BANARASI DASS Vs. BACHNA RAM

JUDGEMENT

(1.) INSTANT regular second appeal has been preferred by the appellant -defendant against the judgment and decree dated 03.09.1985 passed by learned Additional Senior Sub Judge, Patiala, whereby suit filed by the respondent -plaintiff for declaration and permanent injunction has been decreed, as well as, against the judgment and decree dated 10.12.1987 passed by learned Additional District Judge, Patiala, whereby appeal preferred by the appellant/defendant has been dismissed. For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance.

(2.) THE detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are to the effect that plaintiff mortgagee filed a suit for declaration against the defendant Banarasi Dass on the ground that Santu son of Hira Singh (father of the defendant) was owner of the agricultural land comprised in khasra Nos. 1645(8 -5), 1644 (9 -6) and 1641(9 -10) situated in Village Masingan, Tehsil and District Patiala and he had mortgaged his land comprised in khasra no. 1641(9 -10) with possession for a consideration of Rs. 978/ - with Devi Dayal and Shankar Lal sons of Ghanaya Lal on 26.11.1991 BK. Mutation was sanctioned in favour of the mortgagees in this regard on 24th Jeth, 1992 BK. Devi Dayal died in the year 1951 and was survived by his widow Man Devi. Shankar Lal and Man Devi sold mortgagee rights in the land comprised in khasra no. 1641 in favour of plaintiff for a sum of Rs. 970/ -. After the death of Santu, land bearing khasra nos. 1644 and 1645 was mortgaged with possession by Smt. Mansi widow of Santu on behalf of defendant Banarasi Dass and Ram Piara for a sum of Rs. 325/ - with Sawan Ram and Siri Ram on 28.11.1995. Sawan Ram and Siri Ram sold their mortgagee rights regarding the land comprised in khasra nos. 1644 and 1645 in favour of the plaintiff for a sum of Rs. 325/ -. During the consolidation in the village, the land in dispute was allotted to the plaintiff in lieu of land comprised in khasra nos. 1641, 1644 and 1645. Thus, the plaintiff is in possession of the land in dispute since he purchased the mortgagee right. After the death of Santu, the land in dispute fell to the share of Bararasi Dass defendant. Neither Santu nor Banarasi Dass - defendant paid the mortgage amount to the plaintiff nor to their previous mortgagees. Thus, the land in dispute was not got redeemed within the prescribed period. It was pleaded that defendant moved an application for redemption before the Collector, Patiala, on 21.05.1977, which was accepted on 05.12.1980. The said order is illegal, null and void and without jurisdiction as the application was barred by limitation. It was further pleaded that the defendant is trying to execute the order dated 05.12.1980 and dispossess the plaintiff. Hence, suit for declaration and permanent injunction was filed.

(3.) UPON notice, defendant appeared and contested the suit on the ground that it is not proved that the land in dispute was mortgaged with the plaintiff. It has been averred that Smt. Mansi Devi was not authorised and competent to mortgage the land to any body on her own behalf and on behalf of Banarasi Dass and Ram Piara. She never obtained sanction from the competent authority under Section 8 of the Hindu Minority and Guardianship Act. It has been further averred that plaintiff has no right, title or concern with the suit land. The defendant is owner and in possession of the suit land. It has further been averred that the order passed by the Collector is perfectly legal, valid and binding on the parties. On the basis of the pleadings of the parties, the Court of first instance framed the following issues: -