DAULAT RAM Vs. SAROOP RAM

JUDGEMENT

(1.) Leave granted.

(2.) This appeal by special leave arises from the judgment and order dated August 25, 1993 made in Regular Second Appeal No. 2311/92 by the Punjab and Haryana High Court. The appellant laid this suit on April 8, 1986 for declaration and possession of the plaint suit property on the plea that it had fallen to his share through private partition and, thereafter, he has become the absolute owner thereof. The trial Court as well as the appellate Court disbelieved the evidence which held that the appellant is not in exclusive possession. It was contended in the appeal before the High Court and repeated in the special leave petition that he had redeemed the property by himself. Therefore, by subrogation he became the mortgagee unless other co-owner redeem the mortgage from him he remains as mortgagee and the suit should have been decreed on that basis.

(3.) The respondents have filed counter-affidavit in that behalf. They are denying the allegation that the appellant alone had redeemed the mortgage of one of the items of property. It was joint redemption by co-owners. It was also pointed out that the trial Court and the appellate Court had gone into the question and negatived the contention of the appellant. It was contended for the appellant that in view of the admitted position of the appellant's payment of the mortgage amount to the Commissioner of Custodian of Evacuee Property and in view of entries for one of the years in the mutation that he was in self cultivation, it must be construed that the appellant alone had redeemed the mortgage thereof. After subrogation he became the mortgagee until redemption by the co-owners, his possession as a mortgagee cannot be disturbed. We find no force in the contention. Firstly, there is no such specific pleadings. Secondly, no such issue was raised. Even then in view of the evidence on record recorded by Courts below, they have gone into the question, observing thus: