GUR SEWAK Vs. LACHHI DEVI
HIGH COURT OF HIMACHAL PRADESH
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KAMLESH SHARMA,J. -
(1.) This is a Regular Second Appeal against the decree and judgment dated 75 -1980 of Additional District Judge, Mandi, whereby the decree and judgment dated 19 -12 -1979 of Senior Sub -Judge, Mandi was confirmed and the suit of Het Ram, Sitlu, Jit Ram and Dhana who were the original plaintiffs was decreed. Sh. Het Ram and Sh. Jit Ram have died during the pendency of the present Regular Second Appeal and their legal representatives have been brought on record.
(2.) The plaintiffs had filed a suit against the appellants -defendants, Sh. Gur Sewak and others for accounts and redemption of mortgage of the suit land under section 6 of the H P. Debt Reduction Act, 1953 (hereinafter called "the Act of 1935"). As per the allegations made in the plaint, the suit land was mortgaged by its the then owners, Sh. Sidhu and others to one Sh. Narathu on 31 -12 -1915 for a consideration of P.s. 18. It was usufructuary mortgage. Later on, the equity of redemption was purchased by the plaintiffs from Smt. Ganai the sole surviving successor -in -interest of the original mortgagors. The defendants are the successors -in -interest of the original mortgagees. It was also averred that the plaintiffs were entitled to the possession of the suit land without any payment as the debt in question, that is, the mortgage amount stood discharged by way of usufruct amounting to Rs. 10, 000 having been received by the mortgagees from 1915 till the date of filing the suit.
(3.) The defendants resisted the suit on the grounds that it was barred by time, the mortgage in question was not subsisting; Smt Gangi was not the sole surviving heir of the mortgagor and the defendants have not purchased the equity of redemption from her as alleged and that they were in possession as tenants even before 31 -121915, besides other preliminary objections. The trial Court dismissed the suit holding it time barred vide its judgment dated 30 -5 -1972. But this judgment was upset in appeal by the District Judge on 27 -11 -1976 and the case was remanded for trial on merits. Later on, the suit was decreed by the trial Court holding that the defendants were not the tenants in the suit land prior to the mortgage which was liable to be redeemed under section 6 of the H. P. Debt Reduction Act, 1953. These findings were confirmed by the District Judge in the appeal filed by the appellants -defendants. The District Judge also examined whether the suit was maintainable under the Act of 1953. So far as the point of limitation is concerned, both the Courts refused to consider it on the ground that it stood finally concluded by the judgment dated 28 -1 -J978 of the District Judge which also operates as res -judicata. Hence the present appeal.;
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