J.V. Gupta, J. - (1.) THIS is Plaintiff's second appeal whose suit for possession by way of redemption has been dismissed by both the Courts below.
(2.) THE facts, in brief, are that a two roomed shop with a chaubara thereon in an area measuring 56 square yards, situated at Faridkot, was mortgaged with possession by the Plaintiff with the Defendant -Respondent for a sum of Rs. 15,000/ - vide registered mortgage deed dated February 27, 1962. This property already stood mortgaged for Rs. 9,000/ - with the Defendant's father since February 7, 1951. The terms and conditions of the instant mortgage dated February 27, 1962, were that (i) the mortgagor shall have no right to redeem the property for 59 years ; (ii) the mortgagee shall have a right to make any kind of construction on the property in accordance with his own wishes inclusive of making any repairs therein ; (iii) the expenses so incurred on fresh construction or repairs would be added to the mortgage amount and interest thereon shall be payable at the rate of one per cent per month ; and (iv) the entire amount so due shall be payable at the time of the redemption after 59 years of the mortgage. The present suit was filed in August, 1974, much before the expiry of the period of redemption of the mortgage on the ground that the terms and conditions of the mortgage were oppressive and onerous amounting to a clog on the equity of redemption inasmuch as the Plaintiff was much hard -pressed by his financial position as being under various debts etc. The suit was contested inter alia on the ground that it was premature as being not competent before the expiry of the stipulated period of redemption. It was however, denied that the Plaintiff was in difficult financial circumstances at the material time. It was averred that the Plaintiff had other considerable movable and immovable properties. According to the Defendant, a long period of mortgage was fixed in view of the excessive loan of Rs. 15,000/ -, the terms and conditions of the mortgage were voluntarily accepted by the Plaintiff who was a literate and a shrewd person, no construction whatsoever, nor any repairs were made to the mortgaged property and that he was prepared to waive all such terms and conditions except the redemption period of 59 years, which was clearly separable from the other terms and conditions of the mortgage, it was, thus, volunteered by him to redeem the suit property on payment of Rs. 15,000/ - only after the expiry of the said period of mortgage. According to him, the instant suit had been filed by the Plaintiff because of the rise in the value of immovable property in Faridkot. The trial Court found that all the terms and conditions of the mortgage except the long period of redemption of 59 years, were in the nature of clog on the equity of redemption, the Plaintiff was not in such a financial difficulty at the material time leading to some unfair advantage thereof being taken by the Defendant and that the suit was premature as it was filed before the expiry of the period of redemption, as stipulated. The mortgage loan was held to be Rs. 15,000/ - against the plea of the Plaintiff that it was Rs. 13,000/ -. Consequently, his suit was dismissed as premature. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and, thus, maintained the decree dismissing the Plaintiff's suit. After hearing the learned counsel for the parties, I find no merit in this appeal.
(3.) ON the appreciation of the entire evidence, it has been concurrently found that the long duration of 59 years' mortgage could not said to be a clog on the equity of redemption which is separable from the other terms of the mortgage. Moreover, it was a prudent act on the part of the Plaintiff to mortgage the property for a sum of Rs. 15,000/ - as it was not yielding any income to him. Thus, on the facts and circumstances of the case, do not find any illegality or infirmity in the concurrent findings of the Courts below as to be interfered with in second appeal. Consequently, this appeal fails and is dismissed with costs.;