Surinder Singh, J. - (1.) SHORN of details, the undisputed facts may be briefly noticed. On June 27, 1896, Sada Ram original owner of the property, which is 65 kanals of agricultural land, mortgaged the same in favour of Niranjan Dass for a partly amount of Rs. 85/ -. After the death of Sada Ram, the ownership rights in the land developed upon Banarsi Dass and Ram Sarup, Respondents (half share) and Shambhu etc., Respondents (half share). The latter set of Respondents sold their rights to Banarsi Dass and Ram Sarup, Respondents. Another transaction of a part of this land is also involved. In any case, there is no dispute that the Plaintiff -Respondents are the mortgagors for all intents and purposes. Similarly, there is also no controversy that the Defendants -Appellants are the mortgagees of the land in suit. The suit in the present case was filed by the mortgagors for redeeming possession of the mortgaged property and with a view to save limitation it wars alleged that the original mortgagee Niranjan Dass had filed a suit on March 13, 1909 in the Court of Munsif, Hissar in respect of the same mortgage dated June 27(sic), 1896 and in that suit, he had acknowledged the existence of this mortgage, which fact gave a fresh lease of life to the limitation for redemption of the mortgage.
(2.) THE suit was resisted by three Defendant who pleaded lack of knowledge in regard to the mortgage in question and also raised an objection about the action being barred by limitation. It was further asserted that the mortgagors had filed an application under the provisions of the Punjab Restitution of Mortgaged Lands Act, 1938 (Punjab Act No. IV of l958(sic)) (hereinafter referred to as the Act) and no relief having been granted to them in those proceedings, the present suit in the civil court was not competent. The trial court framed various issues to cover the contentious matters but it is needless to recapitulate all these issues as only two of them have been mooted in the present appeal. The decision of the Courts below in regard to the remaining issues has not been challenged by the Learned Counsel for the parties. The contested issues are Nos. 2 and 6 reproduced below: Issues 2. Whether the suit is within time ? O P. D 6. What is the effect of the dismissal of the application filed by the Plaintiffs under the Punjab Restitution of Mortgaged Lands Act, 1938? Regarding issue No. 2, Shri G. C. Garg, Learned Counsel for the Appellants, has contended that the mortgage having been effected on June 27, 1896, the present suit which was filed beyond the period of 60 years, is apparently barred. As regards the earlier suit filed in the year 1909, the argument is that no liability had been acknowledged by the Appellants in that suit, on the basis of which the limitation could have been extended. The argument is, however, not tenable. A perusal of the copy of the plaint in that suit would indicate that all the particulars of the original mortgage dated June 27, 1896 have been mentioned therein including the mortgage amount of Rs. 85/ - and the other terms and conditions of the mortgage. This is nothing else but an acknowledgment of the liability which would certainly provide a sufficient ground to the mortgagor for extension of the period of limitation prescribed for redemption of mortgages. Both the courts have come to a concurrent finding to this effect and this finding calls for no modification in second appeal
(3.) IT is, in fact, the second point which pertains to issue No, 6, which is more seriously agitated. It is pointed out that an application was filed by Banarsi Dass and Ram Sarup Respondents (mortgagors) before the Collector under the Act in which the order was passed by the Collector on May 26, 1960 (copy Exhibit D 4) to the effect that the application was barred by limitation and was thus rejected. The argument is that in view of the dismissal of this application, a civil suit was not competent on account of the bar envisaged in Section 12 of the Act In order to appreciate this argument, the relevant provisions of Punjab Act IV of 1938 may be recapitulated as follows: 2. Notwithstanding anything contained in any enactment for the time being in force, this Act shall apply to any subsisting mortgages of land, which were effected prior to 8th June, 1901. 3. * * * * 4. A mortgagor to whose land the provisions of this Act apply may at any time present a petition to the Collector praying for restitution of possession of the land mortgaged. The petition shall be duly verified in the manner prescribed for such petitions.;