AMBE LAL Vs. PHINA

JUDGEMENT

(1.) This second appeal has been filed by Shri Ambe Lal and the legal representatives of Shri Lachhman Dass against the dismissal of the appeal by the learned Additional District Judge, Kangra at Dharamsala. The plaintiffs claimed that the land measuring 307 kanals 5 marlas described in the head-note of the plaint, situate in Nangal Mauza Junat, Tehsil Dehra was in their possession since the time of their ancestors. This land in fact had been mortgaged by the ancestors of the defendants in favour of the plaintiffs' ancestors. An area of 225 kanals 1 marla was mortgaged with possession by the owners Chu-har, Tega. Diala sons of Salahi with Moti son of Kahan on 21st March 1898. vide mutation No. 164. Whereas the rest of the land was already under mortgage with possession even prior to 1887-88. The plaintiffs contended that they were mortgagees with possession for over a period of 60 years and had thereby become owners by lapse of time and, therefore, they sought a declaration in their favour to the effect that they are the owners and are entitled to remain in possession and that the names of the defendants be deleted from the revenue papers. The defendants opposed the suit and also pleaded that the plaintiffs were estopped by their act and conduct and that the land in fact had been redeemed on 23rd July. 1950 and that the defendants were the owners of the same and were in actual possession of the land. The trial Court found that out of the plaintiffs, Sarvshri Ambe Lal and Lachhman Dass received Rs. 99/- from the defendants on their own behalf as also on behalf of all other co-mortgagees, some of whom were minors, and that the land was redeemed, vide redemption deed. Exhibit D. 1. It further held that admittedly some of the co-mortgagees cannot allow the redemption of the entire land on behalf of all the mortgagees. Payment of the mortgage money to some of the several co-mortgagees without the consent of the other ra-mortgagees is not a complete discharge of the mortgage debt binding on all the mortgagees. It placed reliance for this on 68 Punjab Records 1917, and accordingly held that Ambe Lal and Lachhaman Dass could not discharge the entire mortgage debt on behalf of all the mortgagees, some of whom were admittedly minors, and that the redemption could be only in so far as the Shares of Ambe Lal and Lachhaman Dass were concerned. Further, that this payment of RS. 99/- was made only with regard to the latter mortgage, for Rs. 99/-effected vide mutation, Exhibit P. 4, which related to the land, khata Nos. 2 and 4, in which Ambe Lal and Lachhaman Dass had 1/3rd share. So. the redemption was only to this extent in these two khatas. The rest of the land of those khatas was not redeemed. Further, it was held that the plaintiffs had become owners of the land, khata No. 3 and all the plaintiffs excepting Ambe Lal and Lachhaman Dass had become owners of 2/3rd land in dispute of khata Nos. 2 and 4. Since Ambe Lal and Lachhaman Dass had executed the redemption deed. Exhibit D. 1, and received the mortgage amount of Rs. 99/from the defendants they were estopped from denying the redemption of their shares out of khata Nos. 2 and 4 to which the redemption related. In fine, the court passed the decree in favour of the plaintiffs to the effect that they were the owners of khata 3 and that the plaintiffs other than Ambe Lal and Lachhaman Dass were also declared owners to the extent of 2/3rd share out of the land covered by khata Nos. 2 and 4, in other words, the suit of the plaintiffs with regard to 1/3rd share in the land, khata Nos. 2 and 4. was dismissed.

(2.) Against this judgment and decree, dismissing their suit to the extent of 1/3rd share. Ambe Lal and Lachhaman Dass went in appeal. The defendants also filed their cross-objections with regard to the decree of 2/3rd share passed against them. It appears, subsequently the defendants did not press their cross-objections and the same were dismissed.

(3.) Before the learned Additional District Judge it was urged by the appellants that the trial court had no jurisdiction to pass any decree relating to the land covered by khata Nos. 2 and 3 as the suit with regards to these khatas was permitted to be withdrawn by the trial Court with liberty to bring a fresh suit. The learned Additional District Judge found that even after the amendment of the plaint the plaintiffs included khatas 2 and 3 which were ordered to be omitted by the trial court in the first instance on the application of the plaintiffs and since they included the same in the amended plaint, therefore, the court had the jurisdiction to pass a decree in respect of these khatas as well. Further, it was urged before him that the findings of the trial court were also wrong inasmuch as it held that there was no legal and valid redemption of a part of the suit land by the appellant alone. The learned Additional District Judge held on this point that since the remaining co-mortgagees were not bound by the payment made by the mortgagors to Ambe Lal and Lachhaman Dass mortgagees, they continued to enjoy the status of mortgagees in respect of the entire mortgaged property and their mortgage security could not be redeemed without their consent by the acts of other parties to the mortgage. He. accordingly reversed the findings of the trial court and held that no part of the mortgage had been redeemed. However, he further held that the appellants represented to the respondent-mortgagors that in case the latter paid Rs. 99/- the entire mortgage would be redeemed and acting on that representation the respondents did pay Rs. 99/-to the appellant. The appellants were, therefore, estopped from pleading that no redemption has been effected. In any case relief of declaration being discretionary, the discretion of the court was not to be exercised in favour of the persons, like the present appellants, who did not come to the court with clean hands. In view of these findings he observed that the appellants were not entitled to any relief claimed by them and that their claim was rightly dismissed by the trial court, and he accordingly dismissed the appeal, thus affirming the judgment and decree of the trial court.