- (1.) This Regular Second Appeal arises out of the judgment dated 29-3-2007 passed by the Additional District Judge, Karnal in Civil Appeal No. 64 of 2005. Briefly stated the facts as emerged from pleadings of the parties are that the appellant herein is son of one Tek Chand whereas respondents Nos. 1 to 4 are the legal representatives of Hukam Chand. Respondent No.5 is also widow of Teck Chand and is the mother of the appellant. It is admitted case of the parties that Hukum Chand and Tek Chand were real brothers being sons of one Ram Parshad. Suit property i.e. House No. 8/ 1018 situated in Sadar Bazaar, Ambedkar Nagar, Karnal was mortgaged by Ram Parshad to one Nathu Ram son of Kalu Ram for an amount of Rs. 1500/- which was further mortgaged on 1-5-1964 with one Kishori Lal son of Nathu Ram for Rs. 800/-. Though the property was mortgaged, the possession remained with Ram Parshad as a tenant thereof. The case of the appellant is that he redeemed the suit property by paying the mortgage money to the mortgagees and has thus acquired absolute title over the property. Respondents Nos. 1 to 4 filed a suit for partition before the trial Court claiming themselves to be the co-owners of the property. The suit was resisted by the appellant merely on the ground that property was redeemed by him without any contribution from Hukum Chand and his legal representatives. The Trial Court framed as many as six issues. However the relevant issue is issue No. 1 which reads as under :- "1]. Whether the plaintiffs are entitled to a preliminary decree for possession by way of partition of the house in dispute, if yes to what effect? OPP."
(2.) After the trial, the suit of the respondents was decreed and a preliminary decree for possession by way of partition by metes and bounds has been passed for 1/2 share in the suit property. The trial Court returned a finding that Hukum Chand and Tek Chand were joint owners and the mortgage money was paid by both of them at the time of redemption of the property. Aggrieved of the judgment and decree of the trial Court, the appellant herein preferred appeal being Civil Appeal No. 64 of 2005 before the Additional District Judge, Karnal. The Appellate Court, while concurring with the judgment and the conclusion of the trial Court in passing the preliminary decree for possession by way of partition only modified the findings of the trial Court to the extent that the mortgage money was exclusively paid by Tek Chand at the time of the redemption of the property. On the basis of these findings judgments and decrees of the Courts below have been assailed in this appeal.
(3.) It is contended on behalf of the appellant that the suit filed by the respondents was barred by time. According to the learned counsel, the limitation for filing such a suit is three years under Article 113 of the Limitation Act, 1963. According to the learned counsel, Tek Chand had become mortgagee in possession after the redemption of the property on payment of the mortgage money, and therefore, the legal representatives of Hukum Chand could only seek redemption of the property and not the partition.;