PREM SINGH Vs. PRAKASH CHAND AND OTHERS

JUDGEMENT

(1.) This regular second appeal is directed against the judgment and decree dated 07.10.2003 passed by the learned Additional District Judge (I), Kangra at Dharamshala, in Civil Appeal No.3-D/2001, whereby he affirmed the judgment and decree dated 20.10.2000 passed by the learned Sub Judge-I, Dharamshala, in Civil Suit No.10/97, whereby the suit filed by the plaintiff came to be decreed.

(2.) The brief facts of the case as set up by the plaintiff/respondent (hereinafter referred to as the respondent) are that the respondent filed a suit for possession by way of redemption of mortgage of two houses single storeyed standing on the land comprised in Khata No.255 min, Khatauni No.340 min, Khasra Nos.1009 and 1011, measuring 0-00-36 hects. and 0-00-35 hects. total area 0-00-71 hects. alongwith permanent prohibitory injunction restraining the defendants/appellant (hereinafter referred to as the appellant) from interfering in the land comprised in Khasra Nos.1010, 1012. It was averred that respondent was owner in possession of the land comprised in Khasra Nos.1010 and 1012 and on 19.03.1982 through a writing, he mortgaged with possession the two houses standing in Khasra Nos.1009 and 1011 in favour of appellant for Rs. 2500/-. It was further averred that on 09.04.1983 the appellant further mortgaged with possession the aforesaid houses to proforma respondent No.2 and the same are now in possession of proforma respondent No.2, who himself resides therein alongwith his family. It was further pleaded that the respondent, who wanted to redeem the mortgage and get back possession of his houses offered the mortgage amount of Rs. 2500/- to proforma respondent No.2 in December, 1996 and asked him to hand over the vacant possession of the houses to the respondent, but he flatly refused to do so. The appellant and proforma respondent No.2 never had anything to do with the land of Khasra Nos. 1010 and 1012, but after the respondent intended to redeem the mortgage, then they started interfering in the possession qua the aforesaid khasra numbers and threatened him with dire consequences, hence the suit was filed.

(3.) The suit was contested by appellant by filing written statement wherein preliminary objections qua maintainability, estoppel, limitation, partial redemption, valuation and non-joinder of necessary parties were taken. On merits, it was pleaded that the respondent is neither owner nor in possession of the suit property. The respondent's right stood forfeited in favour of the State of H.P. as the respondent violated the terms and conditions of conferment of ownership rights in favour of the respondent as he had no authority to sell and mortgage the suit property. Appellant and respondent entered into an agreement regarding the suit property on 19.03.1982 whereby the respondent agreed to sell the suit property in favour of the appellant for a total consideration of Rs. 2500/- and put the appellant in possession of the suit property. In fact in performance of the agreement, appellant had taken the possession of the suit property and in furtherance of agreement appellant paid the amount to the respondent and he agreed to execute the sale deed of the suit property in favour of appellant during the period of 10 years, as per the terms and conditions laid by the State of H.P. on the conferment of proprietary rights. After completion of 10 years, the respondent did not execute the sale deed despite repeated requests by the appellant to do so and the appellant was and is still ready to get the sale deed executed of the suit land from the respondent, but the respondent failed to perform his part. It was further pleaded that the possession of appellant is protected under Section 53-A of the Transfer of Property Act (for short 'Act') and the suit filed by the respondent is not maintainable. It was also pleaded that after execution of the said agreement, appellant inducted proforma respondent No.2 as a tenant of the suit land comprised in Khasra Nos. 1010 and 1012 in May, 1982 and since then proforma respondent No.2 has been cultivating the said land as a tenant and is in possession of the same. The appellant wanted to go to foreign country and was in need of money and, therefore, he obtained loan from proforma respondent No.2 to the tune of Rs. 7500/- with the stipulation of returning the same alongwith interest. The appellant on 09.11.1983 also put proforma respondent No.2 in possession of the suit houses by getting Rs. 2500/- from proforma respondent No.2 with the condition that the said houses and land would be sold to proforma respondent No.2 and proforma respondent No.2 in part performance of the agreement took possession of the property in suit and in furtherance of the agreement paid a sum of Rs. 2500/- to the appellant. It was lastly pleaded that the possession of proforma respondent No.2 is protected under Section 53-A of the Act. Proforma respondent No.2 is in lawful possession of the suit property. Rests of the contents were denied with the prayer that the suit be dismissed with costs.