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2019 DIGILAW 333 (HP)

Jhunkhru Ram v. Mohi Ram

2019-03-29

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, where through, the plaintiff's suit for redemption of the suit property hence stood decreed, whereas, the defendants' counter-claim rather stood dismissed. 2. Briefly stated the facts of the case are that the plaintiffs were owners in possession of the suit land as detailed in the plaint. On 13.06.1985, the plaintiffs and other co-owners namely late Smt. Surmi and late Sh. Ramsa mortgaged the aforesaid land in favour of late Kundan Singh, i.e. the father of defendants No.2 to 5, and, also in favour of Jhinu, the father of defendant No.1, before the A.C. 2nd Grade, Kupvi. The defendants were cultivating the suit land and utilizing the produce/crop for their beneficial enjoyment in lieu of rent to the tune of Rs.2,000/-. After the death of Smt. Surmi and Smt. Ramsa, who died issueless, plaintiffs redeemed Khasra number 3701 measuring 02-17 bigha and order dated 27.01.1987 was also passed by A.C. 2nd Grade, Kupvi in case No. 12-XIII/85 and mutation No.8549 was also attested qua that effect. The suit land is still under mortgage and is in possession of defendants. Now, the plaintiffs intend to redeem the said property and are ready to make payment of mortgage amount, i.e. Rs.2000/-. Now in the 2nd week of November, 2011, the plaintiff requested the defendants to accept the mortgage money and deliver the possession thereof, and, on 5.12.2011, a legal notice was also issued, but no heed was paid to their genuine request. As a matter of fact, the defendants intends to grab the valuable land. Since, this was so, they were left with no other option, but to file the present suit. 3. The defendants contested the suit and filed written statement, wherein, the have taken preliminary objections, qua locus standi, estoppel, non joinder and mis joinder of parties, cause of action, valuation, and limitation etc. On merits, it is submitted that the plaintiffs never remained in possession of the suit land, nor they cultivated it in any manner. As a matter of fact, the suit land was mortgaged with the ancestors of he defendants way back in the year 1900 A.D. and it was not got redeemed within the statutory period as prescribed for it. Hence, now the defendants have become its owner by way of efflux of time. As a matter of fact, the suit land was mortgaged with the ancestors of he defendants way back in the year 1900 A.D. and it was not got redeemed within the statutory period as prescribed for it. Hence, now the defendants have become its owner by way of efflux of time. Moreover, at the time of mortgage, the suit land was described as 'Banjar Kadeem' and it was also sloppy and not in cultivable condition. The land was developed by the predecessors-in-interest of the defendant by incurring huge amount. It is categorically denied that the mortgage was effected on 13.06.1985 for a sum of Rs.2,000/-. Order as passed by the A.C. 2nd Grade and the mutations attested are stated to be null and void. Moreover, the factum regarding mortgage of part of suit property has also been denied as it could not have been done. Further, the plaintiffs are taking contrary stand, as at one point of time, they state that the mortgage money had been paid during the course of proceedings of redemption before the A.C. 2nd Grade, Kupvi and now they are again showing their intention to make the payment. It is averred that the plaintiffs have no right to redeem the suit property. 4. The plaintiffs filed replication to the written statement of the defendants, wherein, they denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. Defendants also filed counter claim alleging that now the describing the suit property is Khata/Khatauni No. 109/222 and 223, Khasra numbers 613, 615, 616, 618, 620, 794, 800, 807 and 809 and Khata/Khatauni No. 111 min/227 Khasra number 944, 947 to 949, in Chak Hira Pargana Chehta, Tehsil Chopal, District Shimla, H.P. Similar facts have been alleged that the land was mortgaged way back in 1900 A.D. and neither the plaintiffs nor their predecessor-in-interest redeemed the property within the statutory period. Their ancestors developed the suit land and incurred huge expenses. The mutation number 7466 dated 30.05.1984 as attested by A.C. 2nd Grade, Kupvi regarding redemption of land comprised in Khata Sabik No.105/127 and Khata Jadid No. 109, 1986/87, Kita 5, measuring 12- 17bighas Mauja Hira Pargana Chehta for Rs.1000/- is stated to be null and void. Further, mutation No.7468 of 