PARMA Vs. SHIV SINGH

JUDGEMENT

(1.) THE defendants, who are the appellants, before this Court have filed this Regular Second Appeal against the judgment and decree dated 23.11.1998 passed by learned District Judge, Solan, in Civil Appeal No. 3 -NS/13 of 1992 whereby he set aside the judgment and decree dated 18.01.1992 passed by learned Sub Judge Ist Class, Arki, in Case No. 53/1 of 1988. Consequently, the suit of the plaintiffs for possession by way of redemption of suit land was decreed on payment of mortgage amount of Rs. 800/ -.

(2.) THE plaintiffs/respondents (hereinafter referred to as the plaintiffs) filed a suit for redemption and it was averred by the plaintiffs that they are owners of land comprising Khewat No. 30, Khatauni No. 120, Khasra No. 992, measuring 17 bighas 13 biswas, situate in Village Mangoo, Pargana Matyanj Kalan, Tehsil Arki, District Solan (hereinafter referred to as the suit land). It was further averred that the suit land was mortgaged with Dhanu by plaintiffs for a consideration of Rs. 400/ - in the year Sambat 2004 BK and the suit land was redeemed in early 1951 and the mutation to this effect was entered and attested at serial No. 839 on 18.04.1951. It was also averred that the suit land was again mortgaged on 18.04.1951 for a consideration of Rs. 800/ - with Dhanu alone and the mutation to this effect was also entered at serial No. 840 which was attested on 18.04.1951. There was a partition between plaintiff No. 1 and 2 during consolidation and the land comprising Khewat No. 32, Khatauni No. 40, Khasra No. 3, measuring 6 bighas, out of the aforesaid suit land had fallen to the share of plaintiff No. 2 and the land comprised in Khewat No. 38, Khatauni No. 45, Khasra No. 563, measuring 8 bighas 17 biswas fell to the share of plaintiff No. 1. Though mortgagees were shown common over the above suit land but actually Dhanu possessed the suit land on the spot as mortgagee and on the suit land Dhanu had inducted Masta joint mortgagee without the consent of the plaintiffs. It was also averred that the plaintiff No. 2 paid a sum of Rs. 400/ - to the legal heirs of Dhanu mortgagee i.e. proforma defendants No. 2 to 13 before the trial Court through Mansu, who delivered the possession in respect of the land comprising Khewat No. 32, Khatauni No. 40, Khasra No. 3, measuring 6 bighas and since then the plaintiff No. 2 is owner in possession of the land.

(3.) THE suit was contested by the defendant No. 1 alone and preliminary objections with regard to suit being time barred, jurisdiction of the Civil Court, maintainability of suit and that the defendants have become owners in possession by efflux of time, were taken. On merits, it was admitted by the defendant No. 1 that the plaintiffs mortgaged the suit land with possession with the predecessors of the defendants namely Dhanu and Mastia in equal shares and mutation No. 700 was sanctioned and attested on 07.02.2004 BK to this effect, though report was made to the Patwari on 02.01.2004 BK. It was averred that the predecessors of the defendants occupied the suit land in the year 2003 BK and thus the plaintiffs have lost the right to redeem the suit land and the proforma defendants are not in possession of the suit land as owners. It was further averred that by mistake the name of Shri Mastia was not entered and attested in the mutation and when the mistake was discovered, mutation No. 735 was attested to this effect on 25.03.2004 BK, whereas, the report was made immediately on 30.02.2004 BK. As per the defendant No. 1, in the year 1951, the plaintiffs took more loan of Rs. 400/ - and a formal mutation to show that he land stood mortgaged on an enhanced sum of Rs. 800/ - was attested which was described as mutation of 'Izadi Rehan' clarifying the fact of only enhancement of the sum secured and possession continued that of the mortgagees and the mutation of 'Izadi Rehan' and the 'Tartibi Faqual Rehan' were attested on the same date i.e. 18.04.1951 on the basis of the report No. 291.