RAJBIR Vs. SUSHILA AND ORS.

JUDGEMENT

(1.) The appellant -plaintiff is in the Regular Second Appeal against the judgment and decree of both the Courts below whereby a suit for declaration with consequential relief of possession has been dismissed. The case set up by the plaintiff was that great grand father Ami Lal was a mortgagee with possession of land measuring 23 bighas 09 biswas and the mortgagors were none else but. Smt. Dano and Dhapo sisters of Ami Lal. The aforementioned mortgage was affected on 23.05.1922 for a consideration of Rs. 2,000/ -. After the death of Smt. Dhapo, her half share was inherited by Smt. Dano. Ami Lal died on 20.05.1925 and his mortgagee rights were inherited by his three sons namely Tek Chand, Dharma and Jugti. After the death of Dharma, his share i.e. 1/3rd share got inherited by Chhattar Singh, defendant No. 7 who is none else but father of the appellant -plaintiff. After the consolidation in the year 1954 -1955, the present killa numbers as described in para 3(a) of the suit were allotted.

(2.) Chhattar Singh filed a suit against Dano for foreclosure and the same was decreed by judgment and decree dated 18.08.1970 and therefore Chhattar Singh had become exclusive owner of the property to the extent of 1/3rd share which he derived from Dharma. Thus, the mortgagee rights at the hands of Chhattar Singh was ancestral in nature. Chhattar Singh in collusion with the defendant No. 1 to 6 suffered judgment and decree dated 19.04.1986 in their favour as they were born from the wedlock of Chhattar Singh and Smt. Giano. The Courts below have erroneously declined the right on the ground that it is the Chhattar Singh who had become exclusive owner in the year 1970 when the decree was passed in his favour and therefore the property at his hands would not be ancestral in nature, thus, prays that the following question of law arise for determination by this Court: -

(3.) Mr. Gorakh Nath, learned counsel appearing on behalf of the respondent Nos. 1 to 7 submits that the concurrent findings of fact cannot be interfered under Sec. 100 of the Code of Civil Procedure, much less, no substantial question of law has been framed or even arise for determination. Since, Chhattar Singh acquired the ownership of the property for the first time in the year 1970. The nature and character of the property cannot be ancestral but it would be deemed to be a self acquired.