AJAIB SINGH Vs. VED PRAKASH

JUDGEMENT

(1.) The present regular second appeal has been preferred by the plaintiff-appellants challenging the judgment and decree dtd. 30/4/2015 passed by the Trial Court and the judgment and decree dtd. 13/7/2017 passed by the First Appellate Court dismissing their suit.

(2.) The brief facts relevant to the present case are that the plaintiffappellants are the successors of the mortgagee while defendant-respondent Nos.1 to 3 are the successors of the mortgagor. The plaintiff-appellants filed a civil suit for declaration to the effect that order dtd. 1/8/2008 passed by the Court of Collector, Moga in Case No.8-C dtd. 16/11/2007 titled Ved Parkash etc. Vs. Kartar Singh is illegal, unjust and wrong and is liable to be set aside and for further declaration that the plaintiff-appellants have become owners in possession of 24/77 share out of land bearing Khasra Nos.81//19/2(7-16), 20/1(2-0), 21(8-0), 22(8-0), 23/1(7-5), 24/1(0-7) situated in the estate of village Khukhrana, Tehsil and District Moga as entered in the jamabandi for the year 2005-06 with consequential relief of injunction restraining the defendant-respondents from ejecting the plaintiffappellants forcibly, illegally and otherwise than in due course of law from the land bearing Khasra Nos.81//18/2(1-16), 81//19/2(7-16), 20/1(2-0), 21(8- 0), 22(8- 0), 23/1(7-5), 24/1(0-7) situated in the estate of village Khukhrana Tehsil and District Moga as entered in the jamabandi for the year 2005-06. According to the plaintiff-appellants, one Matto son of Jawahar was owner of the land measuring 51 kanals 6 marlas and he mortgaged 16 kanals of land with possession in favour of Narain Singh son of Roor Singh vide mortgage deed dtd. 15/8/1930 for a sum of Rs.380.00 and mutation no.1055 was sanctioned in favour of Narain Singh mortgagee. The above said usufructurary mortgage could not be redeemed by the mortgagor within the time period fixed for redemption by the parties. The said Matto died and his estate developed upon Kirpa Ram son of Sewa Singh to the extent of 1?2 share, Lekh Ram, Bhagat Ram, Faquir Chand sons of Munshi Ram to the extent of 12 share but the suit land continued to be under mortgage with Narain Singh. Narain Singh sold his mortgagee right in favour of Kartar Singh son of Kishan Singh, predecessor-in-interest of the plaintiff-appellants for an amount of Rs.380.00 as per mutation no.1410. Kirpa Ram was succeeded by Bhagwanti etc. and after consolidation in the year 1955-56 Bhagwanti etc. were recorded as mortgagors and Kartar Singh son of Kishan Singh as mortgagee in possession. This was reflected in the revenue record. The defendant-respondent Nos.1 to 3 (the successors-in-interest of the original mortgagor) moved an application no.8-C dtd. 16/11/2007 in the Court of SDM, Moga, exercising the powers of Collector, Moga, for redeeming the suit land who passed an order dtd. 1/8/2008 redeeming the suit land. As per the plaintiff-appellants the said redemption order was illegal, unjust and wrong and was liable to be set aside as the mortgage dtd. 15/8/1930 could not be redeemed as a period of more than 30 years had elapsed at the time of filing of the said application before the SDM as well as passing of order dtd. 1/8/2008. Hence, the present suit. The defendant-respondent Nos.1 to 3 contested the suit and filed written statement raising preliminary objections. On merits it was averred that no time limit was fixed for redemption and it could be redeemed at any time as per the terms and conditions mentioned in the mortgage deed. The order of the SDM dtd. 1/8/2008 had become final and no appeal had been filed against the said order and the same was legal and valid and binding upon the parties. Replication was filed controverting the pleas raised in the written statement and reiterating those taken in the plaint.

(3.) On the basis of the pleadings of the parties the following issues were framed by the Trial Court :