STATE OF HARYANA Vs. JAI SINGH

JUDGEMENT

(1.) This regular second appeal has been preferred against the judgment and decree dtd. 25/8/2001 passed by the Court of Additional District Judge, Panipat, vide which appeal preferred by the defendant- appellant against the judgment and decree dtd. 19/9/1996 vide which suit filed by the plaintiffs had been decreed, has been dismissed.

(2.) Case of plaintiffs is that plaintiffs and proforma defendants No.2 to 10 are owners in possession of the suit property detailed in para No.4 of the plaint. Plaintiffs No.1, 2 and defendants No.3 and 4 over half share and plaintiffs No.2 and 3 and defendants No.5 to 10 are owners to the extent of remaining half share. As per version of plaintiffs, Kishan Lal and Jeetu, sons of Mathura were owners in possession of the suit land being holders of Marusi rights under Sec. 5 of Punjab Tenancy Act, 1887. Though in the revenue record, Pana Shamlat Hinduwan is recorded as owner in the column of ownership yet actually these persons had become owners being Marusi tenants. The suit land owned by Kishan Lal and Jeetu was mortgaged with possession in favour of Amrit and Nanak verbally in equal shares for a sum of Rs.150.00 as apparent from Mutation No.1837 sanctioned on 17/6/1924. This mutation was entered in the revenue record by Halqa Patwari on 16/6/1921 and the actual cultivating possession of the suit property was delivered to the mortgagees. As such, relationship of mortgagers and mortgagees came into existence between Kishan Lal and Jeetu on the one hand and Amrit and Nanak on the other hand. Thereafter, Amrit expired and his share in the suit land was inherited by Duli Chand and Khem Chand and Mutation No.2402 was sanctioned in this regard on 4/12/1934. Said Duli Chand also expired and his share was inherited by Dharam Singh, Dharam Pal, Jai Pal and Jai Singh and Mutation No.2743 was sanctioned on 30/8/1940. Jai Pal also expired issueless and his share was inherited by Dharam Singh, Dharam Pal and Jai Singh. The share enjoyed by Nanak had also been inherited by plaintiffs and proforma defendants No.2 to 10. It is further alleged that mortgagers could not get the land redeemed within the prescribed period of limitation and mortgagees thus have acquired the right of ownership qua the suit land.

(3.) It is further alleged that Kishan Lal and Jeetu- mortgagers died issueless and after their death, State Government i.e. defendant No.1 has been recorded as heir of Kishan Lal and Jeetu by way of escheat and Mutation No.5443 has been sanctioned in favour of State Government on 18/11/1975. However, since the mortgagees had already become owners in possession of the suit property, therefore, the entries showing defendant No.1 as owner being heir of deceased Kishan Lal and Jeetu Lal are illegal, null and void and not binding upon their rights. Presently also, plaintiffs and proforma defendants are in actual cultivating possession of the suit property as owners and mutation sanctioned in favour of defendant No.1 is void ab initio. Now defendant No.1 is threatening to oust them and proforma defendants from the suit land and is also intending to alienate the same which necessitated the present suit.