BANTA RAMSON Vs. CHUHRU

JUDGEMENT

(1.) This Regular Second Appeal has been filed in this Court by the LRs of Banta Ram plaintiff against the judgment and decree dated 24.7.1979 passed by the District Judge, Roopnagar vide which the appeal filed by Bas-ant Singh alias Basant Ram, defendant had been accepted, the judgment and decree passed by the Trial Court were set aside and the suit of the plaintiff was dismissed.

(2.) Banta Ram plaintiff had filed a suit for possession and for recovery of Rs. 500/-as earnest money against Chuhru as defendant No. 1 and Basant Ram son of Chuhru as defendant No. 2 in respect of land measuring 4 Kanal being the eastern portion of the land measuring 10 Kanal 8 marla detailed in the plaint, alleging therein that the said land was owned and possessed by Chuhru defendant and he mortgaged the same with possession with the plaintiff for Rs. 1500/- vide mortgage deed dated 10.6.1971 and that the defendants, who are father and son had conspired to deprive the plaintiff of his mortgagee rights in the suit land and that Basant Ram defendant took forcible possession of the said land about three years back and started cultivating it on the pretext that Chuhru defendant had gifted the same to him. It was alleged by the plaintiff that the alleged gift deed was illegal and ineffective and did not confer any right of possession on the defendants unless the land was redeemed by the mortgager on payment of the mortgaged money, accordingly, the decree for possession and also for recovery of mesne profits was prayed.

(3.) The suit was contested by Chuhru defendant, alleging therein that he was the owner of the suit land by virtue of gift deed dated 10.6.1971 and that the plaintiff was estopped by his act and conduct from challenging the gift deed. It was alleged that actual possession of the suit land was delivered to defendant No. 2 at the instance of the plaintiff who had procured the witnesses for the execution of the said gift deed. It was alleged that the mortgage deed in question was in fact, a fictitious and forged document and was never executed by Chuhru defendant and the same was without consideration and had no existence in the eye of law. It was alleged that in fact, the suit land was not subject to any mortgage and as such the question of redemption did not arise. It was further alleged that even otherwise, after executing the gift deed Chuhru defendant could not have mortgaged the suit land to the plaintiff.