BACHAN SINGH Vs. ARJAN SINGH

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of the Senior Subordinate Judge, Ludhiana dated 14th December, 1970 whereby, reversing the judgment and decree of the trial Court, the suit of the plaintiffs was dismissed leaving the parties to bear their own costs.

(2.) The plaintiffs-appellants brought a suit on the following allegations. The land in dispute was mortgaged by Charat Singh son of Bhola for Rs. 99 to one Ram Bux. The successor of the mortgagor sold this land to the plaintiffs and ultimately the defendants 1 to 5 who are the respondents in this appeal became mortgagees. The mortgagors filed an application under Section 4 of the Punjab Redemption of Mortgages Act, 1913 before the Collector for the redemption of this mortgage but this application was dismissed for default and the second application was then filed which also resulted in dismissal on the ground that an earlier application had been dismissed. Meanwhile, consolidation proceedings took place in the village and somehow the mortgagors took possession of the land allotted in lieu of the mortgaged land. Faced with this situation the mortgagees brought a suit for possession on the ground that they had become owners of the mortgaged land, the mortgage not having been redeemed for more than sixty years. In this suit a decree for possession was passed in favour of the mortgagees but it was held that the mortgage still subsisted. In view of this decision the mortgagors filed the present suit claiming possession on the ground that the mortgage having been redeemed, the mortgagors as owners were entitled to the possession of the disputed land. In the alternative a prayer was made that a declaration be granted that they were entitled to redeem the land on payment of Rs. 99.

(3.) The suit was contested by the mortgagees and it was pleaded that the mortgage not having been redeemed within sixty years they had become absolute owners. The allegations that the mortgage had been redeemed were denied and a plea was also taken that the present suit was not maintainable as no suit had been filed under Section 12 of the Punjab Redemption of Mortgages Act. The pleadings of the parties gave rise to the following issues :-