Dua, J. - (1.) These two appeals (Regular First Appeal No. 18 (P) of 1952 and First Appeal from Order No. 13(P) of 1952) have been referred by Ram Gopal plaintiff in the following circumstances. Somewhere in 1914 and 1915 (the Bikrami date being 4-3-1972) Karam Chand son of Ganga Ram mortgaged the property in suit without possession in favour of Nand Lal for a sum of Rs. 3,500/-; one of the terms of the mortgage being that in case of non-payment of interest in any one month the mortgagee would be entitled to take possession of the property and to rent it out to anyone he liked. It was attested by Kishan Chand real younger brother of Karam Chand and the document was duly registered at Kapurthala, Karam Chand died sometime in 1919, whereafter Nand Lal mortgagee instituted a suit for possession of the mortgaged property against Kishan Chand. This suit was decreed by means of a compromise under which NandLal obtained possession and the amount due under the mortgage was determined to be Rs. 6,136/-. On 27-10-2001 Bk. (corresponding to 8th February, 1945) Smt. Surat Piari, daughter of Karam Chand and wife of Dalip Singh, told to the present plaintiff-appellant the mortgaged property for a sum of Rs. 13,000/-. This sale deed purports to be executed by Dalip Singh husband of Smt. Suran Piari as her mukhtar-i-am. In this deed a specific reference was made to a General Power of Attorney executed by his wife in his favour on 2nd of January 1945 authorising him inter alia to sell the property in question. After this sale the plaintiff instituted the present suit for redemption of the mortgage effected by Karam Chand. It appears that sometime in 1948 (Bikrami date being 12-82005) Kishan Chand also instituted a suit for redemption which was continued by his widow, Smt. Harbans Kaur, on Kishan Chand's death. Ram Gopal present plaintiff applied in Kishan Chand's suit for being made a party but this prayer was rejected. It seems that thereafter Smt. Harbans Kaur was duly impleaded in the present suit. It may also be mentioned that the General Power of Attorney dated 2nd of January 1945 executed by Smt. Surat Piari in favour of her husband Dalip Singh for the purposes of filing suits on her behalf and also empowering the attorney to sell, mortgage, gift or alienate her property referred to in the sale deed in favour of Ram Gopal plaintiff-appellant was registered in the office of the Sub-Registrar, Nakodar, on the same day i.e. 2nd of January 1945. The suit was contested and the pleadings of the parties gave rise to no less than the following 12 issues:- Was the property in dispute mortgaged by Karam Chand on 4-31972 with Nand Lal, the grandfather of the defendants Mohan Lal, Tikan Lal and Durga Dass for Rs. 3,500/- ? 1.Has the property in dispute been sold by Mst. Surat Piari, the daughter of Karam Chand, in favour of the plaintiff on 27-10-2001 after Karam Chand's death ? 2.Were the two real brothers Karam Chand and Kishan Chand deceased not members of a joint Hindu family and the property in dispute was not their joint Hindu family property but was rather the sole property of Karam Chand. 3.Was Kishan Chand, the brother of Karam Chand and the husband of Mst. Harbans Kaur defendant, in exclusive possession of the property in dispute since the death of Karam Chand and so Mst. Surat Piari had no right to sell the property in favour of the plaintiff ? 4.Could the property in dispute not be sold otherwise also by Mst. Surat Piari, the daughter of Karam Chand, in favour of the plaintiff on Karam Chand's death. 5.Was Dalip Singh who executed the sale deed in favour of the plaintiff a duly appointed Mukhtar of Mst. Surat Piari and so the sale deed in question was validly executed by him ? 6.Is the verification of the plaint defective and so it needs an amendment ? 7.Is the present suit time-barred ? 8.If issues Nos. 1 to 8 are decided in favour of the plaintiff, did the defendants Mohan Lal, Tikan Lal and Durga Dass spend any amount by way of repairs etc. on the mortgaged property and what was the amount and are they entitled to recover it ? 9.Did L. Nand Lal, the grandfather of the defendants Mohan Lal, Tikan Lal and Durga Dass institute a suit against Kishan Chand as stated in the written statement and obtain a decree on the basis of compromise for S. 6,727/5/3 with a stipulation that till the payment of the said amount the property mortgaged which is in dispute now would remain in the possession of L. N and Lal and the latter would be entitled to effect repair etc. of the same and to charge that amount with interest ? 10.In case issue No. 10 is proved, is the present plaintiff Ram Gopal bound by the decree mentioned in issue No. 10 and if not bound then what is the effect of that decree on the present suit ? 11.Is the plaintiff entitled to the amount of Rs. 1,000/- or any lesser amount claimed by him in the suit ?
