Kapur, J. - (1.) This appeal is brought by the plaintiff against an appellate decree of District Judge Sher Singh varying the decree of the trial Court in regard to defendant No. 5 Jugal Kishore and thus dismissing the suit against him.
(2.) On the 23rd of February 1916 the plaintiff mortgaged the haveli in dispute to Balak Ram father of defendants 1 to 4 for a sum of Rs. 300/-. The mortgage was with possession and the mortgagee was to have the rents and profits and also interest. The plaintiff on the 25th November 1947 brought a suit for redemption against defendants 1 to 4 as representatives of the mortgagee and against Jugal Kishore defendant No. 5. It was alleged in the plaint in paragraph No. 5-- "Jugal Kishore is in possession on the plea that he is a transferee which the plaintiff does not accept but if there is a transfer I am not bound by it. In order to settle disputes the defendant No. 5 has been made a 'pro forma' defendant."
(3.) Defendants 1 to 4 pleaded that the property had been redeemed and they had delivered possession to the plaintiff and the reply of Jugal Kishore defendant No. 5 was that he had been in adverse possession for 25 or 30 years and also that he had made improvements. He also pleaded that the plaintiff had not been in possession within twelve years. The trial Court framed the following issues: 1. Whether the plaintiff is the owner of the property in dispute? 2. Whether the mortgage in suit was redeemed and when? 3. Whether the adverse possession of the defendant No. 5 for more than twelve years has ripened into ownership? 4. Whether the plaintiff was dispossessed within twelve years from the date of the suit? 5. Whether the defendant No. 5 has made any improvements in the property in suit; if so at what costs and in case of a decree in plaintiff's favour is he entitled to recover that amount from him? 6. Relief. And it held that the plaintiff was the owner of the property, that the mortgage had not been redeemed, that defendant No. 5 had not proved any adverse possession and therefore the question of dispossession within twelve years did not arise and there was no evidence that any improvements had been made and as to what their cost was. It therefore decreed the plaintiff's suit.;