RAM RAKHI Vs. ATTI

JUDGEMENT

(1.) This regular second ap-peal is directed against the decree and judgment dated 10-10-1988 passed by the District Judge, Una whereby the appeal of the respondents/plaintiffs was accepted, the decree and judgment dated 30-9-1985 of Sub Judge (I), Una was set aside and the suit of the respondents/plaintiffs was decreed for pos-session by redemption of mortgage. They were ordered to deposit the mortgage money within a period of two months. It was also directed that on deposit of the mortgage amount, the appellant/defendant will deliver possession of the suit land to the respondent/plaintiffs.

(2.) The suit of the respondents/plaintiffs was that one of them Smt. Atti was owner in possession of the suit land as stated in the heading of the plaint. The suit land consists of two parcels of land situated in two villages i.e. Bhalkoon and Baroa, which will hereinafter be referred to as villages 'A' and 'B'. The land in village 'A' is measuring 3 kanals 8 marlas and comprised in Khasra Nos. 367, 405, 408, 526 and 532 and land in village 'B' is measuring 9 kanals 7 marlas comprised in Khatoni Nos. 71, 72, 73, 74, 75, 76 and 77 as shown in jamabandi for the year 1971-72, which was later on brought on record as Ext. P4. The case of the respondents/plaintiffs was that Smt. Atti had mortgaged the suit land in April, 1950 in favour of appellant/defendant for an amount of Rs. 425.00 and had delivered its possession to her. For mortgage of land in village 'B' Mutation No. 194 was attested on 18-4-1950 and for land in village 'A' though Mutation No. 166 was entered on 13-12-1955 but it was rejected on 21-4-1957 behind the back of respondent/plaintiff Smt. Atti as alleged by her. She had made a gift of a part of mortgaged land in favour of respondent/plaintiff Smt. Dropti, who is her daughter, therefore, Smt. Dropti was also added as plaintiff. The suit was filed on 23-2-1980.

(3.) The appellant/defendant resisted the suit on the ground that mortgage in question was created much prior to the year 1950 and it did not subsist. The alternative case of the appellant/defendant was that her husband and after his death, she herself was in possession of the suit land as a tenant and in case of redemption of the mortgage her tenancy will revive and she will continue in possession as a tenant. The defence that the mortgage was created much prior to April, 1950 and it was not subsisting on the date of filing of the suit weighed with the trial Court and it dismissed the suit. But the claim of the appellant/defendant that her husband and after his death she herself was the tenant over the suit land and her tenancy will revive after the suit land is redeemed was rejected. How-ever, in appeal the findings of trial court are reversed so far the first point is concerned and it was held that the suit land was mortgaged in April, 1950 and was liable to be redeemed. The findings on other point were not examin-ed by the District Judge on the ground that these were not challenged by the appellant/defendant who was respondent before him by filing cross objections. Now, in the present regular second appeal the appellant/defendant has challenged the findings of the courts below on both the points.