DHANI RAM Vs. RAGHBIR SINGH

JUDGEMENT

(1.) This is defendants' appeal from the judgment and decree of the learned District Judge, Patiala, dated the 28th June, 1957, passing a decree in favour of the plaintiff to the effect that out of the property in dispute they are the owners in possession of 50 bighas and 15 biswas of land with kothi and garden (Khasra Nos. 2193/2109/467, 2197/468, 464/1, 453/1 and 2193/2109/467) and further that decree, dated the 1st March, 1955, obtained by the father of defendant No. 1 against defendant No. 2, father of the plaintiffs, is void, ineffectual and liable to cancellation as against the plaintiff's rights and that no part of the property in dispute is liable to be sold in execution of that decree.

(2.) In order to understand the true nature and scope of the controversy the facts, so far as relevant for our purpose, may here be stated. On 11th April, 1941, Jagjit Singh, father of the plaintiffs, mortgaged with possession 92 bighas and 4 biswas of land along with kothies kalan and khurd, a stable, garden, wells, trees standing thereon at the time and which may grow in future and with all existing and future internal and external rights in favour of Sheikh Mohammad Jan son of Chaudhri Pir Baksh for a sum of Rs. 11,000/-; interest was payable on the mortgage amount at the rate of rupee one per cent per month to be paid six-monthly. This mortgage, according to the recitals in the deed, was executed because money was required for paying off an earlier loan of 26th February 1940, incurred by the mortgagor from Sheikh Mohammad Ramzan, on which interest was payable at Rs. 1/8/- per cent per month and the earlier creditor was pressing for payment. On 16th April 1941, the mortgage-rights were sold by Sheikh Mohammad Jan to the appellant's father, Siri Ram, who was defendant No. 1 in the trial Court. On 5th June, 1946, the plaintiffs brought a declaratory suit challenging the mortgage on the ground that there was no necessity for the same. During the pendency of that litigation. His Highness the Maharaja of the erstwhile Patiala State was approached, and on 19th May, 1947, as per exhibit PW9/A, a letter was written by the Private Secretary to His Highness to the Prime Minister of His Highness's Government of Patiala, the contents of which are as follows -

(3.) On 14th June, 1947, the plaintiffs suit was decreed by the District Judge against Siri Ram and it was held that the alienation in favour of Sheikh Mohammad Jan and Siri Ram etc., would be ineffective qua the rights of the plaintiffs. This decree was passed on the basis of the order of His Highness when the case was still at the stage of issues and indeed, no issues were framed and a decree was passed without a regular trial. On 9th April, 1953, Siri Ram sued for recovery of mortgage money by sale. On 23rd March, 1953, a preliminary decree for the sale was passed against Jagjit Singh and on 1st March, 1955, final decree for sale was made. Appeal against this decree was dismissed as having abated, with the result that it became final.