MEHAR CHAND Vs. LACHHMI

JUDGEMENT

(1.) One Shri Kanhya Ram, predecessor-in-interest of the respondents filed a suit for declaration that the plaintiff and pro forma defendants have become owners in possession of the suit land as described in the plaint on the ground that the suit land was mortgaged with the predecessor-in-interest of the plaintiff and pro forma defendants for more than forty years ago and by means of efflux of time, the right to redeem enjoyed by the defendants mortgagors had been extinguished. The case of the plaintiffs as pleaded had been that plaintiffs and pro forma defendants were in actual physical possession of the suit land and defendant Smt. Devku was the last mortgagor of the said land. It was further pleaded by the plaintiffs that the defendants by undue influence and by fraud got a gift deed in respect of the mortgaged land and upon the strength of that void gift deed they applied to the Assistant Collector, Kandaghat under S. 4 of the Redemption of Mortgages Act and got a redemption order on 23-1-1978 whereby the learned Collector ordered the redemption of the suit land and delivery of its possession to the defendants. Plaintiffs also averred that the order of the Collector dated 23-1-1978 was void, illegal and without jurisdiction for the reasons that the mortgage had already become barred by time and was not redeemable, the amount of the mortgage money was not deposited in accordance with law. It was also pleaded that the, Collector ignored the fact that a civil suit was pending in the Court of Sub-Judge, Ist Class, Kandaghat filed by Smt. Devku challenging the validity of the gift deed alleged to have been executed by her and from which the defendants are alleged to have derived their title. The plaintiffs also alleged that the Assistant Collector otherwise had no jurisdiction to decide the complicated and intricate questions of law in such a summary way under the provisions of the Himachal Pradesh Redemption of Mortgages Act and the matter was required to be left to the adjudication of the Civil Court. Through the suit the plaintiffs sought the declaration that the plaintiffs and pro forma defendants had become owners in possession of the suit land by lapse of time. The mortgage having not been redeemed within the stipulated period and on that account, it was prayed that the order of the Assistant Collector dated 23-1-1978 be declared to be void and illegal. As a consequential relief, permanent injunction had been sought for restraining the defendants from dispossessing the plaintiffs from the suit land. It was also prayed that in case in pursuance of the order passed by the Assistant Collector the plaintiffs and pro forma defendants are dispossessed, a decree for possession in that event may be passed.

(2.) The suit was contested and the averments made in the plaint as pleaded were not admitted.

(3.) The parties were put to trial on the following issues by the trial Court :-