RAKESH KUMAR GARG, J. - (1.) THIS is defendant's second appeal challenging the judgment and decrees of the Court below, whereby suit of the plaintiff- respondent for possession has been decreed.
(2.) IN brief, plaintiff Krishan Lal brought suit for possession seeking possession of agricultural land measuring 7 kanals 4 marlas comprised in Kehwat No. 608, khatoni No. 955, rect. No. 112, killa No. 6/2 situated at village Kakheri, Tehsil Guhla. As per assertion of the plaintiff, he along with proforma defendants No. 4 to 9 are owners of the suit land and defendants No. 1 to 3 are in unauthorized possession of the suit land without the consent of the plaintiff and other co-sharers. It is also alleged that the entries in the revenue record regarding the suit land having been mortgaged etc.are against the factual facts and the defendants have no title, right or interest in the suit land. The defendants has refused to hand over the possession to the plaintiff. Hence the suit. Defendant No. 1 resisted the claim of the plaintiff and inter alia pleaded that the suit is mala fide and mis-conceived, as suit property along with some other properties, has been mortgaged with possession by the predecessor-in- interest of the plaintiff and defendants No. 4 to 9 with the predecessor-in- interest of the defendants for the last more than 100 years. The mortgagor had failed to get the mortgage redeemed within the permissible period of law, as such, the equity of redemption stands vested in the mortgagee by prescription and the mortgagor cease to have any right, title or interest in the suit land mortgaged and the land allotted during the consolidation in lieu of the land so mortgaged. The right of the plaintiff asking for the possession simplicitor is not maintainable. It is further pleaded that defendant No. 1 is bona fide transferee for a consideration in good faith and the defendant purchased the suit land from Madan Lal, who is recorded to be the mortgagee in possession for an amount of Rs. 1,000/- vide registered sale deed No. 203 dated 18.05.1972. The suit of the plaintiff is time barred. The defendant No. 1 is in possession of the suit land for a period of more than 12 years considering himself to be owner of the land in dispute, the possession of the defendant is open, continuous, hostile, to the knowledge of everyone, uninterrupted, without any objection from any quarter, in assertion of his right of ownership and the defendant No. 1 has also become the owner by way of adverse possession. Thus, the defendant No. 1 prayed for dismissal of the suit.
(3.) FROM the pleadings of the parties, the following issues were framed :- "i) Whether the plaintiff is owner of the suit land as alleged ? OPP ii) If issue No. 1 is proved, whether the plaintiff is entitled to a decree for possession as alleged ? OPP iii) Whether the suit of the plaintiff is mala fide and misconceived ? OPD iv) Whether the suit is not maintainable in the present form ? OPD v) Whether defendant No. 1 is a bona fide transferee as alleged, if so its effect ? OPD vi) Whether the suit is time barred ? OPD vii) Relief." ;