SINGH RAM Vs. JAGIR SINGH

JUDGEMENT

(1.) THE defendants-appellants have filed this appeal against the judgment and decree dated 1-8-1990 passed by the Additional District Judge, Faridabad; by which their appeal was dismissed and the appeal filed by the plaintiffs-respondents was partly allowed.

(2.) BRIEFLY stated, the facts of the case are as follows :-Ganeshi, plaintiff respondent No. 5 son of Pran Sukh was the owner in possession of agricultural land measuring 1/0 Kanals 9 Marias, comprised in Khewat/khatautti No. 42/55 and 06 and 180/240 to 242, as detailed in paragraph 1 of the plaint and shown in the jamabandi for the year 1982-83. He mortgaged the aforesaid land to defendant-appellant No. 1 for a consideration of Rs. 5000/ -. Plaintiff-respondent No. 5 was subsequently declared as a big landowner and his land measuring 91 Kanals 15 Marias, comprised in Khewat/khatami No. 180/240 to 242 , as detailed in paragraph No. 3 of the plaint, was declared surplus and. later on, vested in the Haryana State Government by operation of law Thereafter, he was left with no right, title or interest of any sort in this land. The remaining agricultural land measuring 28 Kanals 14 Marias, comprised in Khewat/khatauni No. 42/ 55 and 56, as detailed in paragraph 4 of the plaint, remained with him as his reserved/permissible area. This land was subsequently transferred by the plaintiff respondent No, 5 to plaintiffs-respondents Nos. 1 to 4 by way of family settlement arrived at between them. Plaintiffs-respondents Nos. 1 to 4 thus were the mortgagors of this land measuring 28 Kanals 14 Marias, as mentioned above, and the Haryana State Government was recorded as mortgagor of the remaining land measuring 91 Kanals 15 Marias Defendant-appellant No I was in possession of the whole of land measuring 120 Kanals 9 Marias. Defendant-appellant No. 2 being the son of defendant-appellant No. 1, has been shown in cultivating possession of some land out of this land and, in the same way, Kaluta (defendant No. 3) has also been shown in cultivating possession of some land out of this land, in dispute, and when defendants Nos. 2 and 3 got the possession of this land from defendant-appellant No. 1, certainly they were bound to go with defendant-appellant No. 1 (mortgagee) as and when the land, in dispute, was redeemed. The plaintiffs-respondents Nos. 1 to 5 filed a suit for possession by way of redemption of the mortgage on payment of Rs. 5000/ -. In the alternative, the plaintiffs claimed a decree for possession of land measuring 28 Kanals 14 Marias out of the suit land, on payment of proportionate mortgage money of Rs. 1192/ -.

(3.) THE defendants Nos. 1 to 3 filed a joint written statement admitting therein the mortgage of the whole land measuring 120 Kanals 9 Marias in favour of defendant-appellant No. 1. They further averred that the suit of the plaintiffs for redemption of land measuring 91 Kanals 15 Marias was not maintainable, because this land has vested in the State Government They also admitted that 28 Kanals 14 Marias of land was owned by plaintiffs-respondents No. 1 to 4. 5. On the pleadings of the parties the following issues were framed :