( 2025:HHC:21403 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Regular Second Appeal No.86 of 2019 Reserved on: 30th June, 2025. Date of decision: 7th July, 2025 Chain Singh …Appellant Versus Rameshwar Dutt …Respondent Coram The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting? Yes For the Appellant: Mr. Ashok Sood, Sr. Advocate with Mr.Rajat, Advocate vice Mr. Abhishek Banta, Advocate. For the Respondent: Mr. Suneet Goel, Sr. Advocate with Mr.Vivek Negi, Advocate. Vivek Singh Thakur, Judge This appeal under Section 100 of Code of Civil Procedure has been preferred by the appellant/defendant against judgment and decree dated 26.9.2018 passed by the District Judge, Solan in Civil Appeal No. 15-S/13 of 2015, titled Chain Singh vs. Rameshwar Dutt, whereby judgment and decree dated 28.2.2015 passed by the Civil Judge (Junior Division), Kandaghat, District Solan in Civil Suit No. 9-K/1 of 2013 titled Rameshwar Dutt vs. Chain Singh, has been affirmed. 2 For convenience, parties herein-after shall be referred as per their status in the suit i.e. plaintiff and defendant. 2 ( 2025:HHC:21403 ) 3 Plaintiff filed a suit under Section 60 of the Transfer of Property Act and alternatively, under Sections 4, 5 and 6 of the H.P. Debt Reduction Act, 1976 for restoration of possession of mortgaged land comprised in Khata/Khatauni No. 32 min/54 bearing Khasra No. 302/113 min measuring 11 bighas situated in village Sainj, Pargana Bagri Kalan, Tehsil Kandaghat, District Solan HP vide jamabandi for the year 2007-08. The suit was decreed. 4 Being aggrieved by the judgment and decree passed by the Trial Court, defendant had preferred an appeal in the Court of District Judge, detailed supra, which was also dismissed and thereafter, present appeal has been preferred, which was admitted on 13th March, 2019 on the following substantial questions of law:- 1. Whether in a suit for redemption and possession in respect of usufructuary mortgage limitation of filing suit shall start from date of mortgage or from the discharge and satisfaction of loan amount from the income of mortgaged property when no specific time for repayment of loan is fixed under Mortgage Deed? 2. Whether both the learned Courts below failed to appreciate terms and condition of mortgage deed Ext.PW1/C in its right perspective and has misread, misconstrued and misapplied for determining the issue of limitation which has resulted in passing erroneous impugned judgments and decree? 3 ( 2025:HHC:21403 ) 3. Whether the learned first Appellate Court below gravely erred in holding that the defendant has not led evidence on satisfaction and discharge of mortgage loan from the income of mortgaged property by not taking into consideration the admissions having been made by plaintiff in plaint as well as in his statement in Court with regard to satisfaction of loan amount long back more than 30 years ago from the income of mortgage property? 5 Ram Saran son of Luru was original owner of suit land in the year 1943. He mortgaged the suit land by executing mortgage deed dated 3rd September, 1943 (28.5.2000 Samvat Vikrami) Ext.PW1/C whereby he mortgaged the suit land to Krishnia Ram son of Hari Ram against debt of Rs.200/- received by him with a condition that till payment of mortgage money, Krishnia shall enjoy the benefit from the mortgaged land and on payment of mortgage money Rs.200/-, mortgagor shall be entitled for redemption to recover the possession. 6 Later on, Ram Saran was in need of further money and he received the additional amount of Rs.150/- from Krishnia Ram without any written agreement, however its entry was recorded in revenue record and mutation No. 232 was attested in this regard and as such, mortgage amount became Rs.350/-. 7 Ram Saran vide sale deed dated 5.7.1960, for consideration of Rs.500/-, sold the land to Sehaj Ram. Plaintiff Rameshwar Dutt is son of Sehaj Ram. After death of Sehaj Ram, plaintiff Rameshwar inherited 4 ( 2025:HHC:21403 ) his share including the suit land. Therefore, Rameshwar Dutt entered into the shoes of mortgagor and became mortgagor. 8 Estate and property of Krishnia Ram including the possession of mortgaged land was inherited by his grandson Chain Singh, who was not his real grandson, but by way of Will. 9 In furtherance to aforesaid sale by Ram Saran to Sehaj Ram, mutation No. 304 Ext.PW1/D-A was attested on 22.8.1960 whereby ownership of suit land was transferred from Ram Saran to Sehaj Ram. In this mutation, Krishnia Ram son of Hari Ram was shown as mortgagee. Vide mutation No.177 Ext.PW1/G attested on 31.12.1990 mortgagee Krishnia Ram son of Hari Ram was substituted by Chain Singh (defendant) son of Anokhi Ram. 10 In aforesaid facts and circumstances, suit for redemption was instituted by plaintiff Rameshwar Dutt on 26.2.2013 on the ground that defendant might have realized the profit of the value more than the amount borrowed by predecessor-in-interest of plaintiff from predecessor- in-interest of defendant and defendant was not entitled for any amount but if the Court opined that defendant was entitled to any amount, the plaintiff was ready to pay Rs.350/- being mortgage amount or any other amount as may be determined by Court. 11 Suit was contested by defendant on the ground that right of plaintiff to redeem the land had come to end and therefore, defendant had become owner in possession of suit land because right of 5 ( 2025:HHC:21403 ) redemption had come to an end on completion of 30 years of the mortgage whereafter, defendant had spent very huge amount on improvement and development of the suit land treating the same to be land owned and possessed by defendant and thus, plaintiff had no right to file the suit for redemption. Further that plaintiff had knowledge that he was legally bound to get the land redeemed within a period of 30 years from the mortgage and he or his predecessor-in-interest, did not make any effort within 30 years of mortgage, therefore, right to redeem the land had come to an end and false story with respect to realization of profit from the agricultural land had been concocted by plaintiff. 12 Plaintiff has examined himself as PW1 and has placed reliance on documents Ext.PW1/A examination-in-chief of plaintiff on affidavit, copy of jamabandi Ext.PW1/B, copy of mortgage deed Ext.PW1/C, copy of Padat Patwar Ext.PW1/D, copy of translation of Padat Patwar Ext.PW1/D-A, copies of mutation Ext.PW1/E to Ext.PW1/G. 13 Defendant had examined himself as DW1 and had placed reliance on his examination-in-chief on affidavit Ext.DW1/A. 14 No other evidence was led by either party. 15 Plaintiff in his examination-in-chief Ext.PW1/A had reiterated the aforesaid facts with submission that defendant was not entitled for any amount and in any case, plaintiff was ready to pay Rs.350/- or more than that as determined by Court. He also stated that at the time of mortgage, no time was fixed for redemption of mortgage. Further that 6 ( 2025:HHC:21403 ) defendant was asked on 6.6.2012 for redemption of land but defendant had not acceded to request of plaintiff and therefore, suit was filed. In cross examination, he has denied that he never offered mortgage money to defendant but reiterated that in June, 2012 he had offered the payment of mortgage money to defendant, but defendant did not agree to receive the amount and to redeem the mortgaged land. The tone and tenor of other suggestions to plaintiff on behalf of defendant, though denied, was that defendant has not earned more than the mortgage money from benefits of mortgaged land. 16 In his examination-in-chief, defendant has categorically stated that mortgaged land was to be redeemed on or before 3.9.1973 i.e. within 30 years from execution of mortgage deed dated 3.9.1943 and there was no condition in mortgage deed that profit received from mortgaged land was to be adjusted against the mortgage money. Further that at the time of purchase of land, Sehaj Ram (father of plaintiff) in the year 1960 was having knowledge about the mortgage created in the year 1943 and if he would have intended to have possession of the same, he was required to get the same redeemed within limitation period of 30 years from mortgage deed because the nature of mortgage was not of such nature that it could be redeemed even after expiry of 30 years from the date of mortgage. But plaintiff or Sehaj Ram had not paid mortgage amount within 30 years after the creation of mortgage and therefore, their 7 ( 2025:HHC:21403 ) right of redemption had come to an end and thus, suit is liable to dismissed. 17 Learned counsel for defendant referring Section 62 of Transfer of Property Act and Article 61 of Schedule of Limitation Act, 1963 prescribing period of limitation as well as judgment passed by the Supreme Court in Singh Ram (deceased) through LRs. vs. Sheo Ram and others reported in (2014)9 SCC 185, has contended that as claimed by plaintiff, the mortgage money had been recovered much prior to period of 30 years from the date of filing of suit and, therefore, for recovery of mortgage money prior to more than 30 years prior to filing of suit, limitation period for filing the present suit had expired and thus, suit is not within limitation and further in view of nature of mortgage i.e. usufructuary mortgage as evident from Ext.PW1/C, the mortgage money was to be recovered from benefit of land and thus, mortgage money stood recovered more than 30 years before filing of suit and in terms of mortgage, the suit of the plaintiff is liable to be dismissed and therefore, Courts below have committed mistake by passing the decree in favour of plaintiff. 