Birendra Singh Yadav, J. - (1.) RESPONDENT Nos. 1 to 6 had filed this suit against the Appellant Ram Nath Singh and Respondent No. 7 Gurditta for a declaration that they were owners of the suit land and the Defendants had no connection with it nor had any right of redemption therein and the entries in the revenue papers were wrong. They also prayed for joint possession of the suit land as a consequential relief. According to the averments in the plaint, Jai Ram and Hari Kishan were owners (they were in fact occupancy tenants) of 1 /5th share in the land comprised in Khashra detailed in para No. 1 of the plaint. They mortgaged their share with possession in favour of Amar Chand and Hans Raj for Rs. 1300/ - on 10th February, 1914, vide a registered deed and delivered possession of the land to them. Amar Chand transferred his share in the mortgagee rights in favour of Hans Raj, the other Co -mortgagee and thus the latter became the sole mortgagee. During consolidation proceedings which took place in the year 1951 -52 Hans Raj transferred half share of his mortgage rights in favour of Babu Ram (Plaintiff No. 1, now Respondent No. 1). Hans Raj has since died and Plaintiff Nos. 2 to 5 were his successors -in -interest. Both Jai Ram and Hari Kishan, original mortgagors, have also died and the Defendants, who are their brothers, have inherited their rights and have thus became mortgagors of the land. During consolidation proceedings, the suit land was allotted in view of the mortgaged land and the Plaintiffs became its mortgagees. Under the Limitation Act, 1963, the mortgagors could have redeemed the land upto December, 1968. As it has not been done so, the Plaintiffs have become owners of the land by efflux of time and the Defendants have lost their right of redemption. However, about two years prior to the filing of the suit the Defendants took illegal possession of the suit land. Hence, the suit.
(2.) THE suit was contested only by Defendant No. 1. He pleaded that the original mortgage had been created by Jai Ram and Hari Kishan in favour of Amar Chand only and subsequently Amar Chand had transferred the mortgage rights in favour of Hans Raj. Amar Chand was not given possession of the mortgaged land nor Hans Raj ever came into possession of the land. Babu Ram the alleged transferee of half share of Hans Raj in the mortgagee rights, also never came into possession of the suit land. Upon the allegations of the parties, the learned trial Court framed the following issues: 1. Whether the Plaintiffs were the mortgagees with possession of the suit land ? 2. Whether the Plaintiffs have become owners of the suit land by efflux of time ? 3. Whether the land in suit has been allotted during consolidation proceedings in lieu of the land originally mortgaged ? 4.RELIEF .
(3.) Under issue No. 1, it was held that the land had been mortgaged with Amar Chand and Hans Raj and later on Amar Chand had transferred his mortgagee rights in favour of Hans Raj and thereafter Hans Raj had transferred half share of the mortgagee rights in favour of Babu Ram. It was further held that Hans Raj and Babu Ram were in possession of the suit land. It was also remarked that no specific khasra number was mortgaged and only a share in the land had been mortgaged and thus Hans Raj and Babu Ram became joint owners alongwith other owners of the suit land and as the possession of one co -sharer is deemed to be on behalf of all the co -sharers, therefore, the mortgagees would be deemed to be in possession. Accordingly issue No. 1 was decided in favour of the Plaintiffs Under issue No. 2 it was held that the mortgage in question was created in 1914 and in view of the new Limitation Act (i.e. Limitation Act, 1963) the mortgage could have been redeemed upto 31st December, 1970 and as it had not been done so, the mortgagors' rights of redemption had been extinguished and the Plaintiffs have become owners of the suit land by of the of time. Under issue No, 3 it was held that the suit land had been allotted in lieu of the land mortgaged to Hans Raj and Amar Chand. the original mortgagees. As a result of the above findings, the Plaintiffs' suit was decreed Feeling aggrieved, Ram Nath Singh (contesting Defendant) filed an appeal which was heard by learned Senior Subordinate Judge (with Enhanced Appellate Powers), Hoshiarpur. He confirmed the findings of the learned trial Court and dismissed the appeal. Ram Nath Singh has now come to this Court in second appeal.;