SMT. LEELA WANTI Vs. GURNAM SINGH AND OTHERS

JUDGEMENT

(1.) It is defendant's second appeal whose suit for possession without any payment and in the alternative for possession by redemption, has been decreed by both the Courts below.

(2.) The plaintiffs filed the suit for possession by way of redemption on payment of Rs. 5,300.00 (mortgage money of the suit land). According to the plaint, Hari Singh sold land on March 19, 1957, measuring 52 kanals for Rs. 9,500.00 in favour of Puran Singh. A sum of Rs. 5,300.00 was kept as amanat for the previous mortgagee Bahadur Singh, defendant. Gurnam Singh, plaintiff No. 1, and Lachhman Singh, deceased, father of defendants Nos. 2 to 4 and 6, filed a suit for pre-emption of the afore-said land. The suit was decreed on June 18, 1958, and the consideration was held to be Rs. 8,800.00. It was ordered by the Court that Rs. 3,500.00 be paid by March 18, 1958. Rest of the amount of Rs. 5,300.00 was to be kept by the preemptor for payment to the previous mortgagee Bahadur Singh. The said amount of Rs. 3,500.00 was deposited in the Court by the plaintiff and the symbolical possession was obtained in execution of that decree on Dec. 22, 1958. It was submitted that the right of preemption vested in the plaintiffs, but Hari Singh fraudulantly redeemed the land in suit alongwith other land from Bahadur Singh from the Court of the Collector, Amritsar. Hari Singh had no equity of redemption of the suit land. After the death of Lachhman Singh, Plaintiffs Nos. 2 to 6 were his legal representatives. Han Singh, vendor, also died and defendant No. 1 was his legal representative. After the redemption of the land in suit, Hari Singh, mortgaged portion of the suit land to defendants Nos. 3 and 4, but that mortgage had been redeemed. Consolidation of holdings had taken place, but since there was no mutation entered into their names, the entire land was put in one pool of Hari Singh. The suit was contested by defendant No. 1 by raising various pleas on the basis of which the issues were framed by the trial Court. After allowing the parties to lead evidence, it was concluded that the suit filed by the plaintiffs was within time; the decree for preemption had been duly executed and symbolical possession was given to the plaintiffs and actual physical possession could not be given as the land was mortgaged and could be redeemed later on. As regards the effect of the Collector's order redeeming the land in favour of defendant No. 1, the trial Court found that in view of the pre-emption decree the plaintiffs had become entitled to get their shares redeemed from Hari Singh, deceased, on payment of Rs. 5,300.00. In view of these findings, the plaintiff's suit was decreed for possession by way of redemption on payment of Rs. 5,300.00. In appeal, the learned Additional District Judge affirmed the said findings of the trial Court and thus maintained the decree passed in favour of the plaintiffs.

(3.) At the time of the motion hearing, it was contended that there was no evidence to hold that the suit land was allotted in consolidation in lieu of the land mortgaged.