SHETU RAM Vs. ROOP LAL

JUDGEMENT

(1.) Petitioner (hereinafter re-ferred to as "the plaintiff' for convenience sake) instituted a suit in the Court of Sub-Judge 1st Class, Ani for declaration and consequential relief. According to the plaintiff, one Shri Shehaji son of Diloo, resident of village Chalohan was owner in possession of land measuring 10-11 bighas contained in Khata/Khatauni No.507 min/653, Khasra Nos.6003, 6026 and 6028 as per jamabandi for the year 1956-57 of Phati Manjhadesh, Kothi Naraingarh, Tehsil Ani, District Kullu. Shri Shehaji vide mutation No.955, dated 17.8.1958 mortgaged this land with possession in favour of his son Shri Thali and the possession of the same was also delivered to Shri Thali. After the death of Shri Shehaji, his estate was inherited by his sons Balu, Thali and Lachhi to the extent of 3/4th share and Smt. Brikmu daughter of Shri Shehaji to the extent of l/4th share vide mutation No.1692. Out of Khasra No. 6003, measuring 4-8-0 bighas, the land measuring 1-6-0 bighas was acquired in Ani-Chovai road and the remaining land measuring 3-2-0 bighas was assigned Khasra No.8194/6003. Vide mutation No.3557 of partition, the land measuring 3-19-0 bighas contained in Khasra No.6026 had fallen into the share of Shri Thali and land measuring 3-2-0 bighas contained in Khasra No.8194/6003 had fallen into the share of Shri Balu and Shri Lachhi son of Shri Shehaji, whereas land measuring 2-4-0 bighas contained in Khasra No.6028 had fallen into the share of Smt. Brikmu. After the death of Shri Thali, his estate including the mortgage rights in the suit land was inherited by the plaintiff being son. He was in possession of the suit land as mortgagee since 17.8.1958. Since the respondents/ defendants (hereinafter referred to as "the defendants" for convenience sake) or their predecessor in interest have not redeemed the mortgage, the right of redemption of the mortgage, which was available within the period of 30 years from the date of creating the mortgage has been foreclosed. In these circumstances, the plaintiffs have acquired title thereon and have already become absolute owner of the suit land and defendants have got no right, title or interest over the suit land. The revenue entries showing the defendants still as owners of the suit land are not correct and as such, the plaintiffs are not bound by the same. The defendants have been requested to admit the claim of the plaintiffs and to get the revenue entries changed. The plaintiff has prayed for the following reliefs:-"It is, therefore, prayed that it may be declared that the plaintiffs have been in possession of the suit land since 17.8.1958, as mortgagees and as such on account of the failure of the defendants or their predecessor in interest to pay the mortgage debt, to redeem the mortgage and to get the possession of the suit land within the period of 30 years from the date of creating the mortgage and as such the right of redemption of the mortgage has been foreclosed and consequently, the plaintiffs have become owners in possession of the suit land and the defendants have extinguished all their rights, title, interest over the suit land and have got no right over the suit land and as such the plaintiffs are not bound by the wrong revenue entries showing the defendants as owners of the suit land and thus the plaintiffs are entitled to be recorded as owners in possession of the suit land, with consequential relief of injunction, restraining the defendants themselves and through their agents and servants from claiming any right, title or interest over the suit land and from interfering in the ownership and possession of the plaintiffs and from dispossessing the ousting the plaintiffs from the suit land and a decree to this effect together with costs of the suit may be passed in favour of the plaintiffs and against the defendants. Any other relief to which the plaintiffs may be found entitle, the same may also be awarded in favour of the plaintiffs and against the defendants in the interest of justice."

(2.) Written statement was filed by the defendants, refuting the claim of the plaintiff.

(3.) The learned Civil Judge decreed the suit on 16.12.2003. An appeal was preferred by the defendants bearing Civil Appeal No.5 of 2004. An application under Order 6, Rule 17 of the Code of Civil Procedure was filed by the defendants. Reply was filed by the plaintiff to the same. The learned District Judge vide judgment dated 13.1.2005 allowed the application for amendment of written statement and remanded the suit to the learned Civil Judge, Junior Division by setting aside the judgment and decree of the learned trial Court. The plaintiff preferred F.A.O. No.39 of 2005 against order dated 13.1.2005 passed by the learned District Judge. This Court confirmed the said order whereby application under Order 6, Rule 17 of the Code of Civil Procedure was allowed. However, this Comt held that whole-sale remand was not desir able. The Court had ordered that the replication was required to be filed to the amended written statement by the plaintiff. Thereafter, fresh issues after the remand were to be framed by the learned trial Court. The learned trail Court took on record the replication filed by the plaintiff to the amended written statement. The learned trial Court framed the additional issue on 7.12.2009. Thereafter, the learned trial Court decided the additional issue on 6.1.2010 by holding that the defendants were entitled to the benefit of Section 3 of the H.R Relief of Agriculture Indebtedness Act, 1976. The defendants filed cross-objections on 11.1.2010 against order dated 6.1.2010 and the plaintiffs also filed cross-objections on 18.2.2010. Thereafter, the case was fixed for arguments four times.