ATMA RAM Vs. PARAS RAM

JUDGEMENT

(1.) The plaintiff-appellant had brought a suit for redemption of land, measuring 31 Bighas and 16 Bis-was, consisting of ten plots with Khasra Nos. 109/3, 128, 131/1 289/130, 292/132, . 133, 138, 143, 157 and 159 and two houses standing in Khasra No. 137 in village Sandoo, Tehsil Theog in the district of Mahasu. The Khewat and Khatauni numbers were stated in the plaint to be: 29/43-44. The allegation in the plaint was that this property was first mortgaged on 3-12-1942 to Bhagta alias Bhagat Ram, defendant No. 1, in lieu of Rs. 700/-and that Bhagta. was given actual possession of all the plots in dispute as the mortgage was usufructuary. But, later on, on 14-6-1954, an additional sum of Rs. 800/- was said to have been taken from Bhagta and his son Daulat Ram, defendant No. 2, and the usufructuary mortgage was alleged to have been converted into one to both the father and the son who, it was said, had realized far more than the amount due on the mortgage so that the property was liable to be redeemed after rendition of accounts as provided in Section 8 of the Himachal Pradesh Debt Reduction Act, 1953. It was also alleged by the plaintiff that the two mortgagees had given 8 Bighas and 1 Biswa land in Khewat Khatauni Nos. 29/43 Khasra Nos. 109/3, 128 and 131/1 to Paras Ram, defendant No. 3, who was their tcnant-atwill, as entered in the Jamabandi for the year 1958-59 so that defendant No. 3 was also a necessary party to the redemption suit and liable to be evicted by the same suit.

(2.) Bhagat Ram. defendant No. 1, denied any subsisting mortgage and pleaded that he was in possession of Khasra Nos. 292/130, 292/132, 133, 138, 143, 157 and 159 as a tenant. As regards the mortgage in 1954, in which Khasra Nos. 109/3, 128 and 287/137/1 in Chak Sandoo were also said to be included, Bhagat Ram only admitted that the mortgage was in favour of his son, Daulat Ram. defendant No. 2, and denied that he was himself the mortgagee. He alleged with regard to the three numbers claimed by defendant No. 3 that these were either tenancy plots of Paras Ram, defendant No. 3, or, in the alternative, plots to which Paras Ram had acquired rights by open and hostile possession. Daulat Ram, defendant No. 2, only admitted that the plaintiff had borrowed Rs. 1,500/- from him, but he denied that he ever came into possession of any land. He claimed to be entitled to repayment of his money with Interest to him. Paras Ram, defendant No. 3, did not admit the alleged mortgages or that the plots in his possession were ever part of the land included in any mortgage. He claimed to be the owner of the three plots by reason of an open and hostile possession as against every one since the time of his forefathers, but, in the alternative, he asserted that he was the tenant of the three plots to which his claim was confined. He pleaded that the plaintiff's suit was beyond time as against him. In his replications, the plaintiff denied that Paras Ram was ever the tenant of the plaintiff.

(3.) The trial Court had found that the whole of the land in dispute was actually mortgaged for Rs. 700/- on 3-12-1942 even though the mortgage deed was not registered. The plaintiff had only tenancy rights so that he could not execute a legally valid mortgage. The trial Court thought the entries in favour of Bhagta as a non-occupancy tenant, with the observation "Bila lagan bawaja tasuwar rahen beqabza", proved a transaction which was equivalent to a mortgage. Unfortunately, the trial Court did not try to correlate the Khatauni Khasra numbers shown in the mortgage deed dated 3-12-1942 (Ex. P-1), the admissibility of which in evidence is not questioned by the defendants, shows that the property mortgaged was a half share of the property consisting of 12 plots of land in Khewat No. 1, Khatauni No. 9 with a total area of 143 Bighas. It is difficult to understand how the trial Court came to the conclusion that all the plots for which the suit was filed were included in the property mortgaged of which the possession was said to have been given to Bhagta. The trial Court also appears to have accepted, in much too facile a fashion, that the whole property was mortgaged again to both the defendants 1 and 2 in 1954, although there was no fresh deed but only certain entries in revenue records purporting to evidence the subsequent mortgage. The trial Court decreed the suit against all the three defendants.