(O&M) Sabarjeet vs Ami Chand

-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA-668-1999
Reserved on : 02.07.2026
Pronounced on : 10.09.2026
SARABJEET (SINCE DECEASED) THROUGH LRS
...Appellant
Versus
AMI CHAND (SINCE DECEASED) THROUGH LRS
...Respondent
CORAM: HON'BLE MR. JUSTICE PARMOD GOYAL
Present: Mr. Ram Bilas Gupta, Advocate
for the appellant.
Mr. B.R. Rana, Advocate
for the respondent.
PARMOD GOYAL, J.
Present regular second appeal has been preferred by
unsuccessful appellant/defendant being aggrieved by judgment and decree
dated 03.05.1996, passed by learned Civil Judge (Junior Division), Palwal,
whereby suit for possession preferred by respondent/plaintiff was decreed as
well as by judgment and decree dated 09.12.1998, passed by learned
Additional District Judge, Faridabad, whereby first appeal preferred by
appellant/defendant was dismissed.
2. Respondent/plaintiff in his suit for possession by way of
redemption of mortgage had asserted that he is owner of suit property
detailed in para No.1 of the plaint. That earlier he had filed a suit for
possession on the basis of his title against the appellant/defendant in the
Court of the then learned Sub Judge, Palwal which was initially decreed by
CHIRANJEEV SINGH
2026.09.11 16:25
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RSA-668-1999 -2-
Court of learned Sub Judge (First Class), Palwal. However,
appellant/defendant had preferred an appeal against said decree in favour of
respondent/plaintiff wherein learned First Appellate Court concluded that
since appellant/defendant has been recorded as mortgagee in possession of
suit land in the relevant revenue record since the year 1976, therefore, appeal
was allowed with stipulation that possession of appellant/defendant over the
suit land was of a mortgagee and respondent/plaintiff could only take
possession after redemption of mortgage. In view of the findings of learned
First Appellate Court, respondent/plaintiff had preferred suit for possession
by way of redemption of mortgage.
3. The suit preferred by respondent/plaintiff was contested by
appellant/defendant by taking preliminary objections regarding
maintainability and suit being barred under Order II Rule 2 CPC along with
other preliminary objections. Appellant/defendant had also claimed
ownership by way of adverse possession and claimed that his possession had
been open, overt, asserted, hostile and continuous for more than last 12
years. Earlier litigation between the parties wherein learned First Appellate
Court had held appellant/defendant to be mortgagee was admitted, however,
it was asserted that the said findings are bar against present suit being res
judicata and accordingly, dismissal of suit with cost was prayed for.
4. From the pleadings of parties, following issues were framed :-
1. Whether the plaintiff is owner of the suit land as alleged? OPP
2. Whether the plaintiff has no locus standi to file the present suit?
OPD
3. Whether the suit is barred by the principles of res judicata?
CHIRANJEEV SINGH
2026.09.11 16:25
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RSA-668-1999 -3-
OPD
4. Whether the plaintiff is estopped from filing the present suit by
his own act and conduct? OPD
5. Whether the suit is bad for non-joinder and mis-joinder of
necessary parties? OPD
6. Whether the suit is barred by limitation? OPD
7. Whether the defendant has also become the owner of the suit
property by way of adverse possession? OPD
8. Whether the suit is not properly valued for the purposes of court
fees and jurisdiction? OPD
9. Whether the suit is barred under Order 2 Rule 2 CPC? OPD
10. Relief.
5. Both the Courts below by way of concurrent finding of fact on
appreciation of evidence had concluded that in previous litigation between
appellant/defendant and respondent/plaintiff, appellant/defendant was held
to be mortgagee over the suit property and, therefore, suit for possession by
way of redemption of mortgage preferred by respondent/plaintiff was held to
be permissible and redemption of mortgage and delivery of possession on
redemption was allowed.
6. As far as previous litigation is concerned, wherein
respondent/plaintiff had sought possession of suit property being owner of
suit land, same is not in dispute and same has been duly admitted by
appellant/defendant. Hence, it is also established by copy of judgment
passed by the then learned Additional District Judge, Faridabad (Ex.P1). In
previous suit, respondent/plaintiff had claimed himself to be owner of suit
CHIRANJEEV SINGH
2026.09.11 16:25
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RSA-668-1999 -4-
property and had claimed that appellant/defendant was a trespasser,
however, learned First Appellate Court vide Ex.P1 had specifically found
that since appellant/defendant had been recorded as mortgagee since 1976,
therefore, the status of appellant/defendant was held to be that of mortgagee
and possession could only be taken upon redemption of mortgage.
7. As per revenue records also, as noticed by learned Courts
below, the possession of appellant/defendant over the suit property for the
first time was recorded vide rapat rojnamcha (Ex.P5) in the year 1972. The
change of possession was duly incorporated in favour of appellant/defendant
in jamabandi for the year 1976-77 (Ex.P9) wherein appellant/defendant had
been shown as mortgagee in possession of suit land. These facts have not
been rebutted by appellant/defendant.
