STATE OF H P Vs. RAMSWAROOP & ORS

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure is directed against the judgment and decree dated 30.11.2002, passed by learned Additional District Judge, Nahan, District Sirmaur, H.P. in Civil Appeal No. 49-N/13 of 2002, affirming the judgment and decree dated 8.5.2002, passed by learned Senior Sub Judge, Sirmaur District at Nahan, H.P. in Civil Suit No. 253/1 of 2001/96, whereby suit filed by plaintiffs was decreed by declaring him to be owner in possession of entire suit land including disputed share of Shri Mohar singh (Original mortgagor) comprised under Khewat No. 8, Khatauni Nos. 25, 26 and 27, total measuring 23- 16 bighas as per jamabandi for the year 1992-93 situated in village Chamba Sheel, Tehsil Nahan, District Sirmaur, H.P. Learned trial Court while allowing aforesaid suit of the plaintiffs also declared revenue entries showing defendant i.e. State of H.P. as owner of mortgagor of suit land to the extent of ½ share, illegal, null and void and not binding upon the right of the plaintiffs.

(2.) Briefly stated facts, as emerged from the record are that the plaintiffs (hereinafter after referred to as the 'respondents-plaintiffs') filed suit for declaration against defendant (hereinafter referred to as the 'appellant-defendant') averring therein that they are owner in possession of suit land comprised in Khewat No. 8, Khatauni Nos. 25, 26 & 27, measuring 23 bighas and 16 biswas as per jamabandi for the year 1992-93 situated in village Chamba Sheel, Tehsil Nahan, District Sirmaur, H.P. , which has been recorded in the column of ownership to the extent of ½ share in the name of the appellant-defendant and the remaining ½ share in the names of the plaintiffs-respondents. Plaintiffs-respondents further averred that half share of the suit land was owned by predecessor-ininterest of plaintiffs-respondents, namely, S/Shri Dharmu & Bir Singh sons of Shri Ganga Ram to the extent of the of ½ share and the remaining ½ share was owned by Shri Mohar Singh son of Shri Mangal Singh. As per plaintiffs-respondents, Shri Mohar Singh mortgaged his share with the predecessor-in-interest of plaintiffs-respondents vide mutation No. 16 attested on 20th Chait BK Sambat 1970. Plaintiffs-respondents further contended that predecessor-in-interest of plaintiffs-respondents remained in possession of entire suit land and mortgage was never redeemed either by Shri Mohar Singh or his successor-ininterest, as a result of which, the plaintiffs-respondents, who succeeded the suit land, became owner of the entire suit land. Plaintiffs-respondents further contended that half share of Shri Mohar Singh in the suit land was inherited by Smt. Sandla Devi widow of Shri Mohar Singh, but since she also failed to get the mortgage of the suit land redeemed till 31.12.1970, her right to get the suit land redeemed got extinguished, as a result of which, plaintiffs-respondents became absolute owner of the suit land. Plaintiffs-respondents further alleged that Smt. Sandla Devi in connivance with the appellant-defendant surrendered half share of the suit land in favour of appellant-defendant, as a result of which, appellant-defendant was shown mortgagor of the suit land, but fact remains that entire suit land was in possession of the plaintiffs-respondents and same was wrongly shown in the ownership of Smt. Sandla Devi after 31.12.1970. In the aforesaid background, plaintiffs-respondents filed suit for declaration as has been detailed hereinabove.

(3.) Present appellant-defendant by way of written statement refuted the claim of the plaintiffs-respondents by stating that total area of holding was 8-9 bighas whereas now the plaintiffs-respondents are claiming ownership and possession of 23-16 bighas. Appellant-defendant further contended that plaintiffs-respondents got the revenue entries changed in their favour in connivance with the revenue officials by playing fraud upon the appellant-defendant. Appellantdefendant further stated that mortgage created by Shri Mohar Singh in favour of predecessor-in-interest of the plaintiffsrespondents was without any share in shamlat, as such, plaintiffs-respondents cannot be treated owner in possession of 23-16 bighas of land. In the aforesaid background, appellantdefendant sought dismissal of the suit filed by the plaintiffsrespondents.