KARAM SINGH Vs. PIARA SINGH AND OTHERS

JUDGEMENT

(1.) By way of this appeal, the appellant/defendant has challenged the judgment and decree passed by the Court of learned District Judge, Una, in Civil Appeal No. 76 of 1997, dated 12.05.2003, vide which, learned Appellate Court while dismissing the appeal so filed by the present appellant upheld the judgment and decree passed by the Court of learned Sub Judge 1st Class, Court No. 1, Una, in Civil Suit No. 175/89, RBT No. 505/95/89, dated 30.04.1997, whereby learned trial Court had decreed the suit so filed by the present respondents/plaintiffs and held parties to be joint owner in possession of the suit land in equal shares as parties had perfected their title into ownership by afflux of time and it further held that mutations No. 1 and 2 were illegal and defendants were restrained from ousting the plaintiffs from the suit land.

(2.) This appeal was admitted on 08.10.2003 on the following substantial questions of law:

(3.) Brief facts necessary for the adjudication of this appeal are that respondent/plaintiff (hereinafter referred to as 'plaintiff') filed a suit to the effect that Shiba @ Shiv Ram s/o Bhupa was the original owner of the suit land and in June 1950, he mortgaged the same with possession for a sum of Rs. 2,600/- to Atma Singh, father of the parties. Atma Singh remained in possession of same as a mortgagee till his death in the year 1980 and thereafter his five sons succeeded to his estate as his legal heirs and were in joint possession of the suit land in equal share. Khasra No. 1699 was a Tubewell which was sunk by plaintiffs at their own cost. Mortgage created by Shiba remained unredeemed and as the land was not redeemed within the prescribed period, the mortgagee had become full owner of the same by afflux of time. As per plaintiffs, Lakha son of Shiba on 11.11.1964 sold his interest in the suit land in favour of defendant No. 2 to the extent of ¾ share and in favour of defendant No. 1 to the extent of 1/4th share and mortgage money was kept with them. Defendants after such purchase of the suit land from Lakha had several occasions to redeem the suit land by releasing the mortgage amount to mortgagee. As per plaintiffs, after the death of Atma Singh, parties to the suit succeeded to the same as mortgagee and came in possession of the same and mortgage remained unredeemed during the period of limitation, as a result of which, parties of the suit became full owners of the suit land by afflux of time who earlier were mortgagees of the suit land. Thus, as per plaintiffs, defendants lost their all rights under sale deeds dated 11.11.1964. As per plaintiffs, defendants had secured fake redemption entries of mortgage in dispute vide mutations No. 1 and 2, dated 14.04.1988 by colluding with local Patwari and revenue authorities which mutations were attested at the back of plaintiffs. As per plaintiffs neither they received notice of mutation nor they had appeared before any authority or had received their monetary share in mortgage. As per plaintiffs order passed by Collector 2nd Grade, dated 14.4.1988 was thus illegal and without jurisdiction and in fact no redemption could be ordered after expiry of period of limitation. On these bases, the plaintiffs filed the suit praying for the following relief.