BARDU & ANOTHER Vs. BRIJ LAL & OTHERS

JUDGEMENT

(1.) This appeal has been filed by the appellantdefendants No.1,3 & 5, (for short appellants-defendants) against the judgment and decree dated 27.4.2004 passed by the learned District Judge, Bilaspur, District Bilaspur, H.P., whereby the applications, one being CMP No.125 of 2004 under Order 1 Rule 10(2) and Order 22 Rule 4 CPC, for deletion of name of appellant No.3 Bohru, who expired on 29.11.1998, for bringing on record Legal Representatives of respondent No.1 Ram Dass, who expired on 2.12.1998 and Chandu, proforma respondent No.4, who expired on 10.7.1996, and second being CMP Nos.126 of 2004 under Order 22 Rule 4 CPC for bringing on record the legal representatives of proforma respondents No.5, namely; Shri Lachhaman, who expired on 13.4.2002, moved by appellants-defendants have been dismissed, as a result of which appeal stood dismissed as having abated.

(2.) The brief facts emerge from the record are that the plaintiffs-respondents (hereinafter referred to as 'plaintiffs'), filed a suit for declaration and permanent prohibitory injunction wherein it was pleaded that the suit land measuring 4-9 bighas comprised of Khewat No.9, Khatauni No.11, Khasra Nos.26,29,100,133 and 140, situated at village Kathpur, Pargana and Tehsil Sadar, District Bilaspur, H.P. was mortgaged with possession in favour of predecessor-in-interest of plaintiffs and defendants No.6 and 7 by the predecessors-in-interest of defendants No. 1 to 4, regarding which mutation was attested. But neither predecessors-in-interest of defendants nor defendants No.1 to 4 redeemed the suit land and took back possession from the plaintiffs within statutory period of limitation for redumption. Since, said statutory period had expired, therefore, plaintiffs pleaded that they have become owners in possession of the suit land. The plaintiffs further stated that defendant No.5 had no right title or interest over the suit land and revenue entries in favour of defendant No.5 in respect of suit land were specifically challenged. Hence, the suit for permanent prohibitory injunction against defendants.

(3.) Defendants Nos.1 to 4, by way of filing joint written statement wherein, took preliminary objections regarding maintainability of the suit, cause of action, estoppel, notice under section 80 CPC and jurisdiction of the Court. On merits, it is alleged by the defendants that in the year 2004 they returned the mortgage amount to the mortgagees i.e. plaintiffs and entered into possession of the suit land. It is alleged that since defendants redeemed the suit land from the plaintiffs on the same day, when plaintiffs redeedmed it from one Dhani Ram, therefore, the entries in the name of defendant No.5 were wrong. Consequently, defendants prayed for the dismissal of the suit.