour of defendants No. 34 to 36, who, further gifted to Karan Singh, father of defendant No. 2, Bharat Singh, defendant No. 1 and defendant No. 37, vide gift deed dated 31.10.1968. It is in these circumstances, the appellant-defendants have stepped into the shoes of Bhagwani-mortgagor. Defendants No. 1 and 2 only filed a suit for redemption and preliminary decree was passed on 15.12.1976 against the mortgagees, i.e., defendants No. 3 to 9. Appeal preferred against the aforementioned preliminary decree was dismissed on 10.02.1981 and the Regular Second Appeal filed in this Court was also dismissed, vide judgment dated 19.07.1996 with a direction to the mortgagors to deposit the mortgaged amount within a period of three months from the date of the judgment.;