LAWS(HPH)-2015-2-22

GANDHI RAM Vs. RAJ KUMAR AND ORS.

Decided On February 28, 2015
Gandhi Ram Appellant
V/S
Raj Kumar and Ors. Respondents

JUDGEMENT

(1.) THE present appeal has been preferred by the appellant/defendant No. 3 against judgment and decree dated 4.2.2014 passed in Civil Appeal No. 154 of 2011 by learned District Judge, Hamirpur, H.P. whereby he affirmed the judgment and decree dated 8.11.2011 passed by learned Civil Judge (Senior Division), Hamirpur, H.P. in Civil Suit No. 193 of 2008.

(2.) THE facts, in brief, are that late Sh. Roshan Lal, father of the respondents/plaintiffs and his brother were owners of land measuring 130.20 square metres bearing Khasra Nos. 1028, 1026 and 1027, Khata No. 76, Khatauni Nos. 150, 151 and 152 situated in Up Mahal, Hamirpur, Tappa Bajuri, Tehsil and District Hamirpur, H.P. Out of his 11 shares in this land, Roshan Lal mortgaged his three shares, that is, the suit property in favour of respondents No. 3 and 4 herein/defendants No. 1 and 2 vide mortgage deed dated 14.1.1981 against a mortgage money of Rs. 1,500/ - and mutation to this effect was sanctioned vide mutation No. 636 on 18.4.1981. The mortgage was with possession. The father of the plaintiffs expired and succeeded by the plaintiffs and mutation to this effect was sanctioned vide mutation No. 882. During his life time, the father of the plaintiffs had constructed a double storey shop over khasra No. 1027 on the area measuring 15' x 38' (4.5 metres x 14.1 metres). The said shop is a part of mortgaged property, i.e. the property mortgaged by Sh. Roshan Lal in favour of defendants No. 1 and 2 vide mortgage deed dated 14.1.1981 for a sum of Rs. 1,500/ -. After the death of the father of defendants No. 1 and 2, defendants No. 1 and 2 have come into possession of the mortgaged property. During the subsistence of mortgage, the father of defendants No. 1 and 2 inducted Sh. Johli Ram, father of present appellant and respondent No. 5 herein/defendants No. 3 and 4 before the learned trial Court, as tenant over the aforesaid shop. The defendants No. 1 and 2 are coming in possession of the mortgaged property since 14.1.1981 by themselves, through their father and through defendants No. 3 and 4 and their father late Sh. Johli Ram. In November, 2008 the plaintiffs offered a sum of Rs. 1,500/ - to the defendants and asked them to redeem the mortgaged property but they refused. Hence, the plaintiffs filed the suit against the defendants for a decree of possession by way of redemption of the suit property on payment of Rs. 1,500/ - as mortgage money.

(3.) ON the pleadings of the parties, the learned trial Court on 2.4.2009 framed the following issues: