KISHNI Vs. MEHMAN SINGH RATI RAM JAT

JUDGEMENT

(1.) WHILE admitting this appeal on 11-5-1950 Har-nam Singh J. noted that, according to the learned counsel for the appellant, Khushia v. Gur-ditta, 1949 Pun lr 364, required examination and if so ordered by the Chief Justice, the case may be placed before a Division, Bench. It is in these circumstances that this appeal, which should in the ordinary course have been heard by a learned Single Judge, has been placed for disposal before a Division Bench.

(2.) THE relevant facts are that by mortgage deeds dated 9-6-1879 and 10-6-1880 the land in suit was mortgaged with possession by the predecessors-in-interest of the defendant Mst Kishni (the present appellant) in favour of one Nanak. Nanak's rights passed to one Baldev and in 1920 the minor sons of Baldev transferred their rights to the plaintiff respondent Mehaman Singh. On 29-4-1947 the defendant made an application under Section 4 of the Punjab Restitution of Mortgage Lands act, 1938, for redemption and the collector passed an order on 28-5-1948 directing that the mortgage be extinguished and that the mortgagor be put in possession of the mortgaged land. An appeal against this order was dismissed by the Commissioner on 8-4-1949. The present suit had been filed by Mehman Singh mortgagee in December 1948 for a declaration that the plaintiff was the owner of the land in suit and for an injunction that the plaintiff be prevented from interfering with his possession; the plaintiff's allegations are that the defendant had failed to redeem the mortgages within the period of 60 years and that the mortgagor's rights had become extinguished with the result that there was no subsisting mortgage on the date of the application filed by the mortgagor under the Punjab Restitution of Mortgaged Lands Act, 1938 and that the order of the Collector was ultra vires, null and void.

(3.) THE defendant admitted the mortgages but ed that as she had entered into possession of the land in suit before the institution of the present suit, the same was not competent; it was further pleaded that the mortgages were subsisting mortgages to which the Punjab Restitution of Mortgaged Lands Act applied and that the period of 60 years was extended by acknowledgments made by the mortgagees. The jurisdiction of the trial Court was also challenged. On these pleadings the following issues were framed :