BAL MUKAND Vs. MANGILAL

JUDGEMENT

(1.) CIRCUMSTANCES leading to this revision are as follows: - The opposite party preferred an application for re-instatement along with compensation over the disputed land with the allegation that he has been cultivating it for a number of years but had been wrongfully dis-possessed therefrom by the applicant on 11. 8. 5 8. To this he also added a prayer for the grant of a perpetual injunction which was probably never pressed during the proceedings. The application was contested by the applicant on the ground that the land had been mortgaged with the opposite party who had cultivated only during the periods of the subsistence of the mortgage, but that the same had been got redeemed about two years back and that the land was no longer in cultivatory possession of the opposite party. He denied having dispossessed the opposite party on 11. 8. 58 and contended that the date had been alleged to bring the application within limitation. The enquiry revealed that the land had been mortgaged with the opposite party by the applicant and that it had been redeemed in Chet Svt. 2012. It was also revealed from the statements of the parties that when the mortage money was paid by the applicant to the opposite party for getting the land re-deemed, the opposite party made a request to the applicant that he should be allowed to continue cultivating the land. The applicant acceded to this request and let the opposite party continue cultivating the land for one year on payment of rent. It was also found that the applicant forcibly took possession of the land when the opposite party did not relinquish possession of the disputed land after the expiry of that period. A plea was also raised by the applicant that a part of the land had been mutated in the name of Shri Krishan, his minor son, and that he had not been impleaded as a party to the proceedings. The learned trial court framed two issues - (1) whether the opposite party had been cultivating the disputed land for a number of years and had been wrongfully dis-possessed there from by the applicant on 11. 8. 1958 (2) whether the land had been mortgaged with the opposite party and had been re-deemed about two years back and had been continuing to be in possession of the applicant since then. The learned trial court held that the disputed land though re-deemed in Svt. 2012, continued to be in possession of the opposite party for two years more at his own request and that this possession could be deemed only to be that of mortgrgee with possession. He further held that as the mortgage money hed been paid the applicant could enter forcibly on the disputed land when the opposite party had not relinquished possession in Svt. 2014 itself and, therefore, the applicant could not be called to have wrongfully dis-possessed the opposite party. On the other hand, the learned trial court held that the applicant had taken possession of the land after expiry of the term for which the opposite party had been allowed to remain in possession thereof. It was also timber held by it that Shri Krishna should have been impleaded as a necessary party in the case. Accordingly, he dismissed the application. In appeal the learned Commissioner Kota observed that as admitted by both the parties the disputed land continued to be cultivated under a mortgage upto svt. 2012 by the opposite party and that he continued to cultivate it for two years more even after payment of the mortgage money in Svt. 2012. He further observed that the main question for determination was whether this possession of the opposite party for two years after the payment of the mortgage money was as a mortgagee or as a tenant. His finding was that having received the mortgage money the opposite party could not be taken to remain in possession as a mortgagee. He, therefore, held this possession of the opposite party to be as a tenant. He further held that it was not necessary to implead the son of the applicant as a party. Accordingly, he held that as a tenant the opposite party could not have been dis-possessed forcibly by the applicant and ordered the re-instatement of the former after setting aside the judgment of the learned trail court. Hence this revision.

(2.) IT has been very vehemently contended on behalf of the applicant that his statement has been mis-read by the learned Commissioner inasmuch as he had failed to take notice of his clear deposition that he had not allowed the opposite party to continue to be in possession of the disputed land after payment of the mortgage money as a tenant, but that he had allowed him to continue remaining in possession at his own request only temporarily. The contention is that the learned Commissioner was therefore entirely wrong in holding opposite party to be a tenant of the disputed land. IT has also been forcibly contended that having paid the mortgage money the applicant had every right to enter back upon the disputed land even by using force, if necessary, and that he could not be called to have committed any trespass thereby. The non-impleading of the minor son of the applicant has also been pleaded to be ratal to these proceedings.