Decided on May 24,1957



- (1.) THIS reference to the Full Bench by a Division Bench of the erstwhile Pepsu High court has arisen in the following manner. One Mal Singh died leaving 150 bighas of agricultural land. He had inherited this land from his father Gurmukh Singh who had obtained it by means of a gift from his father-in-law, Samund Singh. Some of this area was under mortgage and a small portion was unencumbered. An area, 131 bighas 8 biswas, was mortgaged with Ram Narain Singh who is the respondent before us. Another plot of 5 bighas was mortgaged in favour of somebody else and the rest was unencumbered. Mal Singh left no male issue and the State began to take steps for the escheat of the property. Thereupon the collaterals of the donor, Samund Singh, intervened. They are the plaintiffs appellants before us. Their case was that the property after the ending of mal Singh's line had reverted to them because they represented the line of the donor. Gujjar Singh who was a first cousin of Mal Singh and therefore his heir raised no objection to the claim made by Samund Singh's collaterals. The escheat proceedings were stopped and the question of entering a mutation of this land was taken up by the revenue authorities. Smt. Khemi, the daughter of Mal Singh, now raised an objection, but the mutation was entered in favour of the appellants. They obtained possession of the unencumbered land and redeemed the 5 bighas of land which was mortgaged to persons other than those who are parties to the present litigation. Therefore the position then was that the appellants who are the collaterals of Samund Singh were in actual possession of about 19 bighas of land and they were entered as owners of this area. They were also entered as owners of 131 bighas 9 biswas, but their rights consisted only of the equity of redemption in this land. The actual possession of the land was with the defendants because the original mortgage was a mortgage with possession. This was the state of affairs in 1983 Bk. The plaintiffs now took steps to recover possession of the remaining land also, i. e. , the land which is now in dispute. They brought a suit against the present defendants claiming possession of the land on the ground that Mal Singh, the last male-holder had no right to effect a mortgage. They claimed that the land was ancestral qua them. Both these issues were decided against them. It was held that Mal Singh was full owner of the property and the property was not ancestral qua the plaintiffs. Their suit was accordingly dismissed. This decision was upheld by the High Court of Pepsu.
(2.) HAVING been foiled in their effort to oust the defendants, the plaintiffs had recourse to a subterfuge. They made an ostensible transfer of their rights in favour of one Basakha Singh who, on the basis of the entries in the revenue records, applied to the Collector for redemption. This application, however, failed. The application was made in 1999 Bk. Soon afterwards Basakha Singh and the plaintiffs brought a suit for redemption. This was the third attempt to oust the defendants. The plaint in the suit was rejected for nonpayment of court-fee. In the meantime mal Singh's cousin Gujjar Singh sold his rights to the defendants for a sum of Rs. 7,000/- in the year 2000bk. The result of this sale was that whatever rights Gujjar singh possessed were transferred to the defendants-mortgagees. Gujjar Singh being the reversioner of Mal Singh claimed to have the equity of redemption and therefore by this sale the defendants became complete owners of the property mortgaged to them.
(3.) THE plaintiffs now made a fourth attempt to oust the defendants and brought a suit for redemption. It is out of this suit that the present appeal has arisen. This suit was repelled by the defendants who claimed that Gujjar Singh who held the equity of redemption after the death of Mal Singh had sold his rights to them and they (the defendants) had therefore become full owners. They also raised the plea of res judicata contending that this matter had been considered and disposed of in the previous suit brought by the plaintiffs in 1984 Bk. The suit was dismissed, but when the matter came up in appeal to the High Court the plaintiffs sought to raise the plea of adverse possession. The substance of their contention is that ever since 1983 Bk. when the mutation of Mal Singh's land was effected in their favour they have, to the knowledge of Gujjar Singh and his successors-in-interest, been in possession of this and and since their possession has lasted for a period of more than 12 years, it has now matured into ownership, whatever be the decision in the previous cases.;

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