TRIPTA DEVI Vs. CHUNI LAL

JUDGEMENT

(1.) By way of this appeal, the appellants have challenged the judgment and decree dated 2.3.2002 passed by the court of learned Additional District Judge, Mandi, in Civil Appeal No.16/1996, vide which learned appellate court allowed the appeal filed by the present respondents and set aside the judgment and decree dated 16.12.1995 passed by the learned trial court in Civil Suit No.65/1989 in favour of plaintiffs on the sole ground that the mortgage money was not deposited by the plaintiffs within the period so granted by the learned trial court.

(2.) Brief facts necessary for the adjudication of the present case are that the appellants (hereinafter referred to as the "plaintiffs") filed a suit for possession by way of redemption on the ground that the suit land comprised in Khewat Khatauni No.103 min/190, Khasra Nos. 1039, 1044, Kita 2, measuring 0-10-01 hectares was mortgaged by the father of plaintiffs, Sh. Narainoo to the predecessor-in-interest of defendants No. 1 and 2, Sh. Sant Ram on 25.3.1964. As per the plaintiffs, one Sh. Krishan Dayal, predecessor in interest of defendants No. 3 to 8 was closely related to Sh. Sant Ram being his brother-in-law. Sh. Sant Ram in connivance with the revenue staff as well as Sh. Krishan Dayal created tenancy, in papers only, in favour of predecessor-in-interest of defendants No. 3 to 8, for which Sh. Sant Ram had no right. Krishan Dayal, predecessor-in interest of defendants No. 3 to 8, in fact never occupied the suit land in his capacity as tenant prior to the mortgage. It was further the case of the plaintiffs that Sh. Sant Ram had executed a Will in favour of defendants No. 1 and 2. The original mortgagor, Sh. Narainoo, father of the plaintiffs, had executed a gift deed in favour of the plaintiffs. As per the plaintiffs, the entry of tenancy in favour of Sh. Krishan Dayal and thereafter in the name of defendants No. 3 to 8 was wrong and illegal as Sh. Sant Ram had no right to create any such tenancy over the mortgaged land. On these basis, the suit was filed and a decree for possession of the suit land by way of redemption was sought against the defendants.

(3.) No written statement was filed on behalf of defendants No. 1 and 2, though the suit was resisted by defendants No. 3 to 8 by filing joint written statement, who inter alia took the stand that the suit land was coming in possession of their father, Sh. Krishan Dayal as non-occupancy tenant since 1950, i.e. much prior to the alleged mortgage. As per the said defendants, the suit land was mortgaged by Sh. Narainoo, father of the plaintiffs with Sh. Sant Ram, father of defendants No. 1 and 2, however the suit land was previously in possession of their father, Sh. Krishan Dayal, in his capacity as non-occupancy tenant under Sh. Narainoo and after the death of Sh. Krishan Dayal, his tenancy rights devolved upon defendants No. 3 to 8, who thereafter were in possession of the suit land as non-occupancy tenants. It was further their case that at the time of creation of mortgage in favour of Sh. Sant Ram, the possession of the suit land was not delivered to him and rather, the mortgage with respect to ownership rights was created as possession was with Sh. Krishan Dayal as non-occupancy tenant. Though mutation No.83 regarding conferment of proprietary rights over the suit land was duly entered by Patwari Halqua on 24.3.1976, but the same was rejected by Assistant Collector, II grade, vide his order dated 23.5.1978 on the ground that since the plaintiffs were minor, proprietary rights qua the same could not be granted.