KIRPU RAM (DECEASED) THROUGH HIS L.RS.SMT.KAULA DEVI Vs. KANSHI RAM (DECEASED) THROUGH HIS L.RS SMT.ROOKO DEVI
LAWS(HPH)-1991-3-8
HIGH COURT OF HIMACHAL PRADESH
Decided on March 07,1991

KIRPU RAM (DECEASED) THROUGH HIS L.RS.SMT.KAULA DEVI Appellant
VERSUS
KANSHI RAM (DECEASED) THROUGH HIS L.RS SMT.ROOKO DEVI Respondents

JUDGEMENT

DEVINDER GUPTA,J. - (1.) This is defendants appeal against the judgment and decree passed on September 22, 1984 by District Judge, Hamirpur and Una Districts at Hamirpur, dismissing his appeal and thereby confirming the judgment and decree passed on October 28, 1981 by Sub -Judge, First Class, Hamirpur, decreeing the suit of the plaintiff -respondent No. 1, wherein a decree for possession was granted in favour of plaintiff -respondent No. I.
(2.) Kanshi Ram, plaintiff -respondent, who has since died during the pendency of the appeal and is represented by his legal representative, Smt. Rooko Devi, the widow, filed a suit claiming a decree for declaration that he was owner in possession of the land after having redeemed the same on July 23, 1967 by duly paying the mortgage amount to mortgagees defendant s -respondents No. 2 to 4 and that despite such redemption entries in revenue records were still showing the property under mortgage with respondents No. 2 to 4 and that taking undue advantage of such wrong entries in the records, threats were being advanced by the defendants to interfere with his possession, therefore, by way of consequential relief decree for prohibitory injunction was claimed by him and in the alternative decree for possession was also claimed. Kirpu Ram, appellant, was arrayed as defendant No. 4, who alone contested the suit on various pleas, one of which was that he had been in actual possession of the suit property since prior to the mortgage and despite the redemption he still continued to be in occupation of the property as a tenant under the plaintiff and was not liable to be evicted and that suit for recovery of possession was not maintainable in civil court. The trial Court held the appellant to be a tenant inducted by the mortgagees during the continuance of the mortgage and further held the mortgage to have been redeemed and that on redemption, rights of appellant as a tenant inducted by mortgagees came to an end and that plaintiff was entitled to a decree for actual delivery of possession. Feeling aggrieved, appellant preferred an appeal before the lower Appellate Court, which was dismissed and the judgment of the trial Court was confirmed by holding the appellant to have been inducted on the property by mortgagees during subsistence of mortgage and further holding that there was no evidence on record not pleadings to the effect that it was an act of prudent management on the part of the mortgagees to have inducted the appellant as a tenant, therefore, he was not entitled to any protection. The appellant filed the present appeal against the said judgment and decree of the Courts below.
(3.) The appeal was admitted by this Court or the following questions of law: - "1. Whether the receipt Ex. PW 3 -A was admissible in evidence to prove the redemption of mortgage created by respondent No. 1 in favour of respondents 2 to 4 ?;


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