CHANAN SINGH Vs. GIRDHARI LAL

JUDGEMENT

(1.) THIS Regular Second Appeal has been filed by the defendant- appellants against the judgment and decree dated 8.9.1983 passed by the Additional District Judge, Hoshiarpur, whereby the appeal filed by the plaintiffs was accepted, the judgment and decree dated 13.2.1982 passed by the Trial Court were set aside and the suit of the plaintiffs was decreed and a decree for possession of the land in dispute was passed in favour of the plaintiffs and against the defendants.

(2.) THE facts in brief are that the plaintiffs had filed a suit for possession of the agricultural land detailed in the heading of the plaint with the allegations that on 17.1.1938, Smt. Durgi widow of Nand Lal had 1/2 share in the land detailed in para No. 1 of the plaint and that on 17.1.1938 Smt. Durgi, the holder and occupancy tenant of the land detailed in para No. 1 of the plaint had mortgaged the same along with possession with plaintiff No. 1 Daya Ram and Behari Lal predecessors-in-interest of plaintiff Nos. 2 to 7 for a sum of Rs. 275/- and had put plaintiff No. 1 Daya Ram and Behari Lal aforesaid in possession thereof and since then they were in possession of the said land. It was alleged that the said mortgage deed was duly executed and got registered by Smt. Durgi in favour of plaintiff No. 1 and Bihari Lal. It was alleged that on the partition of India in 1947, the parties migrated to India and the land detailed in the heading of the plaint was allotted in the name of Smt. Durgi in lieu of the land left by her in Pakistan and detailed in para No. 1 of the plaint. It was alleged that plaintiff No. 1 and Behari Lal continued in possession of the land detailed in para No. 1 of the plaint till they remained in Pakistan and thereafter, after allotment of the land in lieu of the said land, they occupied the allotted land and continued to remain in its possession. It was alleged that during consolidation proceedings, the land in dispute was allotted in the name of Smt. Durgi by way of allotment in lieu of the land, which was allotted to her in lieu of the land left by her in Pakistan. It was alleged that Behari Lal mortgagee died and was succeeded by plaintiff Nos. 2 to 7 and in this manner, all the plaintiffs became mortgagees of the land, which was allotted to Smt. Durgi and continued in possession thereof and their names were also entered in the column of possession in the consolidation record. It was alleged that since the mortgage was created by Smt. Durgi Devi on 17.1.1938 on the expiry of the period after 17.1.1938, the rights of Smt. Durgi (mortgagor) to redeem the said land stood lost and extinguished and the plaintiffs' rights got matured into those of ownership as Durgi did not exercise her right of redemption of the suit land within time and as such since 17.1.1970, the plaintiffs had become the owners of the suit land. It was alleged that defendants and their father Munsha Singh entered into possession over a part of the said land as tenants prior to 17.1.1970 but the plaintiffs' rights remained un-encumbered and in fact the remaining land was in possession of the plaintiffs through their tenants. It was alleged that defendant No. 1 and his father Munsha Singh had claimed that they had purchased the suit land from Smt. Durgi on 25.5.1966 and thus had acquired the right of the mortgagor of Smt. Durgi in the suit land and in this way the defendants had stepped into the footsteps of Smt. Durgi mortgagor and were the successors-in-interest of Smt. Durgi, even though the plaintiffs did not admit the same. It was alleged that on 26.5.1971, the defendants filed an application under Section 5 of the Punjab Redemption of Land Act in the Court of Collector against the plaintiffs for redemption of the land measuring 17 Kanals 8 Marlas on the ground that only 17 Kanals 8 Marlas of the land was under mortgage with the plaintiffs, even though this assertion of the defendants was not correct and was false, inasmuch as, the entire suit land stood mortgaged with the plaintiffs till 16.1.1970 and since 17.1.1970, the plaintiffs had become the absolute owners of the suit land. It was alleged that the said application of the defendants in respect of land measuring 17 Kanals 8 Marlas was dismissed by the Collector vide order dated 12.2.1974 and thereafter, the defendants filed a Civil Suit on 26.7.1974 under Section 24 of the Punjab Land Redemption Act, 1913 and the said suit of the defendants was also dismissed on 13.1.1976 and the appeal was dismissed on 21.12.1978 by the Additional District Judge. It was alleged that the plaintiffs being the owners of the suit land were entitled to get back and put into its possession from the defendants, who had no right in the suit land, inasmuch as, the rights of Durgi mortgagor stood extinct and lost by operation of law of limitation. It was accordingly prayed that a decree for possession of land measuring 49 Kanals 11 Marlas be passed in favour of the plaintiffs and against the defendants.

(3.) REPLICATION was filed. Various issues were framed. Both sides led evidence. After hearing both sides and perusing the record, the learned Trial Court dismissed the suit of the plaintiffs holding that the suit was time barred and that the plaintiffs had failed to show that the land in dispute was allotted in lieu of the land, which was subject-matter of the mortgage deed dated 17.1.1938. However, the appeal filed by the plaintiffs was accepted by the learned Additional District Judge, the judgment and decree passed by the Trial Court were set aside and the suit for possession filed by the plaintiffs was decreed by the learned Additional District Judge in respect of the land measuring 17 Kanals 8 Marlas. It was found that the suit was within limitation and with regard to identity, it was found that the learned counsel appearing for the plaintiffs had conceded that there was no dispute regarding the identity of the land. Resultantly, the appeal was allowed and decree for possession was passed in favour of the plaintiffs and against the defendants in respect of the land measuring 17 Kanals 8 Marlas. Aggrieved against this judgment and decree of the learned Additional District Judge, the defendants filed the present appeal in this Court.