BELI RAM Vs. SALIG RAM

JUDGEMENT

(1.) This appeal at the instance of the plaintiffs has been directed against the order dated 3-7-1986 passed in R. S. A. No. 211/1986 dismissing the appeal summarily preferred against the judgment and decree dated 20-3-1986 passed by the Additional District Judge (II), Kangra at Dharamshalal, HP in Civil Appeal No.11/1986 setting aside the judgment and decree dated 14-12-1981 passed by the Sub Judge, 1st Class, Dharamshalal in Civil Suit No. 72/1980 whereby the plaintiffs suit for possession of the land in suit by redemption was decreed.

(2.) This appeal has a chequered history the facts of which may be narrated thus: Mehtaba, S/o Ghelu Ram, resident of Village Rakkar had 1/12th share in the agricultural lands in question. Mehtaba mortgaged the same with possession with salig Ram, the defndant -respondent herein, on 4-8-1937 for a sum of Rs. 190/-. The plaintiff-appellant No. 1 is the cousin of said Mehtaba and plaintiff-appellant No.2 Smt. Ramo Devi is the sister of Mehtaba. The appellants shall hereinafter be referred to as plaintiffs and the respondent as defendant. The plaintiffs brought the suit for possession of land in question by redemption contending that mortgagor of land Mehtaba was not heard of for the last more than 7 years and, therefore, he is deemed to be dead under the law and the plaintiffs being the only heirs of mehtaba are entitled to redeem the land. The plaintiffs alleged that they offered the mortgage amount of Rs.190/- to the defendant requisiting him to redeem the land by delivery of possession to them but the defendant declined to do so and hence they were forced to institute the suit for possession by redemption. The defendant contested the suit by filing the written statement traversing the afore-mentioned pleadings of the plaintiffs. The defendant took preliminary objections to the effect that Mehtaba was not dead but alive and that neither the plaintiff No.1 was cousin nor the plaintiff No. 2 the sister of Mehtaba and, therefore, they had no locus standi to institute the suit for redemption during the lifetime of Mehtaba. The defendant also pleaded that the suit was not filed within time. The defendant pleaded that the plaintiff No. 2 Smt. Ramo Devi had not appended her thumb impression on the plaint or Mukhtarnama and that her name has been fictitiously entered by the plaintiff No.1 in the plaint. The defendant also pleaded that by their acts and conduct the plaintiffs are estopped from filing the suit .

(3.) Initially the plaintiffs adduced evidence in support of their claim for redemption but the defendant did not adduce any evidence nor examined himself as a witness on his behalf. Learned Civil Judge accepting the unrebutted evidence of the plaintiffs decreed the suit for possession by redemption by holing that Mehtaba has not been heard of for the last about 20 years and, therefore, he would be presumed to be dead and the plaintiffs being his legal heirs had a right to file the suit for redemption. The defendants went up in appeal before the District Judge against the aforesaid judgment and decree passed by the Senior Sub-Judge , Kangra but the learned District Judge by his judgment dated 11-8-1975 affirmed the said decree passed by the Trial Court. The defedant then further appealed to the High Court. In the High Court the defendant made an application for amendment in his written statement as by them he along with one Khushi Ram had obtained a compromise decree on 9-1-1973 against Mehtaba from the Court of Sub-Judge, Kangra. The High Court by order dated 28-6-1978 allowed the application of defendant for amendment of a written statement and as a consequence of amendment in the pleadings remanded the case back to the Trial Court for a fresh trial after framing the additional issues which are as follows:-