Lachhman Singh (Deceased) through Legal Representatives & Ors Vs. Hazara Singh
(Deceased) Through Legal Representatives & Or  INSC 815 (6 May 2008)
S.B. Sinha & Lokeshwar Singh Panta
REPORTABLE CIVIL APPEAL NO. 3322 OF 2008 (Arising out of SLP (C) No.1395 of
2007) S.B. Sinha, J.
1. Leave granted.
2. What would be the period of limitation in a suit for redemption of
mortgage in the factual matrix involved in the present case is the question in
this appeal which arises out of a judgment and order dated 19.7.2006 passed by
the High Court of Punjab and Haryana in RSA No.1340 of 1980.
3. A transaction of mortgage in respect of the suit property admeasuring 58
kanals 11 marlas was entered into by and between the predecessors in the
interest of the parties herein. The actual date of execution of the deed of
mortgage was not known to the plaintiffs-respondents. However, the said
mortgaged properties were mutated in the name of the mortgagees on or about
4. A suit for redemption of the said mortgage was filed by the respondents
on or about 30.12.1970. The learned trial court, as also the First Appellate
Court, dismissed the said suit as being barred by limitation opining that the
actual date of mortgage being not known, a decree for redemption of mortgage
could not be passed.
5. The High Court, however, in the second appeal preferred thereagainst by
the respondent herein, formulated the following substantial questions of law :
"1. Whether the finding recorded by the learned first Appellate Court regarding
relationship is sustainable?
2. Whether the suit for possession by way of redemption is within the period
6. It was held that in view of the fact that the relationship between the
parties as mortgagor and mortgagee was proved, the onus to prove that suit was
barred by limitation was on the defendants.
The said Second Appeal on the said finding was allowed.
7. Mr. Shambhu Prasad Singh, learned counsel appearing on behalf of the
appellant, would submit that the question of limitation being one of
jurisdiction, the High Court committed a serious error in allowing the said
second appeal. It was submitted that as the date of mutation was not the date
of mortgage, the suit should have been held to be barred by limitation.
8. Mr. Manoj Swarup, learned counsel appearing on behalf of the respondents,
on the other hand, has drawn our attention to an application filed by the
respondent for adduction of additional evidence, as envisaged under Order 41
Rule 27 of the Code of Civil Procedure and submitted that the deed of mortgage
which was registered in Village Pangota, Tehsil Taran Taran in the District of
Amritsar, now in Pakistan, could be procured by the respondents which, if taken
into consideration, would clearly establish that the suit was within the
prescribed period of limitation having been executed on 20.2.1913.
The relationship between the parties is not in dispute. Respondents filed
the aforementioned suit for a decree for redemption of mortgage on payment of a
sum as may be found due to the appellants herein. The details of the mortgage
were furnished but the actual date of mortgage being not known could not be
Sohan Singh and Bahadur Singh were the original mortgagors. Sohan Singh is
said to have been not seen 10 years prior to the institution of the suit and,
thus, presumed to be dead. Respondents are said to have inherited the
properties of the said mortgagors and, thus, stepped into their shoes. In the
written statement, the respondent denied and disputed the relationship between
the parties, stating :
"1. Para No.1 of the plaint is wrong and incorrect. The suit land is
not of the plaintiffs.
Rather the total land is under the permanent continuing possession of
defendant No.1. The land in dispute as mentioned in para No.1 of the plaint
filed by the plaintiffs never mortgaged with the defendants and the facts
mentioned in para No.1 of the plaint regarding the alleged mortgaged are forged
and fictitious one and the plaint is not with me."
9. The defendant claimed the ownership as also possession of the suit land
in himself. The courts below, as noticed hereinbefore, found that there existed
a relationship of mortgagor and mortgagee between the parties to the lis. The
suit was dismissed only on the ground of being barred by limitation.
The High Court was, in our opinion, entirely wrong in holding that the onus
to prove that the suit was beyond the period of limitation was on the
defendants. Limitation is a question of jurisdiction. Section 3 of the
Limitation Act puts an embargo on the court to entertain a suit if it is found
to be barred by limitation.
10. It appears that before the High Court also, an application for adduction
of additional evidence was filed. No order thereupon was passed.
Respondents, in our opinion, have made out a case for adduction of
It was stated that the mortgage deed was registered in the year 1913 in the
District of Lahore. As it is a registered document, this Court in a situation
of this nature, keeping in view the findings of the courts below, should allow
the said application.
11. There cannot be any doubt whatsoever that the court should be loathed to
entertain such an application but the respondents have herein made out adequate
The jurisdiction of the Appellate Court is to be exercised not only when
clause (a) or clause (aa) of sub-rule (1) of Rule 27 of Order 41 of the Code is
attracted but also when such a document is required by the appellate Court
itself to pronounce judgment or for any other substantial cause. If what the
respondents contended is correct, namely, the mortgage was executed in 1913,
the period of limitation having been prescribed under the old Limitation Act,
namely, 60 years being the period of limitation having regard to the provisions
of the new Limitation Act, the suit could be filed within a period of seven
years from 1.1.1964, i.e. upto 1.1.1971. As the suit was filed on 30.12.1970,
it may be held to be within the prescribed period of limitation.
12. We are of the opinion that keeping in view the peculiar facts and
circumstances of this case, the respondents should be permitted to adduce
evidence. We, therefore, set aside the impugned judgment and remit the matter
back to the High Court directing it to take the additional evidence on record
either allowing the parties to adduce evidence before it or to prove the said
documents by the trial judge in terms of Order 41 Rule 28 of the Code.
Appeal is allowed to the above extent. No costs.