(2.) The learned Subordinate Judge dismissed the suit on the basis of the following findings: 1. The property in suit was mortgaged by Karam Chand in favour of Nand Lal for Rs. 3,500/-. 2. The sale deed was executed by Dalip Singh on behalf of Smt. Surat Piari in favour of the plaintiff-appellant after the death of Karam Chand. 3. The sale deed could not be validly executed by Dalip Singh on behalf of his wife because its authentication was not in accordance with sections 32 and 33 of the Indian Registration Act. 4. Smt. Surat Piari could be entitled to sell the property of Karam Chand if she was in possession thereof as heir or if the property vested in her after father's death; on the present record there is no evidence that Smt. Surat Piari ever came into possession of the property in suit or of any other property belonging to the estate of Karam Chand. The Court concluded that in these circumstances Smt. Surat Piari had no right to pass the title of the property in suit. 5. There was no partition in the family of Karam Chand and Kishan Chand, sons of Ganga Ram, the property in question having admittedly descended from Ganga Ram. The Court also noticed that Karam Chand and Kishan Chand had a third brother Hukam Chand who left two daughter Karam Devi and Kishan Devi has issues. Neither Smt. Surat Piari nor the daughters of Hukam Chand nor even the daughters of Karam Devi ever came into possession of the property in suit. The Court in the circumstances came to be conclusion that Kishan Chand got his property by survivorship and that Smt. Surat Piari never got its possession. Smt. Surat Piari was found to be a minor of about 4 years when Karam Chand died, but on attaining majority also she i.e. Smt. Surat Piari did not care to get possession of the property. 6. Kishan Chand, if he did not get the property by survivorship, was a trespasser and his adverse possession began in Samvat 1986, and 7. Nand Lal had secured a decree on the basis of compromise for a sum of Rs. 6,727/5/3 with a stipulation that in case of delay in payment of the said amount, the property would remain in the possession of Nand Lal. On these findings, as already observed, the plaintiff's suit was dismissed. An appeal was preferred in the Court of the District Judge because the jurisdictional value was originally fixed at Rs. 3,500/-. The learned District Judge by his order dated 28th March 1952 directed the memorandum of appeal to be returned to the plaintiff for presentation to the proper Court because, in his opinion, the true jurisdictional value being above Rs. 5,000/- the appeal did not lie in his Court. This appeal was they re-presented in the High Court at Patiala and registered as Regular First Appeal No. 18-P of 1952. While admitting the appeal Chopra J. stated in the admitting note that the question of limitation would be decided at the hearing. The order of the learned District Judge returning the memorandum of appeal to be presented to the proper Court has been assailed in First Appeal from Order No. 13-P of 1952. Both these appeals have come up before us for disposal.
(3.) Mr. Atma Ram, the learned counsel for the appellant, however, stated at the Bar that if the regular first appeal (No. 18-P of 1952) is heard on the merits and the respondents do not object to the extension of limitation then he would not press First Appeal from Order No. 13-P of 1952. The respondents have expressly stated that they do not want to raise any objection on the score of limitation with respect to the regular first appeal and, in my opinion, rightly, with the result that First Appeal from Order No. 13-P of 1952 has not been pressed and is, therefore dismissed without any costs.;