R.L. Anand, J. - (1.) This is a defendant's appeal and has been directed against the judgment and decree dated 3.9.2001 passed by the Additional District Judge, Sirsa, who, affirmed the judgment and decree dated 11.9.1997 vide which the suit of the plaintiff was decreed and a decree for declaration to the effect that the order dated 9.1.1991, passed by the Sub -Divisional Officer (Civil) Sirsa exercising the power of Collector, Sirsa, is illegal, without jurisdiction, null and void and the same was set aside and it was further directed by the trial Court that the plaintiff and proforma defendant have become owners in possession of the suit land. The trial Court also granted a decree of permanent injunction restraining the defendants from interfering into the cultivating possession of the plaintiff and proforma defendant.
(2.) Some facts can be noticed in the following manner. It is alleged by the plaintiff Boota Singh that he and proforma defendant Ghel Singh are the sons of Smt. Ant Kaur. She was mortgaged in possession of land measuring 445 Kanals 16 Marias. The land was mortgaged with possession with Smt. Ant Kaur by the defendants and mutation was sanction on 13.2.1959. Smt. Ant Kaur continued to be in possession over the land in question during her life time and the rights were inherited by her sons after she was no more. Her name still appears in the record of rights as a mortgagee in possession of the property in question. It was further averred by the plaintiff that the defendants had moved an application before the Collector, Sirsa on 9.6.1989 for redemption of the mortgage. Their request was allowed by the Collector vide order dated 9.1.1991. The order was challenged by the plaintiff in the civil suit on the ground that the land had been mortgaged on February 13, 1959 but it was not redeemed within a stipulated period of 30 years and the mortgagee has thus acquired ownership rights over the property in question. The Collector had ceased to have jurisdiction to decide the matter in respect of redemption of mortgage after the expiry of the period of limitation of 30 years. Thus, the plaintiff Shri Boota Singh has sought a declaration that he and defendant Shri Ghel Singh have become the owners of the property by efflux of time and defendants be restrained from interfering in their possession.
(3.) Notice of the suit was given to the defendants and they contested the suit. It was alleged by the defendants that mortgage was redeemed by Shri Gurcharan Singh in the lifetime of Smt, Ant Kaur, his own daughter. It has also been averred by the defendants that after the redemption, the possession of the property in question was taken by the mortgagor. However, mutation of redemption was not entered due to some inadvertence. According to the defendants they are in possession of the land in question as owners. It was further averred by the defendants that the parents of Boota Singh and Ghel Singh had expired and they were brought up by defendant Gurcharan Singh who was their maternal grandfather. It was also averred that a piece of land was given to them by defendant Gurcharan Singh for being used as their residence in the year 1984. Gurcharan Singh also spent a huge amount on the marriage of plaintiff Boota Singh. It was further averred by the defendant that application for redemption of mortgage was moved with the consent of Boota Singh and Ghel Singh on the advice of their counsel Ch. Uda Ram, Advocate, Sirsa. Proforma defendant Ghel Singh had made a statement in favour of the defendants but Shri Boota Singh did not make any statement on account of greed. Further it was averred by the defendant that the land was mortgaged for a sum of Rs. 1600/ - in the year 1959. The land remained in possession with Shri Tehal Singh. However, the mortgage in favour of Tehal Singh was redeemed in the month of December, 1959 and the possession was handed over by Shri Tehal Singh to Smt. Ant Kaur on 18.12.1959, the date on which mutation of mortgage was sanctioned. It was further pleaded by the defendants that mutation of mortgage sanctioned on 13.2.1959 was wrong.;