Partly allowed

Tirkha and Anr. v. Girraj and Ors.

Punjab & Haryana HC8 Jul 2009RSA/1795/2006

Case brief

AI extract

What is this about?

This judgment dismissed part of an appeal concerning redemption of mortgaged property. The Court allowed the appeal regarding the right to redeem, relying on a Full Bench decision, but clarified that dispossession must follow due legal process. It rejected the challenge to the factual finding on the mortgage's existence.

What did the court decide?

Appeal allowed regarding right of redemption; appellants restricted from dispossessing respondents until due course of law.

Tirkha and Anr. Vs Girraj and Ors. — Partition | Punjab & Haryana HC (2009)

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RSA No. 1795 of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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CM No. 4561-C of 2006 and RSA No. 1795 of 2006 (O&M)

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Date of Decision: July 08, 2009

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Tirkha and another

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...... Appellants

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Versus

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Girraj and others

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...... Respondents

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Coram: Hon'ble Mr. Justice Ajay Tewari

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Present: Mr. Raj Mohan Singh, Advocate for the appellants.

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Mr. Pankaj Jain, Advocate for respondents No. 1 to 6.

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Whether Reporters of local papers may be allowed to see the judgment?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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Ajay Tewari, J.

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CM No. 4561-C of 2006

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For the reasons recorded in the application, delay of 307

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days in filing the appeal stands condoned.

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CM stands disposed of.

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RSA No. 1795 of 2006

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Learned counsel for the appellants states that in fact respondent No.15 Smt.Kela had died at the time of filing of the suit and was represented through her legal representatives and the said legal representatives had chosen to remain ex parte before the trial Court. In the circumstances he states that at this stage it may not be necessary to move an

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RSA No. 1795 of 2006 2

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application for impleading her LRs again.

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The dispute in this case essentially relates to the right of mortgagor to redeem the property which is under usufructuary mortgage. Learned counsel for the respondents is not in a position to deny the proposition of law that a usufructuary mortgagor can redeem the mortgaged property at any time in view of the decision of the Full bench of this Court in Ram Kishan v. Sheo Ram reported as 2008 PLJ 1. Thus to this extent this appeal has to be allowed.

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Learned counsel for the respondents has, however, made one caveat. He states that even if this position obtains in law yet the appellant cannot dispossess the respondents except in due course of law. Learned counsel for the appellants is not in a position to deny this assertion.

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The second argument of learned counsel for the respondents is

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that the finding regarding the existence of mortgage is vitiated. In my opinion this question of existence of mortgage is a pure question of fact and learned counsel for the respondents has not been able to able to persuade me that the finding thereon is either based on no evidence or on such a misreading of the evidence that the said finding can be rendered to be perverse.

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In the circumstances as regards right of the appellants to redeem the property this appeal is allowed in terms of Ram Kishan's case (supra). It is, however, clarified that the appellants would not dispossess the respondents except in due course of law.

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(AJAY TEWARI) JUDGE

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July 08, 2009 sunita

Tirkha and Anr. v. Girraj and Ors.

Case brief

What is this about?

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Tirkha and Anr. v. Girraj and Ors.

Case brief

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