SUCHA SINGH Vs. NIGHAYA RAM

JUDGEMENT

(1.) This is a defendants' appeal against an appellate decree passed by Mr. Jagdish Narain Kapur, Additional District Judge, Ambala, dated the 21th of December, 1952, confirming the decree of the trial Court.

(2.) The facts of the case which have given rise to the appeal are that on the 8th of June, 1915, Nighaya and his brother mortgaged occupancy rights of certain land to the predecessors of Sucha Singh and others for a sum of Rs. 1000/-. In 1928 the occupancy tenants applied that they wanted to sell their occupancy rights. An order was made under Section 53 of the Punjab Tenancy Act on the 15th of May, 1930, allowing the occupancy tenants to sell 11 bighas 19 biswas to Sucha Singh for a sum of Rs. 675/- out of which Rs. 375/-were to be paid within three weeks and Rs. 300/-were to go towards the payment of the mortgage. I am informed that Rs. 375/- were paid within the time allowed in the order. An appeal was taken against this order by the occupancy tenants which was allowed on the 7th of August, 1930, to this extent that the value was varied from Rs. 150/- per bigha to Rs. 160/- per bigha. This additional sum of money, it appears, was never paid. On the 19th of January, 1931, a mutation of sale was sanctioned when both the occupancy tenants as well as the mortgagees were present. At that time the occupancy tenants stated that they will file a suit to enforce their right ('lekan ham dawa diwani karenge'). In 1932 a suit was brought by the occupancy tenants claiming that they were entitled to fifteen-anna share. But this suit was dismissed.

(3.) On the 20th July, 1942, a suit for redemption of 28 bighas was brought which was decreed. On the 11th of January, 1950, Nighaya brought a suit for redemption of the balance, that is, 11 'bighas' 19 'biswas'. The defence was that the mortgagee rights had been extinguished because of the purchase under Section 53 of the Punjab Tenancy Act and that even if there was no valid sale the right of the mortgagees had ripened into ownership because of their having been in adverse possession for the statutory period of twelve years. The learned Additional District Judge in appeal held that the mortgage was still subsisting and it had not been turned into a sale and that no question of adverse possession arose because the possession of the defendants was not as owners. The defendants have come up in second appeal to this Court.