SANDHA SINGH Vs. AMRIK SINGH

JUDGEMENT

(1.) This is plaintiffs appeal filed under S. 100 of the Code of Civil Procedure, 1908 challenging decree and judgment of reversal dated 12-6-1986 delivered by the lower appellate Court on the crucial issue as to whether the suit land was mortgaged by the predecessor-in-interest of defendant-respondents in favour of plaintiff- appellant on 21-1-1947 for an amount of Rs. 7400/- and whether the plaintiff-appellant has become owner of the suit land by efflux of time as the defendant-respondents have lost the right to redeem the mortgage. The aforementioned issue is fundamental to the question of law raised in the instant appeal which is as under :

(2.) Before answering this spinal question it would be appropriate to notice skeleton facts. Sandha Singh, plaintiff-appellant, has sought a declaration by filing a suit on 25-2-1982 being Civil Suit No. 217 of 1983 to the effect that he has become owner of the suit land because his predecessor-in-interest was the mortgagee of the land which was mortgaged by the predecessor-in-interest of the defendant-respondents. The case of the plaintiff-appellant as projected before the Courts below is that one Jarnail Singh, predecessor in interest of defendant-respondent was resident of Chak No. 75 Jannwala, District Lyallpur (now in Pakistan) and he was the owner of the land measuring 61 kanals 3 marlas. On 21-1-1947 he mortgaged the suit land through his attorney Ram Singh in favour of Sandha Singh plaintiff-appellant. On account of the partition of the country the entry of mortgage could not be incorporated in the revenue record and Sandha Singh, plaintiff-appellant was allotted the suit land in lieu of the land mortgaged by Jarnail Singh. It is the admitted position that after the death of Jarnail Singh in Pakistan, who had no child or widow his interest was inherited by his brother Surat Singh. Four years before the filing of the'Suit Surat Singh also died and was survived by his widow, defendant-respondent No. 1, his sons who are defendants respondents 2 to 7 and his daughters who are defendant-respondent Nos. 8 to 11. The land has not heen redeemed from mortgage till the filing of the suit as no mortgage money has ever been paid to the plaintiff-appellants. As a period of more than 30 years had passed the assertion by the plaintiff-appellant has been that the right of redemption has extinguished by efflux of time. The stand of the defendant-respondents in the reply has been that the land was never mortgaged in favour of the plaintiff-appellant nor any mortgage deed was ever executed. The mortgage deed dated 21-1-1947 is stated to be the result of fraud and misrepresentation. The allegation further is that the. land has not been allotted to the plaintiff-appellant in lieu of the mortgaged land by any competent authority and possession of the plaintiff-appellant over the suit land has also been disputed. It is claimed that the dispute has been finally decided by the Chief Settlement Commissioner on 31-7-1980 under the Displaced Persons (Compensation and Rehabilitation) Act, 1954 and the Civil Court has no jurisdiction.

(3.) On the basis of the pleadings of the parties various issues were carved out and the trial Court gave categorical finding holding that the plaintiff-appellant has been in possession of the suit land. It has further been held that the Chief Settlement Commissioner had although earlier decided the dispute in favour of the defendant-respondent but that view was reversed in favour of the plaintiff-appellant because the judgment of the Chief Settlement Commissioner was set aside by the Financial Commissioner vide Ex. PX. It is pertinent to mention that the Financial Commissioner has upheld the mortgage deed vide his judgment Ex. PX,