KANTA DEVI Vs. KHUSHIA

JUDGEMENT

(1.) This is the plaintiffs second appeal against the judgment and decree dated 29 -6 -1988 of the Additional District Judge (II), Kangra at Dbaramshaia whereby the appeal filed by the defendant against the judgment and decree dated 30 -3 -1985 of Sub -Judge, Nurpur was set aside, 2 Briefly stated, the facts of the present case are these. Land measuring 4 kanals 7 marlas comprising of khasra No. 19, Khewat No 51 khatauni No 83 of Tikka and Mauza Khbbar, Tehsil Nurpur, District Kangra (specifically described in the plaint and hereinafter referred to as the land in dispute) was owned by one Roda It used to be cultivated by a tenant Rama till 1967 -68 Thereafter the land in dispute came to be cultivated by one Milkhi. The said Milkhi also left the cultivation of the land in dispute which was then mortgaged by Roda in favour of one Beldev Singh, husband of the plaintiff. Said Baldev Singh during the sub -sistance of the mortgage, inducted the defendant as a tenant to the extent of 2/3rd share in the land in dispute Roda above named died and was succeeded by the present plaintiff under a will The mortgage qua the land in dispute created by Roda was redeemed by the plaintiff vide mutation No 503. After the redemption of the mortgage, the plaintiff brought a suit for possession of the land in dispute against the defendant by averring that his tenancy created by the mortgagee came to an end with the redemption of the mortgage and that since after such redemption, the possession of the defendant over the land in dispute was unauthorised

(2.) The suit was resisted by the defendant.

(3.) The mortgage by Roda in favour of Baldev Singh was admitted. It was pleaded that he is coming in possession of the land in dispute as a tenant since prior to the mortgage under the original owner Roda. In the alternative, it was pleaded that in case he is found to have been inducted as a tenant by the mortgagee, he was so inducted by the mortgagee as an act of good management and the plaintiff was bound by the same and he would continue to be a tenant qua the land in dispute even after the redemption It was also averred that the mortgage in question was a fictitious transaction made just to defeat his rights qua the land in dispute Preliminary objections as to estoppel, suit being bad for nonjoinder of necessary parties, jurisdiction of the civil court and the suit being barred under Order 2, Rule 2, Code of Civil Procedure, were also raised.