SHER SINGH Vs. SURAT SINGH

JUDGEMENT

(1.) FOR a piece of land measuring 37 kanals 13 marlas, first the predecessor-in-interest of the plaintiffs and now the plaintiffs, who are the appellants before this Court, have been trying to get possession for the last more than 3 decades and it is unfortunate story that despite their best efforts to get the land redeemed, which was mortgaged for a sum of Rs. 1,000/- somewhere in 1969, they are still out of possession.

(2.) BRIEF facts giving rise to the present Regular Second Appeal need a necessary mention, before rival contentions of learned counsel representing the parties are noted and adjudicated upon in this regular second appeal, which has been filed by the appellants, who sought possession by way of redemption and even though succeeded in the matter before learned trial Court, some how failed before learned first Appellate Court resulting into dismissal of their suit, thus, constraining them to file present regular second appeal. The admitted facts of the case reveal that original owner of the land was one Wadhawa Singh, who had mortgaged the land to Inder Singh. Wadhawa Singh died and his estate devolved upon his daughter Smt. Harnamo. Inder Singh, original mortgagee, also died, resulting into succession of the mortgagee rights by Surat Singh and others, who were arrayed as defendants 1 to 7 in the original lis. Smt. Harnamo filed application for redemption of mortgage under the provisions of Redemption of Mortgages (Punjab) Act, 1913 and succeeded in the matter vide judgment passed on that behalf by the Assistant Collector Ist Grade, Patti, on 18.1.1966. During the pendency of the application aforesaid, however, Smt. Harnamo sold the land, subject matter of dispute, to Mahain Singh. At that time, Inder Singh was alive, who against the order of Assistant Collector Ist Grade allowing redemption of mortgage filed a civil suit seeking setting aside the order aforesaid and for declaration that Harnamo could not have redeemed the land, having sold it during the pendency of the application, as mentioned above. This suit, it is interesting to note, was decreed vide judgment and decree dated 14.7.1969. It may not be very important but it may, however, still be mentioned that whereas, the case of Smt. Harnamo was that the land was mortgaged for an amount of Rs. 339.50, case of Inder Singh was that mortgage amount was Rs. 1,000/-. Vendees of Smt. Harnamo, who, as mentioned above, were sold the land during the pendency of the application, filed application for redemption but the same was dismissed on technical ground that the application made by them was not in prescribed proforma under the rules. Constrained, they filed suit for redemption of mortgage on 29.12.1970. This suit, as mentioned above, was decreed by learned civil Court vide judgment and decree dated 12.5.1976, constraining original defendants to file appeal, with result already indicated above. Learned appellate Court, before whom the matter came up for decision, dismissed the suit by holding that no reference can be made to any document on the record to show that the land was mortgaged as per the particulars given in the plaint. Earlier, learned Additional District Judge referred to various mortgages made by Smt. Gangi widow of Wadhawa Singh, original owner. How all these mutations are relevant is not at all understandable inasmuch as, the Court was concerned only with the mortgage made by Wadhawa Singh in favour of Inder Singh and not the others. However, while observing that no document had been shown to the Court from where it could be made out that the particulars mentioned in the mortgage are correct, it was held that when terms and conditions of the mortgage could not be proved either by the producing original deed or by leading secondary evidence, the plaintiffs had to fail in their endeavour to get the land redeemed. It is pertinent to mention that judgment, Ex. P-7, which came into being on a suit filed by none other than the defendants, dated 14.7.1969, was brought to the notice of learned Additional District Judge to show admitted particulars of mortgage but on the basis of which, all that came to be observed was that the said judgment was beyond the pleadings and could not be looked into.

(3.) I have heard learned counsel representing the parties and with their assistance examined the records of the case. There appears to be considerable merit in the contentions raised by Mr. B.R. Mahajan, learned counsel representing the appellants, as noted above. When defendants 1 to 7 filed suit challenging the order passed by Assistant Collector Ist Grade, ordering redemption of the land for Rs. 339.50, they accepted the factum of their being mortgagees as also the mortgagor having got the land redeemed from whom the present appellants had purchased the land. In the suit, which is inter-partes, or between the defendants in the present suit and successor of Harnamo, it could not be held, as has, indeed, been held by learned Additional District Judge, that the particulars of the mortgage were lacking in any way. It is significant to mention that the only plea raised in support of the suit aforesaid was that Smt. Harnamo, having sold her land during the pendency of application filed by her for redemption of mortgage, could not possibly continue with the application. Insofar as factum of mortgage is concerned, the amount for which it was to be redeemed, was admitted, it is no doubt true that the defendants, while filing suit aforesaid, stated that amount of mortgage was Rs. 1,000/- even though it was the case of the mortgagor that the amount of mortgage was only Rs. 339.50, but during the currency of present suit, amount of mortgage to be Rs. 1,000/- came to be admitted.