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2016 DIGILAW 1930 (HP)

Sardar Singh v. Puran Chand

2016-09-08

RAJIV SHARMA

body2016
JUDGMENT : Rajiv Sharma, J. 1. This Regular Second Appeal has been instituted against judgment and decree dated 21.2.2015 rendered by learned Additional District Judge-1, Shimla, camp at Rohru in Civil Appeal No. 10-R/13 of 2008. 2. "Key facts" necessary for the adjudication of the present appeal are that respondents-plaintiffs (hereinafter referred to as 'plaintiffs' for convenience sake) have filed a suit for declaration, possession and for permanent prohibitory injunction against the appellants-defendants and proforma defendants (hereinafter referred to as 'defendants' and ‘proforma defendants’ for convenience sake). According to the averments made in the plaint, Girja Nand who was father of plaintiff No. 1 and proforma defendants and one Shiv Saran, were brothers. Similarly, Banasi Devi who was original plaintiff No. 2 was sister of Girja Nand. Girja Nand, Shiv Saran and Banasi were owners-in-possession of land comprising of Khasra No. 276 measuring 6 Bigha 16 Biswas bearing Khewat No. 52/Khatauni No. 75, as per Jamabandi for the year 1978-79 (Ext. PW-1/F). Both, Girja Nand and Shiv Saran were owners to the extent of 7/18th share each, whereas Banasi was owner to the extent of 4/18th share. During the course of settlement, land comprising Khasra No. 276 was bifurcated into three Khasra Nos. 387, 387/1 and 390 as recorded in Misal Hakiat Bandobast for the year 1996 (Ext. PW-1/C). In the meanwhile, Girja Nand mortgaged his share in the suit land to one Gulab Singh, who was predecessor-in-interest of defendants No. 1 to 4, for a consideration of Rs. 1200/- and mutation No. 1663 was attested in this behalf. Shiv Saran, who was owner of 7/18th share of suit land, wrongly and illegally transferred in favour of defendants No. 1 to 3, 3 Bigha 9 Biswa of land i.e. 1 Bigha more than his share. In July, 1994, when plaintiff No. 1 came to know about the mortgage of suit land in favour of Gulab Singh, who was predecessor-in-interest of defendants No. 1 to 4, he requested Gulab Singh to take the mortgage money and hand over the possession of the suit land to the extent of share of Girja Nand but to no avail. In July, 1994, when plaintiff No. 1 came to know about the mortgage of suit land in favour of Gulab Singh, who was predecessor-in-interest of defendants No. 1 to 4, he requested Gulab Singh to take the mortgage money and hand over the possession of the suit land to the extent of share of Girja Nand but to no avail. A revenue petition was filed before the Revenue Collector Rohru on 13.7.1994 for redemption of the land but during the pendency of the petition, Gulab Singh passed away and petition was dismissed because plaintiff could not ascertain the names of the legal representatives of Gulab Singh. Plaintiff No. 2 was married and resided at Village Tikkari for more than 40 years and came to know about the factum of mortgage and possession of defendants No. 1 to 3 as well as late Gulab Singh over the suit land only on 20.2.2004, when plaintiff No. 1 informed her. Plaintiffs offered mortgage money to the defendants. It is also averred in the plaint that since Banasi Devi who was predecessor-in-interest of plaintiffs No. 2 and 3, had never sold her share to the defendants No. 1 to 3 or their predecessor-in-interest, hence she was entitled to take back the possession of the land from defendants No. 1 to 4. It is in these circumstances that the suit was filed by the plaintiffs. 3. Suit was contested by the defendants. Relationship of plaintiffs and proforma defendants has not been disputed. Shiv Saran is stated to have sold land comprising Khasra No. 276/1 out of land comprising old Khasra No. 276 to the father of the replying defendants on 24.6.1983. During the settlement, this Khasra number was converted into new Khasra No. 387/1 and 390. According to them, previously the suit land was mortgaged to them by Girja Nand and mutation to this effect was attested on 18.2.1974. 4. Plaintiffs filed replication. Learned Civil Judge (Junior Division) framed issues on 2.11.2006. He partly allowed the suit. Plaintiffs were held to be entitled to redeem the share of suit land of Plaintiff No. 1 and proforma defendants from the defendants No. 1 to 4 on making payment of Rs. 1200/- in favour of the defendants. Plaintiffs were directed to deposit the mortgage amount of Rs. He partly allowed the suit. Plaintiffs were held to be entitled to redeem the share of suit land of Plaintiff No. 1 and proforma defendants from the defendants No. 1 to 4 on making payment of Rs. 1200/- in favour of the defendants. Plaintiffs were directed to deposit the mortgage amount of Rs. 1200/- before the Court within a period of two months from the date of passing of judgment and decree dated 25.2.2008. Defendants namely Sardar Singh and Ishwari Nand filed an appeal against judgment and decree dated 25.2.2008 before the Additional District Judge. He dismissed the appeal on 21.2.2015. Hence, this Regular Second Appeal. 5. The Regular Second Appeal was admitted on 20.6.2015, on the following substantial questions of law: “1. Whether the suit filed by the Plaintiffs for redemption of the suit land was not maintainable because as per their owner claim, their Petition for redemption of the suit land was dismissed by the Ld. Collector, Rohru for want of impleading legal representatives of late Sh. Gulab Singh on 13.7.1994. 