STATE OF HIMACHAL PRADESH Vs. AKSHARA NAND D

JUDGEMENT

(1.) The defendants in the suit, the State of H. P. and the Collector, Solan District are the appellants before this Court and the appeal has been filed against the judgment and decree passed by the learned single Judge of the Himachal Pradesh High Court in R.S.A. No. 184/84, allowing the appeal and consequently decreeing the suit as prayed for, on setting aside the the judgments and decrees concurrently passed by both the Courts below dismissing the suit filed by the plaintiffs, in respect of 29 bighas and 4 biswas.

(2.) The plaintiffs claimed the relief of declaration of title to the suit properties and also for permanent injunction restraining the defendants from interfering with the rights and possession of the plaintiffs. The basis of the claim was that Smt. Gangi, widow of Chanchlu and Shri Chanchlu mortgaged the suit properties in all measuring about 35 bighas and 7 biswas situated in village Basha, Pargna Bagri Kalan, Tehsil Kandaghat, District Simla with the predecessors-in-interest of the plaintiffs more than 60 years before and inasmuch as the said mortgage has not been redeemed by the mortgagee or their successor in their interest, within a period of 30 years, the plaintiffs became the owners of the property. The mortgagee Shri Chanchlu was said to have died and thereafter his wife Smt. Gangi also died issueless. The case of the defendants was that the mortgage stood redeemed as early as on 9-8-1954, which fact also stood admitted by some of the plaintiffs in their statements given before the Tehsildar Kandaghat on 19-7-1976 and that therefore the property vested with the State by escheat since Smt. Gangi died issuless and there was no heir to succeed to the properties through the original owners.

(3.) The learned trial Judge on consideration of the materials on record held that an extent of 6 bighas and 3 biswas could not be said to have been redeemed and that the redemption claimed could only relate to the remaining extent of 29 bighas and 4 biswas. Accepting the stand of the defendants the suit claim was dismissed in respect of 29 bighas and 4 biswas. Aggrieved the plaintiffs pursued the matter on appeal before the first Appellate Court which also concurred with the findings of the learned trial Judge and dismissed the appeal. Thereupon the matter was pursued before the High Court in a second appeal. The learned single Judge of the High Court accepted the claim of the plaintiffs mainly on the ground that the documents marked as Ex. PDA was inadmissible in evidence and could not have been relied upon by the Courts below for coming to the conclusion that the mortgage stood redeemed. Hence this appeal. We have heard the learned counsel appearing on either side.