SWARAN SINGH Vs. PRITAM KAUR

JUDGEMENT

(1.) THE plaintiff-appellants have challenged the judgment and decree passed by Additional District Judge Amirtsar vide which appeal filed by defendants-respondents was accepted and the suit of the plaintiffs was dismissed by reversing the judgment and decree passed by Sub-Judge 1st Class Tarn Taran. The brief facts may first be noticed.

(2.) PLAINTIFFS filed a suit for declaration that inasmuch as the land subject matter of mortage which is in their possession or was in possession of their predecessors in interest for the last more than 30 years as mortagees having not been redeemed, they have become owners of the same by prescription of time. The proved facts go to show that the land subject matter of dispute was mortgaged by Chanehal Singh predecessor-in-interest of defendant-respondents in favour of father of plaintiffs Chanan Singh son of Jhanda Singh. The mortgage was by way of a registered document. The mortgage amount was Rs. 1,000/- and the total land subject matter of mortgage was 13 Kanals 10 Marias entered in Khasra Nos. 388, 390 and 510 as per "jamabandi" for the year 1941-42. On account of death of original mortgagee the plaintiffs who were his legal heirs succeeded to the mortgagee rights and mutation of inheritance was duly sanctioned in their favour. It is also proved that the predecessor-in-interest of the plaintiffs continued to be in possession and after his death, the plaintiffs continue to be in possession of the land in dispute. The record of the case further goes to show that the above said material facts were even admitted by the defendants. Defendants admitted that the land was mortgaged on March 11, 1944 by Chanchal Singh in favour of Chanan Singh son of Jhanda Singh and the particulars of the land subject matter of mortgage were the same as were mentioned in the plaint. The suit was sought to be resisted on the only ground that inasmuch as the request of the defendants so made orally prior to the expiry of period of 30 years to the plaintiffs for redemption of the land haying been refused, the plaintiffs were not entitled to the decree. The learned trial Court decreed the suit and it was held that the plaintiffs had become owners of the suit land by lapse of time. Against this judgment and decree passed by Sub-Judge 1st Class Tarn Taran, an appeal was filed by the defendants which as, referred to above, succeeded.

(3.) THE learned counsel for the appellants contends that the finding recorded by the first Appellate Court, even after recording that the facts stated above were proved to the hilt that even though right of the defendants to redeem the mortgage had been lost it would not necessarily follow that the plaintiffs have become owners of the land in suit cannot sustain for the reason that the moment the statutory period for redemption expires, the mortgagees would have a right to sue for four-closer under the provision of Section 67 of the Transfer of Property Act and the effect of such foreclosure would necessarily result in declaration that the plaintiffs have become owners of the property.