MEHAN AND OTHERS Vs. KISHI AND OTHERS

JUDGEMENT

(1.) THE circumstances in which this Regular Second Appeal has been filed against the decree of the Court of Shri C. S. Tiwana, Additional District Judge. Ambala, dated June 10, 1966, affirming the decree of the Court of Shri Om Parkash Singla. Subordinate Judge Ist Class, Ambala, dated May 31 1965, for symbolic possession of the land in suit are these. Molu left behind him a son named Amar Singh and a daughter named Kishni Amar Singh owned the land in dispute which had been found by the trial Court to be non ancestral. The said finding was not seriously questioned before the first appellate Court and las not at all been assailed before us. Kishni was born in 1907, vide birth entry Exhibit P. 4, and she performed Karewa marriage with Baru Singh P.W. 9 on July 1, 1929, vide entry of Karewa Exhibit P.W. 12/1.A. Amar Singh left his village and was admittedly not heard of for more then seven years by those who would in normal course have heard of him. The possession of the land m dispute during the lifetime of Amar Singh was of Mehan and Jai Ram defendants Nos. 1 and 2, who are the appellants before us. They were in possession as mortgagees and continued to remain in possession of the land in dispute after the disappearance of Amar Singh till the institution of the suit from which this appeal has arisen, and even thereafter as mortgagees. Mehan and Jai Ram (hereinafter referred to as the appellants) are the third degree collaterals of Amar Singh. Sarup alias Sarupa and Siri Ram defendants Nos 3 and 4, who are respondents Nos. 2 and 3 in this appeal are also third degree collaterals of Amar Singh.

(2.) ON August 2, 1963, Kishni plaintiff -respondent filed a suit against appellants as defendants Nos. 1 and 2 and against Sarupa and Siri Ram as defendants Nos. 3 and 4 for possession of the land in suit as well as of a house and one -third of a Bara. The suit in respect of the house and one -third of the Bara having been dismissed by both the Courts below, we are no more concerned with that part of the claim. The land in suit measures 42 Kanals and 3 Marias, and is situated within the revenue estate of Naggal Hadbast No. 89, tahsil and district Ambala. The basis of the suit was that Amar Singh had not been heard of by the plaintiff who was his real sister for more than seven years though she would have normally heard of him if he had been alive. On that basis it was alleged that Amar Singh was dead and Kishni plaintiff was entitled to his estate as his nearest heir, Amar Singh having died without leaving behind any wife or issue. It was stated that the appellants had refused to deliver possession to the plaintiff, on July 20, 1963, and therefore, the cause of action for the suit arose on that day. It was not disclosed in the plaint that the appellants were in possession of the land as mortgagees from Amar Singh. The suit was contested by the appellants. In their written statement, dated August 30, 1963, it was stated "that Amar Singh disappeared from the village more than twenty years ago and thereafter did not reappear in the village nor was found anywhere else" and that the plaintiff had kept his disappearance as a guarded secret and had not given the approximate date of disappearance of Amar Singh nor the date of his death in the plaint. It was denied that the plaintiff was the nearest heir of Amar Singh or that she was in any manner related to the deceased. It was claimed that the appellants were the third degree collaterals of the deceased and that the appellants being Jat agriculturists were governed by custom in matters of alienation and succession, and, therefore, the property in dispute which was alleged to be ancestral qua the appellants and Amar Singh was to be inherited by the appellants along with other collaterals as the appellants were the preferential heirs and the plaintiff had no justification to make any claim to the land. A further averment was made in paragraph 2 of the written statement to the effect that "the plaintiff had during the mutation proceedings given a statement on oath relating to the period of disappearance of Amar Singh" and that she was now estopped from changing her front or denying the fact of the period of disappearance of Amar Singh which had taken place more than twenty years prior to the institution of the suit. In the additional pleas, the appellants stated that the entire land in dispute was under mortgage with them for a sum of about Rs. 3,200/ -. It is significant that they did not claim adverse possession of the land in dispute but claimed to be in possession thereof only as mortgagees. On that basis they pleaded that assuming, but not conceding that the plaintiff was proved to be the sister of Amar Singh, and if it was also to be found that she was the preferential heir, she could only file a suit for redemption of the mortgaged property and not the suit for possession simplicities, as she could only step into the shoes of Amar Singh in that event. It was denied that the suit was within time as Amar Singh was stated to have disappeared about 22 -23 years prior to the institution of the suit, and had never been heard of by the appellants who were his third degree collaterals. The appellants also claimed to have made improvements on the lands at a heavy cost of about Rs. 20,000/ - by planting a garden therein. From the pleadings of the parties, the trial Court framed the following issues :

(3.) IN their first appeal filed by the appellants, the findings of the trial Court on issues Nos. 1 and 2 alone were assailed and the learned Addl. District Judge, therefore, observed that only the points covered by those two issues arose for determination in the appeal. The findings of the trial Court on issues Nos. 3 to 8 were not questioned. Having upheld the decision of the trial Court on issues Nos. 1 and 2 also, the learned Additional District Judge dismissed the appeal of the contesting defendants with casts on June 19. 1966. Not satisfied with the judgment and decree of the first appellate Court, the contesting defendants have come up in this Regular Second Appeal.