DALIP SINGH Vs. KALI RAM

JUDGEMENT

(1.) THE dispute is between real brothers. Dalip Singh Defendant -Appellant, who is admittedly given to excessive drinking, sold to Kali Ram Plaintiff -Respondent his 19 Kanals 12 Marias of agricultural land comprised in Khasra Nos. 57/23(3 -12), 57/24(8 -0) and 57/17(8 -0), vide two separate registered sale -deeds dated 14 -10 -1960 and 28 -4 -1964(sic) respectively. Remaining 11 Kanals 12 Marias of holding comprised in Khasra Nos. 57/18(7 -12) and 57/23 min (4 -0) was also sold by Dalip Singh aforesaid to another brother Prithi Singh, vide registered sale deed dated 14 -10 -1960. The two brothers, who had purchased the land, filed Civil Suit No. 496 on 24 -9 -1964 seeking declaration of their title to the purchased land and their entitlement to get the land mutated in their own names. Dalip Singh did not contest the suit. He did not appear there in spite of service and was, therefore, ordered to be proceeded against ex parte.

(2.) THE vendor in Dalip Singh had, however, after the date of the sale aforesaid, created a mortgage of his land covered by these three sale -deeds in favour of Hira and Darya, vide registered mortgage deed dated 19 -12 -1963. The two mortgagees resisted the claim of Kali Ram and Prithi Singh, vendees, Shri O. P. Dharwal, learned Sub Judge 3rd Class, Hissar, dismissed the suit on the grounds that a part of the sale consideration still remained to be paid and the possession of the land sold was still with the vendor and, therefore, the vendees had neither become full owners of the land sold to them nor could get the same mutated in their favour. The lands were thereafter got redeemed from the two mortgagees aforesaid.

(3.) IT has been urged by the learned Counsel for Defendant Appellant that the contest in Civil Suit No. 496 of 1964 decided on 13 -10 -1965 clearly suggests that there was no love between the brother, and Kali Ram Plaintiff -Respondent as also other brother of Dalip Singh named Prithi Singh were both trying to deprive Dalip Singh Defendant -Appellant of his entire holding because of his extravagant babits of excessive drinking. There was, therefore, according to the learned Counsel, no question of Dalip Singh Defendant Appellant giving his consent to the passing of the decree dated 20 -2 1975. The argument is wholly fallacious and entirely bereft of merit. In the first place, as has already been observed with reference to the record of the learned trial Court in the file of Civil Suit 496 decided on 13 -10 -1965, Dalip Singh Defendant -Appellant did not appear therein in spite of due service and was ordered to be proceeded against ex parte The suit was, therefore, not contested by Dalip Singh Defendant Appellant at all The two subsequent mortgagees from him, after the dates of alleged sales in favour of Plaintiff -Respondent who contested the suit, were duly satisfied and the agricultural land in suit was got redeemed from both of them before Dalip Singh Defendant -Appellant expressed his consent in the consent -decree passed in Civil Suit No 636 of 1975 on 20 -2 -1975 through Shri Gurmesh Bishnoi, Advocate, examined as D. W. 4 in Civil Suit No. 26 C filed on 11 -9 -1975 and decided on 6 -12 -1976.