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2006 DIGILAW 416 (PNJ)

Jaila Singh v. Avtar Singh

2006-02-10

KIRAN ANAND LALL

body2006
Judgment Kiran Anand Lall, J. 1. Avtar Singh and Balwant Singh plaintiffs filed a suit for possession of the land detailed in the heading of the plaint. According to them, Achhar Singh deceased, father of Gurbax Singh (defendant no.2), mortgaged the land detailed in para 1 of the plaint, with possession, in favour of their father Ranjit Singh for a sum of Rs.400/- on 29.9.1917. Mutation no.480 of Village Chak Jawahare Wala was sanctioned in this regard. After consolidation, the land detailed in the heading of the plaint, was allotted, in lieu of this land. On the death of Ranjit Singh (mortgagee), his estate was inherited by the plaintiffs and their brother Kartar singh but later on, in family partition, mortgagee rights of this land fell to the share of the plaintiffs. Likewise, on the death of mortgagor (Achhar Singh), its equity of redemption was inherited by his son Gurbax Singh, defendant no.2 who, later, sold the same to Jaila Singh, defendant no.1. In kharif 1966, Jaila Singh took forcible possession of this land. But, the mortgage was never redeemed. The claim of plaintiffs is that since after the expiry of limitation to redeem the mortgage, which was upto 31.12.1970, they had become its owners, they requested defendant no.1, several times, to deliver back its possession to them. He kept on putting them off, on one excuse or the other. But, ultimately, he refused to deliver its possession. Thereupon, they filed this suit. 2. Contest to the suit was given by Jaila Singh, defendants no.1, only. While admitting the factum of mortgage of suit land, in his written statement, he did not admit the date or nature of the mortgage. According to him, plaintiffs had never remained in its possession. He further pleaded that he had purchased it for valuable consideration and since he was in its possession as a purchaser, plaintiffs were not entitled to recover its possession from him. The other defendants did not contest the suit. Parties went to trial on the following issues:- 1. Whether the plaintiffs have become the owner of the suit land? O. P. P.2. Whether the plaintiff is entitled to the possession of the suit land? O. P. P.3. Relief. 3 The trial court dismissed the suit. The other defendants did not contest the suit. Parties went to trial on the following issues:- 1. Whether the plaintiffs have become the owner of the suit land? O. P. P.2. Whether the plaintiff is entitled to the possession of the suit land? O. P. P.3. Relief. 3 The trial court dismissed the suit. But, in appeal, the verdict of dismissal was set aside and the first appellate court passed a decree for possession of the suit land in favour of the plaintiffs (respondents herein ). This regular second appeal has been filed by defendant no.1. However, after having heard arguments from both sides and having carefully gone through the file, I do not find any merit in it. 4. Ex. P1 is the copy of mutation dated 29.9.1917, pertaining to the mortgage. The trial court non-suited the plaintiffs on the ground that identity of the land which was mortgaged (with possession) vide this mutation, had not been established as it was doubtful that the suit land had been allotted in lieu of the land under mortgage, during consolidation. This conclusion of the trial court, in my view, is patently wrong. The identity of the land under mortgage was, in fact, not disputed by the defendants, at any stage. In para no.1 of the plaint, the plea of plaintiffs was that Achhar Singh, father of defendant no.2, had mortgaged 37 kanals 9 marlas land comprised in khasra nos.251 (20-7), 252/1 (17-2), for rs.400/- on 29.9.1917 in favour of Ranjit Singh and mutation No.480 was sanctioned in this regard, and after consolidation, the suit land detailed in the heading of the plaint was allotted in lieu of the old khasra numbers of the mortgaged land, detailed in para 1 of the plaint. As stated above, defendant no.1, jaila Singh, is the only contesting defendant. In the written statement filed by him, he had not disputed the identity of the mortgaged land. He had, in fact, admitted the same in para no.1 of his written statement. Para no.1 of his written statement reads as under:- "1. Para No.1 of the plaint as stated is correct but the date of mortgage or the nature of the mortgage is not admitted, whether it was with possession or without possession. He had, in fact, admitted the same in para no.1 of his written statement. Para no.1 of his written statement reads as under:- "1. Para No.1 of the plaint as stated is correct but the date of mortgage or the nature of the mortgage is not admitted, whether it was with possession or without possession. " 5 If inspite of such categorical admission, there was still some doubt about the identity of the land under mortgage, the same became clear from the reply of defendant no.1 in para 4 of his written statement. In para no.4 of the plaint, it was pleaded that defendant no.2 had sold the suit land to defendant no.1 subject to mortgage i. e. he had sold his equity of redemption to defendant no.1 but the latter had taken its forcible possession, in kharif 1966. In the corresponding para of his written statement, viz. para 4, defendant no.1 admitted all these facts to be correct, by stating that, "para No.4 of the plaint is correct. " 6. In view of the above position, learned first appellate court had rightly concluded that there was no dispute between the parties that the suit land had been allotted in lieu of the land under mortgage detailed in para 1 of the plaint, and by admitting the contents of para no.4 of the plaint to be correct, in the corresponding para of this written statement, defendant no.1 had also admitted that he had purchased the suit land from Gurbax Singh, defendant no.2, subject to mortgage and later he had taken its forcible possession, in kharif 1966. Categorical admissions of these facts were not withdrawn by defendant no.1 at any stage. And, once that is so, he was bound by his admissions. Needless to say that there cannot be any better proof than admissions of a party against his own interest and that too in his pleadings. 7. Nothing wrong can, therefore, be found with the conclusion of the first appellate court that after purchase of equity of redemption Jaila Singh defendant had taken forcible possession of the suit land and since mortgage was not redeemed within time, the plaintiffs had become owners thereof and were entitled to take its possession from defendant no.1. Appeal shall, accordingly, stand dismissed, leaving parties to bear their own costs.