13.6.1985, regarding mortgage of the suit property is also stated to have been entered wrongly behind the back of counter-claimants. Further, mutation No.7468 of 13.6.1985, regarding mortgage of the suit property is also stated to have been entered wrongly behind the back of counter-claimants. It is stated that plaintiff NO.5 preferred an application for correction of revenue entries under Section 37 of H.P. Land Revenue Act in respect of Khasra No.3701 on 20.09.1985 before the A.C. 2nd Grade, Kupvi, in which it is alleged that the aforesaid khasra number had already been redeemed 12-13 years back and he paid the mortgage money. Vide order dated 27.01.1987in Case No. 12-XIII/85, the aforesaid Khasra number was ordered to be redeemed and mutation No.7549 dated 9.11.1987 was already attested by the A.C. 2nd Grade, Kupvi, as a matter of fact, he had no right to redeem it. The counter-claimants are in peaceful and continuous possession of five kahsra numbers. 6. The plaintiffs/non-counter-claimants also filed written statement to counter-claim of the defendants, wherein they have taken preliminary objections qua locus standi, estoppel, etc. On merits, the claim of the defendants/counter-claimants denied, and, the averments made in the plain were reiterated. 7. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiffs and other co-owners had mortgaged the suit land- I, comprised in Khasra Nos. 3760, 3762, 3863 and 3864 measuring 10 bigha, situated in Chak Hida, Pargana Chehta, Tehsil Chopal, District Shimla, on 13.06.1985? If not, when was the land mortgaged and its effect? OPP. 2. Whether the plaintiffs have right to redeem the suit land from the mortgagee? If so, in what manner? OPP. 3. Whether the plaintiffs are estopped from filing the present suit by their own acts, conduct and acquiescences? OPD. 4. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD. 5. Whether the suit is barred by limitation? OPD. 6. Whether the suit land-II, comprised in Khasra No.3701 was not legally redeemed? OPCC 7. Whether the counter-claimants are entitled to a decree of declaration, as prayed for? OPCC 8. Whether the counter-claimants are entitled to confirmation or recovery of possession of the suit land-II, as prayed for? OPCC 9. Whether the counter-claimants are estopped from making the present counter-claim due to their own acts, conduct and acquiescences? OPNCC 10. Whether the counter-claimants have not approached the court with clean hands? OPNCC 11. Relief. 8. OPCC 8. Whether the counter-claimants are entitled to confirmation or recovery of possession of the suit land-II, as prayed for? OPCC 9. Whether the counter-claimants are estopped from making the present counter-claim due to their own acts, conduct and acquiescences? OPNCC 10. Whether the counter-claimants have not approached the court with clean hands? OPNCC 11. Relief. 8. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents herein, whereas, it dismissed the defendants'/counter-claimants', counterclaim. In an appeal, preferred therefrom, by, the defendants/appellants herein, before the learned First Appellate Court, the latter Court dismissed, the, appeal, and, affirmed the findings recorded by the learned trial Court. 9. Now the defendants/appellant(s) herein, have instituted the instant Regular Second Appeal, before, this Court, wherein, they hence assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. 10. A presumption of truth is attached to Ex.DW6/A, exhibit whereof is a copy, of, the jamabandi appertaining to the suit land, and, is pertaining to the year 1939-40, Ex.DW6/B, is a copy of jamabandi, appertaining to the suit land, relating to the year 1944- 45, Ex.DW1/F, is a copy of jamabandi, appertaining to the suit land, relating to the year 1951-52, Ex. DW1/G, Ex.DW1/H, Ex.DW1/K, are, copies of jamabandis, appertaining to the suit land, and, respectively relate to the years, 1986-87, 1991-92, and, 1996-97. All the afore exhibits, carry reflections therein qua the predecessor-in-interest, of the defendants, being recorded in the column(s) of possession thereof, to be hence holding possession, of the suit land, rather as mortgagees. The afore presumption of truth, acquires conclusivity, especially for want of any evidence in rebuttal thereof, rather being adduced by the plaintiffs. All the afore exhibits, carry reflections therein qua the predecessor-in-interest, of the defendants, being recorded in the column(s) of possession thereof, to be hence holding possession, of the suit land, rather as mortgagees. The afore presumption of truth, acquires conclusivity, especially for want