BHARAT SINGH Vs. DEENA

JUDGEMENT

(1.) THIS appeal filed by the plaintiff-appellants is directed against the judgment and decree dated 25-5-1987 passed by the Additional District Judge by which their appeal was dismissed and the judgment and decree passed by trial Court dated 10-10-1986 was upheld.

(2.) BRIEFLY, the facts of the plaintiffs-appellants' case are that defendant Dina had mortgaged his land measuring 9 bighas 18 biswas (after consolidation 47 kanals 13 marlas), as detailed in para No. 1 of the plaint, for a sura of Rs. 2,500/- vide registered mortgage' deed dated 8-2-1947 Ex. P. I with Har Kishan, Bharat Singh and Khubi Ram, predecessors of the appellants and in this regard mutation No. 235 dated 29-6-1947 was sanctioned. On 23-6-1978, defendant Dina had filed an application for redemption of this land before Collector, Jhajjar, which was accepted on 29-2-1980 and land was ordered to be redeemed on payment of Rs. 2,500/- as mortgage money. The plaintiffs have challenged the vires of this order of the Collector, Jhajjar alleging that the same is void and ineffective and does not affect the rights of the plaintiffs because the said application was illegally entertained by the Collector against law. It may be stated here that during the pendency of the suit, plaintiff No. 1 Har Kishan, plaintiff No. 3 Ghogri and plaintiff No. 5 Sohni had expired and accordingly their legal representatives were brought on the file It is also alleged by the plaintiffs that earlier plaintiffs had filed one suit titled as Har Kishan v. Dina in the Court of Sub-Judge, Jhajjar, but during the appeal before the District Judge, Rohtak, the plaintiffs withdrew the said suit with permission to file a fresh one on the same cause of action because there was some formal defect, in the said suit. It is also alleged that as plaintiffs had been prosecuting the said civil suit in good faith and with due diligence, they are entitled to exclude the time from 21-3-1980 to 15 2-1982 spent for pursuing the said suit while computing the period of limitation. (This plea was taken after the plaintiffs filed an amendment application before the learned District Judge, who after allowing the amendment, remanded the case to the trial court vide judgment dated 28-8-1985 ). Accordingly, defendant was asked to admit the plaintiffs to be the owners of the land in dispute but when he did not agree, plaintiffs filed the present suit for declaration that they are owners in possession of the land and order of Collector, Jhajjar, dated 29-2-1980 is void, ineffective and not binding on their rights.

(3.) IN the written statement, the defendant has taken preliminary objections that the suit is not within time; that suit is bad for non-joinder of necessary parties; that the suit is bad for misjoinder of causes of action and that plaintiffs are estopped from filing this suit by their own act and conduct. The passing of the impugned order dated 29-2-1980 by Collector Jhajjar has been admitted but it is alleged that this order is quite legal and valid and is binding upon the parties. It is then alleged that the earlier suit was withdrawn by the plaintiffs because they knew that the same was to be dismissed and accordingly they have no right to file the present suit as the same is time-barred and that plaintiffs did not pursue the previous suit in good faith and with due diligence and accordingly they are not entitled to exclude the time spent by them in pursuing the said suit from the period of limitation.