KUNDAN SINGH Vs. FAUJA SINGH

JUDGEMENT

(1.) This is a Second Appeal by the plaintiffs against judgment and decree of the Additional District Judge, Amritsar, dated August 5, 1968, reversing the judgment of the trial Court, whereby suit of the plaintiffs had been decreed.

(2.) Briefly, the facts are that Buhan Singh and Wadhawa Singh, were the owners of the property in dispute. Wadhawa Singh, it is alleged, was not heard of since the year 1900, and, therefore, he was presumed to be dead prior to 19071908. It is averred that consequently Bukan Singh became its sole owner thereafter. At that time the property stood mortgaged with Kala Singh son of Kharak Singh for an amount of Rs. 2,698/-. Bukan Singh sold it in favour of Hakam Singh by virtue of a registered sale deed dated February 24, 1912, for an amount of Rs. 2,500/-, and left an amount of Rs. 1,800/- with the vendee for payment to the mortgagee. It is further averred that Hakam Singh after paying the amount of Rs. 2,698/- to the mortgagee on May 10, 1912, got the land redeemed and obtained possession thereof. Hakam Singh died about 30 years back, leaving two sons, Mangal Singh and Harnam Singh plaintiff. Later, Mangal Singh also died issueless and wifeless, leaving a will regarding the property in favour of Kundan Singh, Dalip Singh and Massa Singh plaintiff Nos. 1 to 3. On the basis of the will, mutation regarding the share of Mangal Singh was sanctioned in favour of plaintiff Nos. 1 to 3 on April 22, 1964. It is alleged that thus, plaintiff Nos l to 4 became owners of the property and came in its possession. It is further averred that the defendants were threatening the plaintiffs to dispossess them forcibly which they could not do. They Consequently, filed a suit for declaration to the effect that they were owners in possession of the property previously owned by Wadhawa Singh, in the alternative that the defendants be restrained from interfering in the plaintiffs' possession except on payment of Rs. 1,349/-, the share of mortgage amount due from Wadhawa Singh.

(3.) The suit of the plaintiffs was resisted by the defendants, who admitted that Wadhawa Singh was a co-sharer in the land. They pleaded that they being the sister's son of Kishen Singh, father of Bukan Singh and Wadhawa Singh, were entitled to the property after the death of Wadhawa Singh. They, however, did not admit that any mortgage existed in favour of Kala Singh and that the same had been redeemed by the plaintiffs. On the pleadings of the parties, the following issues were framed-