RAKESH KUMAR JAIN,J - (1.) DEFENDANT No. 1 Arjan Singh is in second appeal against the judgment and decree of learned Addl. District Judge (Adhoc) Fast Track Court, Amritsar, dated 30.5.2008 by which the suit of the plaintiff was decreed and the judgment and decree of the Civil Judge (Senior Division) Amritsar dated 27.7.2004 was set aside.
(2.) THE learned counsel for the appellant has raised following questions of law in this appeal. (i) "Whether in a suit, if one of the issues is decided against the defendant but the suit of the plaintiff is dismissed and no appeal is filed by the defendant to challenge that issue though right to appeal is available, whether finding on the issue decided against the defendant would operate as res- judicata ?" and (ii) "Whether an issue deciding the title of the parties to a property is a substantial issue and shall attract the provisions of Section 11 of the C.P.C., if it is not challenged in appeal by the defendant inspite of the fact that the suit of the plaintiff is dismissed ?". In brief, the facts of the case are that Jowala Singh son of Attar Singh mortgaged the land bearing pre-consolidation number with Beant Singh, Surain Singh, Narain Singh and Bhagat Singh. Narain Singh died leaving behind no legal heir. Bhagat Singh died leaving behind Santa Singh as his legal heir. Santa Singh died leaving behind no child. The property was inherited by their brother Beant Singh and Surain Singh. Surain Singh died leaving behind Mohinder Singh (defendant No. 2), Taro (defendant No. 3) and Gejo (defendant No. 4). Beant Singh left behind Arjan Singh (defendant No. 1). Beant Singh's brother Darshan Singh also died without leaving behind any legal heir. In this case, Arjan Singh (defendant No. 1/appellant) is the mortgagee to the extent of 1/2 share and the remaining 1/2 share was under mortgage with Mohinder Singh (defendant No. 2), Taro (defendant No. 3) and Gejo (defendant No. 4). The mortgage deed dated 26.3.1923 was in respect of 84 kanals of land for an amount of Rs. 4,500/-. The land in question was irredeemable for 60 years. Jowala Singh (mortgagor) died leaving behind Ujjagar Singh, his adopted son as his legal heir. Ujjagar Singh also died leaving behind his sister Isso. Isso too had died leaving behind her legal heirs Datto and Puran Singh. Puran Singh died on 16.8.1994. Datto also died leaving behind Bachan Singh (plaintiff) as her son. Inheritance of Puran Singh devolved upon the plaintiff vide mutation No. 953. Thus, the plaintiff is the mortgagor of the suit land, out of which, 1/2 share of the mortgaged land in the hands of Mohinder Singh (defendant No. 2), Taro (defendant No. 3) and Gejo (defendant No. 4) has already been redeemed and is now claiming to redeem 1/2 share of the land from Arjan Singhdefendant/appellant No. 1 on payment of Rs. 2250/- i.e. 1/2 share of the total mortgage amount of Rs. 4500/-.
(3.) ONLY defendant No. 1.contested the suit and filed the written statement taking preliminary objection that the plaintiff has no right, title or interest in the suit property. On merit, it was submitted that plaint is vague because complete particulars of the mortgaged property were not given. Defendant No. 1 proclaimed himself to be the owner and denied that 1/2 share was inherited by Mohinder Singh (defendant No. 2), Taro (defendant No. 3) and Gejo (defendant No. 4) . It was also claimed that he had become the owner of the suit property by lapse of time and thus prayed that suit be dismissed.;