Hardeo and another vs Ram Narain and another

Nigam, J.C.

Hardeo and another filed Civil Suit No. 660 of 1947 claiming pre-emption in respect of property purchased by defendant No. 1 through sale-deed dated 30-6-1947 on payment of Rs. 40/-, which was alleged to be the real consideration. The suit was decreed by the learned Additional Subordinate Judge who held that the plaintiffs were entitled to pre-emption on payment of Rs. 200/-. Against that judgment and decree, Ramnarain, defendant No. 1 appealed to the District Judge. The learned District Judge, by his judgment dated 3-7-1952, allowed the appeal and dismissed the plaintiffs'' suit with costs. Now the two plaintiffs have come up in second appeal to this Court. I have heard the learned counsel for the appellants and the learned counsel for respondent No. 1. The appeal has been heard ex parte against respondent No. 2.

The first question for my determination is whether the plaintiffs were owners of half share in the house and were entitled to pre-empt the sale-deed in question. The learned counsel for respondent No. 1 has urged that there is a finding of fact arrived at by the learned District Judge which is binding on this Court. The learned District Judge has held that by lapse of 60 years limitation, the plaintiffs'' rights in the property had become extinguished and they cannot claim a right of redemption. The learned counsel for the appellants has referred me to clause (2) of S. 20, Limitation Act, and urges that as the mortgagee has been in receipt of the rent, the mortgage subsists and subsisted on the date of the suit. I am unable to accept this contention. I do not think it was intended that the mortgage should be extended indefinitely by payments in the shape of the receipt of rents. The learned counsel is unable to refer to any ruling in support of his contention. The learned counsel for the opposite party has relied on - ''Kallu v. Halki 18 All 295 (A).

The next contention of the learned counsel for the appellants is that though the plaintiffs'' remedy to file a suit for redemption or possession of property may have become barred by lapse of the period of 60 years, their right in the property had not become extinguished and still subsists. What the plaintiffs claim is a right of pre-emption which is based on a right of ownership. The plaintiffs are clearly not entitled to assert their ownership or to file a suit for redemption or for possession. In these circumstances, I am unable to agree that they are entitled to file a suit for pre-emption.

The last contention of the learned counsel for the appellants is that by taking sale-deed Ex. 6, defendant No. 1 clearly acknowledged the subsistence of the mortgage inasmuch as he set off a sum of Rs. 60/- out of a consideration of Rs. 300/-. This was the money due to him on the previous mortgage of 1878. Even if this be taken as an acknowledgment, this was not made within a period of 60 years from 1878, the sale-deed having been executed in 1947. As such, there was no acknowledgment of the subsistence of a mortgage within 60 years of its execution.

No other point has been pressed before me.

I am, therefore, unable to see any force in this appeal. I dismiss it with costs.