KARTAR SINGH Vs. TRILOK SINGH

JUDGEMENT

(1.) THIS revision is directed against the order dated 9.12.1998 recorded by learned District Judge, Budgam in Civil Original Suit titled Kartar Singh Vs Trilok Singh and Ors. It stems out of those circumstances which are summarised as: -

(2.) ON 12.8.1992 the petitioner/plaintiff came to institute a suit against respondents/ defendants before the learned District Judge, Budgam seeking therein the following reliefs which are reproduced in verbatim as under: -

(3.) THE brief averments of the plaint are that Madan Singh and Bir Singh (whose names are shown in the pedigree table set out in the para No. 1 of the plaint) were decedents of a common ancestor; that the landed property which had devolved upon them was ancestral as a result of which the said land continues to be joint and unpartitioned among the parties who are in its possession as co -owners; that said Bir Singh died issueless after leaving behind his widow namely Lachmi Kour who inherited the land left by her by deceased husband as limited owner viz till her re -marriage or till her death as per the custom prevalent among the parties; that after the death of Lachmi Kour her limited interest in this property left behind by her deceased husband got extinct and reversed back to Bachan Singh son of Madan Singh and after the death of Bachan Singh this property devoided upon his sons (whose names are set out in the plaint); that after the death of lachmi Kour the widow of Bir Singh, Kapoor Singh the father of defendant No. 1 and Chanda Singh father of defendants 2 and 3 and husband of defendant No. 4 got the entire share of land of Bir Singh mutated in their names at the back of plaintiffs on the basis of fraudulent and fictitious Gift Deed dated: 14 -09 -1963 purported to have been executed by deceased Lachmi Kour in their favour; that after about a year back the plaintiffs got the knowledge of this Gift Deed when they asked the defendants to portion their entire land including that left behind by Bir Singh; that the said Gift Deed is purported to have been executed on 14 -09 -1963 by Lachmi Kour when she has expired on 03 -03 -1961; that the share of land left behind by Bir Singh deceased after his death which is measuring about 20 Kanals and 5 Marlas comprising of Survey Nos 258, 271 and 257 located at Naserpora Budgam reverted back to all sons of Bachan Singh after the death of Lachmi Kour who had life interest in this property and this whole land left behind by Bir Singh has devolved upon the five sons of Bachan Singh in equal sharers as reversions of Bir Singh; that Bir Singh during his life time had mortgaged with possession his said share of land measuring about 20 Kanals for a period of 30 years by virtue of Mortgage Deed dated 1st. Phagoan 1999; that as the period of mortgage has expired and the mortgagee having been all through this period in possession of this land is under obligation to restore the mortgage property to its real claimants; that cause of action has accrued to avoid the Gift Deed to the plaintiffs on 07 -04 -1992 when the Additional Commissioner in a Revision Petition has returned a finding that its validity can be adjudged by a Civil Court and the cause of action to seek restituting of the mortgage has accrued about a week back when the defendant No. 1 the mortgagee refused to allow redemption of the mortgaged land by the plaintiff to the extent of their share. Hence this suit.