MAHARAJ MAL Vs. JAGDISH RAM

JUDGEMENT

(1.) The first plaintiff appeals against the concurrent decree of the courts below dismissing the suit filed by plaintiffs Nos. 1 and 2 for recovery of the possession of the suit property on the strength of title or in the alternative on redemption of the mortgage dated 19 -4 -1932.

(2.) The second plaintiffs father Parma Datt mortgaged with possession 21 kanals and 19 marlas of land comprised in khata No. 977/408/137 and 66/132 to 137 in favour of one Ajudia Dass, for a consideration of Rs. 1,206. The 21 kanals 19 marlas of land represented his 1/4th share in a larger extent of 90 kanals 17 marlas. Ex. P -5 dated 26 -6 -1932 shows mutation sanctioned in favour of the mortgagee.

(3.) While the mortgagee was thus in possession, the second plaintiff as legal heir of Parma Datt sold 10 kanals out of the mortgaged land to one Ram Rakha Sood for a consideration of Rs. 2,00). The consideration was constituted of Rs. J,206 reserved with the vendee for redemption of the mortgage and a sum of Rs. 794 paid in case. The mortgagee Ajudia Dass thereupon filed Civil Suit No. 316/55 in the court of the Senior Subordinate Judge at Dharamsala for pre -emption That suit ended in a compromise. Ex. P -6 is the judgment and Ex. D -l is the decree dated 27 -4 -1956, embodying the terms of the compromise. The mortgagee Ajudhia Dass was to pay Rs. 794 to Ram Rakha Sood and appropriate Rs. 1,206 to himself in discharge of the mortgage. Ex. PW I/A dated 27 -12 -1957 is said to be the receipt issued by the mortgagee Ajudhia Dass evidencing receipt of Rs, I.,206 in discharge of the mortgage debt. The second plaintiff got -mutation attested to show the redemption of the mortgage, Ajudhia Dass died. His son Salig Ram appealed to the Collector against the mutation showing the redemption of the mortgage The Collector at the first instance by Ex D -4 dated 23 -1 -1961 remanded the case to the Assistant Collector for fresh disposal, after finding that the mutation was bad for want of notice to Salig Ram. The mutation proceedings ended in Ex P.4 order of the Collector dated 18 -12 -1962 passed in appeal against the revised order of the Assistant Collector. As par Ex. P -4, the Collector set aside the mutation thereby holding that there was no redemption of the mortgage. The receipt Ex. PW -l/A was held inadmissible in evidence for want of registration. The second plaintiff had vide Ex, PW -5/1 dated 28 -8 -1969 sold 8 kanals of the mortgaged land outside the land covered by the sale deed Ex PW -2/A to the first plaintiff. The present suit was filed on 26 -7 -1970 for recovery of the land excluding the extent sold as per Ex. PW -2/A on the strength of the plaintiffs title. There is an alternative prayer for recovery on redemption of the mortgage dated 19 -4 -1932.