DHIAN SINGH Vs. NARDU

JUDGEMENT

(1.) Contesting defendants 1 to 3 (mortgagees) are the appellants. They have assailed the judgment dated 31st Jan., 1985 passed by the learned District Judge, Hamirpur, whereby the judgment and decree of the trial Court have been affirmed and preliminary decree for possession of the suit land by way of redemption in favour of the plaintiffs and against the defendants 1 to 3 as also defendant No. 4 by subrogation on payment of Rs. 104.17 stood affirmed as prayed for.

(2.) The bone of contention pertains to 5/12 of ⅙ share of Khata Khatauni No. 51/88, Khasra No. 890, measuring 17 marlas, 5/12 of Khata Khatauni No. 52/89, Khasra No. 884 measuring 1 kanal 10 marlas and 5/12 of 1/4 share in Khata Khatauni No. 56/108 of Khasra No. 668 measuring 72 kanals 3 marlas (hereinafter) shortly referred as the 'suit land')

(3.) Smt. Gulabi, widow of Shri Jangi had mortgaged the suit land to the extent of abovesaid shares to one Shri Taloka (father of defendants 1 to 3) vide mutation No. 133 dated 8.1.1927 (Ext. P-2). Plaintiffs assert that on the death of Smt. Gulabi, contesting defendants 1 to 3 inherited in her estate to the extent of 1/2 share, defendant No. 4 (Shri Kirpa Ram, since deceased) also inherited 2/12 share alongwith plaintiffs who became heirs to the extent of 3/12 share besides one Smt. Sarbo, who inherited to the extent of 1/12 share. Said Smt. Sarbo sold her share to defendants 1 to 3 Kirpa's (defendant No. 4) estate was succeeded by Smt. Shanti who divested herself of 1/2 share by its sale to Smt. Premi, wife of Shri Atma Ram and other 1/2 share to her five sons jointly. Thus, consequent upon the inheritance in the manner referred to above, the defendants Nos. 1 to 3 became owners/mortgagees qua 7/12 share while plaintiffs became owners/mortgagors qua 3/12 share and deceased defendant, Kirpa Ram qua 2/12 share. This position is reflected in the jamabandi for the year 1967-68 (Ext. P-1). In other words, to the extent of 7/12 share of the suit land, there have been mergers of mortgagees rights with those of the mortgagors' rights and all such kinds of rights merged into the ownership rights in favour of defendants 1 to 3. Plaintiffs also alleged that as Shri Kirpa, since deceased (defendant No. 4) had colluded with contesting defendants 1 and 3 and abstained from either paying his share of the mortgage amount or to become a plaintiff alongwith them, he has been impleaded in the array of defendants. In this situation, the plaintiffs filed the suit for redemption to the extent of 3/12 share of the suit land as mortgagors and other 2/12 share by subrogation in lieu of the mortgage money amount to the extent of Rs. 104.17 out of the total mortgage money of Rs. 250.00.