SHRIMATI RATNI Vs. BALBIR SINGH

JUDGEMENT

(1.) This is regular second appeal directed by the plaintiffs against the judgment dated 11.09.1987 passed by Shiri S.N. Chadha, Additional District Judge, Gurgaon vide which the appeal preferred by the plaintiffs against the judgment dated 21.11.1985 passed by Shri Subhash Goyal, Sub Judge IInd Class, Gurgaon, was dismissed.

(2.) Briefly stated, Ratni and Sharbati filed a suit for declaration with consequential relief of possession with the allegations that Jiya Ram s/o Udwa and Kundan s/o Mohru were owners in possession of the agricultural land measuring 2 bighas 12 biswas in equal shares situated in village Gurgaon. Kundan mortgaged with possession his half share equal to 1 bigha 6 biswas vide registered mortgage deed dated 29.08.1921 to Dharam Chand s/o Nathan with all rights. Mutation of the said mortgage was also sanctioned vide mutation No. 850 dated 06.05.1922. Kundan Lal died and after his death, the suit land was got mutated in favour of the defendants in equal shares. The mortgagee Dharam Chand also died and the land was mutated in the name of Fateh Chand who also died subsequently, leaving behind his widow Dhapa and two daughters Ratni and Sharbati. Fateh Chand died before the Indian Succession Act came into force and after his death, Dhapa became the absolute owner of the land. Dhapa also died and the land was mutated in favour of the plaintiffs. The suit land was allotted in lieu of the land mortgaged. The period of redemption of mortgage has expired and the land has not been redeemed. So, the defendants/mortgagors have lost their right of redemption and the plaintiffs have become the absolute owners of the property to the extent of one half share. It is further alleged that the land in dispute is in possession of the plaintiffs. It is further alleged that defendants are in cultivating possession of the suit land as tenants under the plaintiffs and are paying batai-tehai regularly to the plaintiffs.

(3.) Notice of the suit was given to the defendants. Defendants appeared and filed written statement taking preliminary objections that the plaintiffs are not owner in possession of the suit property but the defendants are owner in possession of the suit property.