18 Learned counsel for plaintiff, referring the same provisions of law as well as the same judgment passed by the Supreme Court has submitted that in terms of mortgage deed Ext.PW1/C right of redemption was given to mortgagor on payment of mortgage money and therefore, submission, that mortgage money had been recovered from benefits of 8 ( 2025:HHC:21403 ) mortgaged land much earlier even prior to 30 years from filing of suit, is not tenable and therefore, Courts below have rightly accepted and adjudicated the right of plaintiff to have possession on account of redemption. 19 Section 62 of Transfer of Property Act reads as under:- “62. Right of usufructuary mortgagor to recover possession.—In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee,— (a) where the mortgagee is authorized to pay himself the mortgage -money from the rents and profits of the property. —when such money is paid: (b) where the mortgagee is authorized to pay himself from such rents and profits or any part thereof a part only of the mortgage -money,—when the term (if any), prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage- money or the balance thereof or deposits it in Court as hereinafter provided.” 20 Relevant provisions of Article 61(a) of Limitation Act reads as under:- “61. By a mortgagor (a) to redeem or recover possession of Thirty years When the right to redeem or to recover possession accrues. 9 ( 2025:HHC:21403 ) immovable property mortgaged.” 21 Ratio of judgment of the Supreme Court in Singh Ram’s case supra has been stated as under:- “21. 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 mortgagor’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. 22. We, thus, hold that 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.” 22 As held by the Supreme Court, limitation period for filing the suit for redemption, to recover the possession commences from the date when mortgage money is paid and mortgagee does not become owner 10 ( 2025:HHC:21403 ) merely on expiry of 30 years from the date of mortgage. In present case, nature of mortgage deed is that land was handed over to predecessor-in- interest of defendant with condition that till payment of mortgage money, mortgagee shall be entitled to enjoy the benefits/fruits from the suit land and mortgagor shall have right to redeem the same on payment of mortgage money. Therefore, claim of defendant, that mortgage money had not been recovered from benefits of land, is not only contrary to pleadings and evidence led by defendant but is also not in consonance with terms and conditions of mortgage deed. Stand of defendant is also contrary to provision of Section 62 of Transfer of Property Act as well as ratio of law laid down by the Supreme Court in its judgment, referred supra. 23 Mortgage money was due on the date of filing of suit. According to plaintiff, he had offered the mortgage money in June, 2012. Therefore, limitation period to file the suit for redemption shall commence from June 2012 and thus suit filed by plaintiff, was within limitation. The understanding and claim of plaintiff contrary to terms and conditions of mortgage deed Ext.PW1/C that defendant was not entitled for any amount for having enjoyed the benefits of mortgaged land for a considerable long time, has no impact on right of plaintiff available with him under law to file a suit for redemption within 30 years from the date of offer of payment of mortgage money particularly when there is alternative stand of plaintiff as well as in his deposition in Court that he is ready and 11 ( 2025:HHC:21403 ) willing to pay mortgage money to defendant or any other amount as determined by Court. 24 Plea of defendant in appeal is entirely in conflict with stand taken by him in written statement as well as in his deposition in Court. Therefore, there is no merit in plea raised by defendant in this appeal. 25 The Courts below have appreciated the evidence on record including Ext.PW1/C as well as provision of law in right perspective and there is no misreading, misconstruction or mis-interpretation of evidence and/or law relevant in present matter. 26 The substantial questions of law are answered in aforesaid terms. 27 In view of above, there is no merit in appeal and therefore, impugned judgment and decree passed by the Trial Court, affirmed by the District Judge, is upheld. Accordingly, the appeal is dismissed. No order as to costs. (Vivek Singh Thakur), Judge. 7th July, 2025(MS)