SUKH RAM Vs. RATTAN CHAND AND ORS.

JUDGEMENT

(1.) This Regular Second Appeal has been instituted against the judgment 3.3.2005 rendered by learned District Judge, Hamirpur, Himachal Pradesh in Civil Appeal No. 41 of 2002.

(2.) "Key facts" necessary for adjudication of the present appeal are that the appellants -plaintiffs (hereinafter referred to as 'plaintiffs' for convenience sake) have instituted a suit for injunction against the respondents -defendants (hereinafter referred to as 'defendants' for convenience sake). Case of the plaintiffs is that the suit land was owned by one Nihalu. He has mortgaged the suit land alongwith other land vide mutation No. 257 dated 26.5.1895 for a consideration of Rs. 148 -12 anna - 3 paise in favour of Shri Chaudhary son of Kanyanu to the extent of half share. Remaining half was mortgaged by Nihalu with Gurmukh and Ganesh sons of Shri Sidhu. According to mutation No. 67 dated 4.2.1924, original owner Nihalu sold the suit property alongwith other land and share in Shamlat -Deh to Shri Shivu and Chuhru sons of Shri Gurmukh (two shares) and Birju, Gaddi, Munshi and Kanshi sons of Shri Gulaba (1 share). Plaintiffs are the successors -in -interest of the original mortgagees. Disputed land is in their possession since the time of mortgage. The mortgage was not redeemed by the defendants or their ancestors. More than 30 years have lapsed, the defendants have lost their title over the disputed land. Plaintiffs have become the owners of the suit land with the afflux of time. During the course of consolidation and settlement, possession of the plaintiffs was found over the suit land. The defendants even got their Khata separated from other co -sharers.

(3.) The suit was contested by the defendants. According to them, plaintiffs or their predecessor -in -interest were never mortgagees in possession of the suit land, rather they were mortgagors and suit land was mortgaged with the defendants and their ancestors. They have become owners with the afflux of time and they have every right to utilize the suit land No sale was effected. Revenue record was altered by the consolidation authorities without following due process at their back. Entries were wrong.