P.D. Sharma, J. - (1.) KAPUR Singh and Ajmer Singh Defendants Nos. 1 and 4 mortgaged with possession their land including the land in dispute, 22 kanals 15 marlas in area, for Rs. 5,500/ - in favour of Kenar Singh deceased father of Defendants Nos. 3 to 5. Subsequently, they mortgaged the land in dispute with possession in favour of Kartar singh the revenue authorities entered two mutations in the revenue records, one redeeming the first mortgage, and the second incorporating the subsequent mortgage, but these could not be sanctioned due to the disputes that had arisen between the parties. The Plaintiff Kartar Singh, consequently instituted the present suit for a declaration that he was a mortgagee with possession of the land in dispute for Rs. 6,500/ - and that the first mortgage had been redeemed. He alleged that the sum of Rs. 6,500/ - was paid by him, vide receipt dated 8th June, 1956, to the mortgagors' who in turn redeemed the first mortgage by paying Rs. 5,500/ - on the same date to the mortgagees and obtained a receipt in token thereof.
(2.) GURDIAL Singh Defendant No. 3 maintained that he along with his two brothers Defendants Nos. 4 and 5 was in possession of the land as mortgagee and that they had not received the mortgage money. He denied the Plaintiff's mortgage. Defendants Nos. 1 and 2, however con -ceded having mortgaged the land for Rs. 5,500/ - and not for Rs. 6,500/ - in favour of the Plaintiff and further pleaded that the earlier mortgage had been redeemed by them on payment of Rs. 5,500/ - to Defendants Nos. 3 to 5. According to them out of the land which had been mortgaged with Defendants Nos. 3 to 5, three kilss were in possession of the Plaintiff as mortgagee and the remaining four kilas were in their occupation. From the pleadings of the parties the following issues were settled: (1) Whether Defendants Nos. 1 and 2 mortgaged the land in suit with the Plaintiff for Rs. 6.500/ - (2) Whether the amount of Rs. 5,500/ - the mortgage money, had been paid by the Plaintiff through Defendants Nos. 1 and 2 to Defendants Nos. 3 to 5? (3) Whether the suit in. the present form does not (4) Relief.
(3.) THE learned trial Judge decided issue No 1 in favour of the Plaintiff and issue No. 3 against the Defendants. Issue No. 2 was found against the Plaintiff. the suit was dismissed. The learned Senior subordinate Judge on appeal set aside the judgment and decree of the trial Court find granted Plaintiff the decree prayed for with costs against the Defendants. The first mortgagees, Defendants Nos. 3 to 5, preferred an appeal against the judgments and decree of the learned Senior subordinate Judge to this Court which came up for hearing before. Khanna J.;