2. Whether on the Principle of Resjudicata since proceeding for redemption was earlier dismissed by Collector Rohru, therefore, present suit was not maintainable. 3. Whether there are material admission on the part of the Respondents about the claim of Appellants, therefore, suit was required to be dismissed. 4. Whether the suit for redemption was barred by limitation because of transaction of mortgage has taken place between the mortgagor and mortgagee in the year 1967, and similarly since Sh. Shiv Saran has executed a sale Deed of his share out of the suit land, through a registered sale deed No. 146/83 on 24.6.1984, therefore, the present suit having been filed on 2.3.2004 was hopelessly barred by limitation. 5. Whether the suit as filed is not maintainable as the same being bad for mis-joinder and non-joinder of different causes of action and joinder and non joinder of necessary parties and the validity of sale deed dated 24.6.1984 and the claim of redemption could not be clubbed together. 6. Whether the findings are vitiated on account of misreading and mis-appreciation of the pleadings of the parties as well as oral and documentary evidence on record.” 6. Mr. D.S. Nainta, Advocate, on the basis of substantial questions of law framed, has vehemently argued that the suit filed for redemption of suit land was not maintainable. 6. Whether the findings are vitiated on account of misreading and mis-appreciation of the pleadings of the parties as well as oral and documentary evidence on record.” 6. Mr. D.S. Nainta, Advocate, on the basis of substantial questions of law framed, has vehemently argued that the suit filed for redemption of suit land was not maintainable. He also contended that the suit was not filed within limitation. Suit was bad for mis-joinder and non-joinder. Suit was barred by the principle of res-judicata since the Collector Rohru had also decided similar petition. 7. Mr. B.C. Verma, Advocate, appearing for respondents No. 1 to 3 and 6 to 8, has supported the judgments and decrees passed by the learned Courts below. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. Since all the substantial questions of law are interconnected and interlinked, the same are taken together for determination to avoid repetition of discussion of evidence. 10. According to Rojnamcha Vakyati, Ext. PW-3/A, which was duly proved by PW-3 Shri Surat Ram, mortgage was made on 12.3.1974. Factum of mortgage of share of land by Girja Nand in favour of Gulab Singh on 12.3.1974 is proved on record. Mutation No. 1667 Ext. PW-1/D was attested on 16.3.1974. It is also evident from the copy of Misal Hakiyat for the year 1996, Ext. PW-1/C, copy of Jamabandi for the year 1997-98 Ext. PW-1/A that only the share of Girja Nand was mortgaged with Gulab Singh. According to the revenue record, possession of the share of land was also delivered to the predecessor-in-interest of the defendants namely Gulab Singh. Defendants have failed to prove their adverse possession over the suit land. It was necessary for them to prove the ingredients of adverse possession. Defendants have examined DW-2 Amar Sain, DW-3 Nirkhu Ram and DW-4 Dhanvir. However, these witnesses could not state Khasra numbers as well as Khata Khatauni numbers of the land in possession of the defendants. Witnesses have also failed to point out the exact date of commencement of possession of the defendants or their predecessor-in-interest Gulab Singh. Defendants have miserably failed to prove that land was mortgaged in the year 1967. It is reiterated that the plaintiffs have proved that the suit land was mortgaged on 12.3.1974. Instant suit was filed on 2.3.2004, i.e. within a period of thirty years. Defendants have miserably failed to prove that land was mortgaged in the year 1967. It is reiterated that the plaintiffs have proved that the suit land was mortgaged on 12.3.1974. Instant suit was filed on 2.3.2004, i.e. within a period of thirty years. Plaintiffs have earlier filed a petition before Collector Rohru under HP Redemption of Mortgage Act. Learned trial Court has rightly observed that proceedings before the Collector were summary in nature thus the present suit for redemption of mortgage was maintainable. Defendants, moreover, have not objected in the written statement that the present suit was not maintainable. It is also made clear that during the course of proceedings before the Collector, Gulab Singh died and his legal heirs could not be brought on record. Plaintiffs were aggrieved primarily of the possession of the defendants over the suit land. It is, in these circumstances that suit was filed by the plaintiffs for redemption of mortgaged land, injunction and possession against the defendants. Present suit was not barred for mis-joinder of the causes of action. Suit was not barred under the principle of res-judicata. 11. The substantial questions of law are answered accordingly. 12. Accordingly, in view of the discussion and analysis made hereinabove, the present appeal is devoid of merit and the same is dismissed. Pending applications, if any, also stand disposed of. No costs.