of any evidence in rebuttal thereof, rather being adduced by the plaintiffs. Even if, conclusivity is acquired by the afore reflections, borne in the afore exhibits, thereupon, the defendants' espousal, that the mutation of mortgage attested, vis-avis, the suit land, on 13.06.1985, and, bearing No. 7468, not arousing, any cause of action, vis-a-vis, the plaintiffs' suit for redemption nor also the counsel for the defendants/counter-claimants, being enabled to argue that the afore espousal, being falsified, the reason for forming the afore conclusion, is, grooved in (a) even if the suit property is subjected, to a usufructuary mortgage, thereupon, the bar to, the, plaintiffs' suit for redemption, of, the usufructuarily hence mortgaged suit property, (b) or for rather, the, mortgagees' to beget success, in his/their contest qua, with, the statutorily prescribed period of limitation, for rendition, of, a valid decree, of redemption, hence, expiring, and, thereupon, rather their espousal, for rendition, of a decree, for foreclosure, acquiring validity, (c) necessarily required, rather adduction, of, forthright evidence, qua despite, the defendants appropriating profits, derived, from the usufructuarily mortgaged suit property, and, hence, thereupon, the mortgaged money hence being fully satisfied, yet, since the afore appropriations occurring, and, imperatively within thirty years therefrom, the plaintiffs/mortgagors, rather omitting to institute a suit for redeeming, hence, the suit property, (d) however, the afore evidence is grossly amiss, thereupon, the concomitant thereto sequel, is, qua with their being, no clog, against redemption, (e) rather with the plaintiffs/mortgagors, evincing their willingness, to liquidate the mortgage debt, hence, the plaintiff were well equipped, to seek redemption of the mortgaged suit property, also, the defendants/counter-claimants, were disabled, to urge that they hold any right to seek a decree for foreclosure, vis-a-vis, the usufructuarily mortgaged suit property. 11. 11. Furthermore, the mere attestation of mutation No. 7468 of 13.06.1985, whereas, much earlier thereto also the suit property stood hence already mortgaged, would not, yet enliven any indefeasible right, in the mortgagees/counter-claimants/defendants, (i) to either insist, upon, rendition of a decree for foreclosure or to bar the plaintiffs/mortgagors, to, claim a decree for redemption, (ii) conspicuously when the afore attestation of mutation, was recorded, in the presence of the predecessor-in-interest of the defendants No.2 to 5, one Kundan, who thereafter failed, during his life time, hence cast a challenge thereto, (iii) thereupon, the successors-in-interest are all barred to cast a challenge thereto. Also otherwise, the afore attestation, of mutation, appears to be merely a ministerial act, to confirm, the earlier mortgage of the suit land, by the predecessor-in-interest of the plaintiffs, vis-a-vis, the predecessor-in-interest of the defendants, and, nor hence the earlier thereto, rather the afore reflections, are, effaced. 12. A part of the suit property, stood redeemed, under a mutation bearing No. 7466, recorded on 30.05.1984, and, in contemporaneity, vis-a-vis, the attestation of mutation, embodied in Ex.DW1/O, (i) the predecessors-in-interest of defendants No.2 to 5, one Kundan, recorded his presence, before the authority concerned, (ii) and when he omitted, to, during his life time, hence cast a challenge thereto, thereupon, his successors-in-interest are also estopped, to make any challenge thereon, (iii) significantly also when the afore mutation has been validly attested, under, the provisions, borne in the Redemption of Mortgages Act, besides when corrections of the revenue entries were made, in consonance therewith by the Assistant Collector 2nd Grade, Kupvi, hence, the, requisite corrections also acquire a concomitant hue of validity. 13. The above discussion, unfolds, that the conclusions as arrived by both the learned Courts below, being based, upon a proper and mature appreciation of evidence on record. While rendering the findings, both the learned Courts below have not excluded germane and apposite material from consideration. Consequently, no substantial question of law much less a substantial question of law arises for determination in this appeal. 14. In view of the above discussion, there is no merit in the instant appeal, and, it is dismissed accordingly. In sequel, the judgments and decrees impugned before this Court are affirmed and maintained. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.