KUNDAN SINGH REPRESENTED Vs. DALIP SINGH AND OTHERS

JUDGEMENT

(1.) The following pedigree table would be of help in understanding the facts of the case.

(2.) The trial Court found merit in the stand taken by Kundan Singh defendant and by judgment and decree dated 30.1.1972 dismissed the suit. Earlier to this also suit was dismissed and on plaintiff's appeal, the matter was remanded for framing four more issues. On plaintiff's appeal the learned Senior Sub-Judge, Amritsar, by judgment and decree dated 18.1.1975 reversed the decision of the trial Court after accepting the stand taken on behalf of the plaintiff. In doing so, reliance was placed on Fazal Ahmad and others v. Shahab Din and others, and Jagan Singh v. Teja Singh,1970 PunLR 569. Kundan Singh defendant has come to this Court in this second appeal.

(3.) After perusing the entire record and considering the relevant facts, I am of the considered opinion that the lower Appellate Court seriously erred in law in reversing the well considered judgment and decree of the trial Court. A reading of the judgment of the lower Appellate Court shows that it proceeded on the assumption that the decree dated 10.2.1945 was the usual declaratory decree to the effect that the sale made by Harnam Singh in favour of Bhan Singh would not affect the revisionary right. If the form of the decree had been in those terms, no exception could be taken to the judgment and decree of the lower Appellate Court because they would have been in consonance with the two decisions relied upon. On the other hand, what I find from the compromise Exhibit D.1 is that the vendee agreed to have the sale cancelled and he further agreed that he will be deemed to be a mortgagee for Rs. 1100/- for a period of five years, which could be redeemed by Kashmir Singh after five years. The written compromise was followed by the statements of the parties, the copy of which has been placed on the record as Exhibit D.2. Both the sides produced copy of the decree, Exhibit P.3, by the plaintiffs and Exhibit D.5 by the defendants and a reading of the same shows that the decree was granted in terms of the written compromise and the statements of the parties. Therefore, on the facts in hand, the resultant effect of the decree dated 10.2.1945 was that there was no sale and instead Bhan Singh was considered as a mortgagee with possession for Rs. 1100/- and Kashmir Singh was considered as mortgagor with a right to redeem only after five years. On these facts, no suit for possession on the death of Harnam Singh was permissible even if he were to die a day after 10.2.1945. Only Kashmir Singh was recognised by the decree to redeem the mortgage on the expiry of five years' period and, therefore, the limitation for redemption started after five years i.e., with effect from 10.2.1950 and the application for redemption filed on 11.4.1967 was well within limitation. As already noticed above, both the decisions relied upon by the lower Appellate Court are clearly distinguishable on facts. Hence, it is held that the lower Appellate Court went wrong in disturbing the well considered judgment and decree of the trial Court.