BHAGWAN SAHAI Vs. JAINARAIN

JUDGEMENT

(1.) The facts in this second appeal are that certain land was mortgaged by Sham Singh, the father of the defendant in favour of Charan Singh, the grandfather of the plaintiffs, for Rs. 400/- on the 10th of February, 1883. The mortgage was with possession and the mortgagee and his descendants remained in possession of the mortgaged land. Some time before 1946 the present defendant instituted a suit in the Court of the Sub-Judge for the redemption of the mortgaged land. This suit was dismissed on the 4th of March, 1946 on the ground that it was barred by time since the mortgage was more than sixty years old when the suit was instituted.

(2.) This decision was apparently not challenged in appeal but the defendant subsequently filed an application in the Court of the Special Collector under the Punjab Restitution of Mortgaged Lands Act and succeeded in obtaining an order on the 23rd of December, 1946 permitting him to redeem the land on payment of Rs. 46/9/-. The defendant thereafter obtained possession of the land in pursuance of this order.

(3.) The plaintiffs then filed the present suit at first claiming a declaration that the order of the Special Collector was not binding on them, but their claim was amended to one for possession after the defendant had raised the plea that a mere declaratory suit did not lie.