8. Admittedly, on the basis of Ex.P5 and Ex.P9 learned First
Appellate Court in previous suit vide Ex.P1 had declared
appellant/defendant to be mortgagee in possession. The finding given by
learned First Appellate in previous suit had attained finality between the
parties, therefore, the status of appellant/defendant with effect from 1972
onwards was that of mortgagee in possession.
9. The present suit was filed on 20.08.1991. The general period of
limitation to seek redemption is 30 years and in case of equitable mortgage,
no limitation is prescribed, therefore, even from 1972, if limitation period of
30 years is applied, the suit for redemption was within limitation and the
claim of appellant/defendant that he had become owner by way of adverse
possession is not established as he had never given up his right as mortgagee
and continued to be mortgagee under respondent/plaintiff. The appellant/
CHIRANJEEV SINGH
2026.09.11 16:25
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RSA-668-1999 -5-
defendant cannot blow hot and cold at the same time. In previous suit for
possession, he claimed himself to be mortgagee and succeeded. In
subsequent suit for possession by way of redemption, he cannot deny
mortgage and seek ownership on the basis of adverse possession unless he
shows that he had forgone his claim of being the mortgagee after passing of
judgment (Ex.P1). No such evidence was led by appellant/defendant,
therefore, his claim of ownership on the basis of adverse possession was
rightly rejected being not tenable. Learned Courts below have also rightly
rejected the claim of appellant/defendant that since in previous suit that
respondent/plaintiff could get possession, therefore, finding of previous suit
is res judicata .
10. In the previous suit decided vide Ex.P1, learned First Appellate
Court had found respondent/plaintiff entitled to decree of possession by way
of redemption. The status of respondent/plaintiff and appellant/defendant
being mortgager and mortgagee respectively, was only acknowledged by
way of judgment (Ex.P1). Once status of respondent/plaintiff and
appellant/defendant was determined vide judgment and decree passed by
Court (Ex.P1) then subsequent suit for redemption of mortgage preferred by
respondent/plaintiff cannot be held to be res judicata , as right to seek
redemption would accrue only by proof of existence of mortgage between
the parties which for the first time was recognized by Ex.P1.
11. Learned counsel for appellant/defendant has argued that suit for
redemption is not maintainable as respondent/plaintiff has not complied with
requirement of Form 46 of CPC as respondent/plaintiff has not disclosed
date of mortgage and amount of mortgage to seek redemption. Reference has
CHIRANJEEV SINGH
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been made to testimony of respondent/plaintiff who appeared as PW1
wherein he had admitted in cross-examination that neither he had received
any amount of mortgage nor was he aware about the amount of mortgage or
date of mortgage.
12. In the present case, learned First Appellate Court in previous
litigation vide Ex.P1 had found appellant/defendant to be a motgagee on the
basis of entries in jamabandi for the year 1976-77 (Ex.P9) wherein factum of
mortgage in favour of appellant/defendant was recorded. Rapat rojnamcha
Ex.P5 for the first time showed that appellant/defendant had come in
possession of suit land as mortgagee. In fact, jamabandi for the year 1971-72
(Ex.P8) goes to show that appellant/defendant was not in possession of suit
land, he came to be in possession only by virtue of rapat rojnamcha Ex.P5
recorded in 1972-73 wherein possession was changed in favour of
appellant/defendant being mortgagee.
13. From the evidence placed on record, it is, therefore, clearly
made out that appellant/defendant had become mortgagee in the year 1972
when he had entered in possession of suit land being a mortgagee. Learned
Courts below have duly taken into consideration statement of
appellant/defendant Sarabjeet (Ex.P7), who had appeared as DW1 in
previous suit wherein he himself claimed to be mortgagee for amount of
Rs.2,500/-. The learned Courts below have rightly taken this admission on
the part of appellant/defendant who appeared as DW1 and on the basis of
said admission having secured judgment (Ex.P1) in his favour, it was held
that appellant/defendant is estopped from withdrawing the said admission.
Therefore, in the present case, commencement year in which mortgage had
CHIRANJEEV SINGH
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RSA-668-1999 -7-
commenced and mortgage amount, stand established by way of evidence of
parties, therefore, argument raised on behalf of learned counsel for
appellant/defendant that suit for redemption is not maintainable is without
any merit and had rightly been rejected by both the Courts below.
14. The finding of facts recorded by learned Courts below is based
upon correct appreciation of evidence and, therefore, no interference is
warranted. No question of law arises in the present appeal.
15. Appeal preferred by appellant/defendant is without any merit,
hence is dismissed.
16. Pending application(s), if any, is/are disposed of accordingly.
(PARMOD GOYAL)
10.09.2026 JUDGE
chiranjeev
Whether Speaking/Reasoned : Yes
Whether Reportable : Yes
CHIRANJEEV SINGH
2026.09.11 16:25
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integrity of this document