- (1.)This appeal under para-graph 32 of the Himachal Pradesh (Courts) Order, 1948, is against the decree and judg-ment dated 28-9-1976 passed by the District Judge, Solan and Sirmaur Districts at Solan whereby the appeal of respondents-plaintiffs Nos. 1 to 3, S/Sh. Gita Ram, Mansha Ram and Jawala Dutt, was accepted, the decree and judgment dated 23-4-1975 of Senior Sub-Judge, Solan, District Solan, was set aside and a decree for possession of the suit land by way of redemption of mortgage was passed in their favour and against the appellants-defendants. Out of appellants-defendants, appellants-defendants Nos. 1 to 7, S/Sh. Ranbir Singh, Raghubir Singh, Balbir Singh, Kumari Asha Devi, Kumari Manju, Smt. Amar Devi, Smt. Munna and appellant-defendant No. 9, Smt. Kamla Devi, are the legal representatives of original defendant Sh. Devi Ram son of Sh. Mast Ram alias Mastia son of Surat Ram, original mort-gagee. Similarly, appellant-defendant No. 10, Smt. Dropti Devi, is the daughter of Smt. Sobhni Devi, original defendant, widow of Sh. Janki Ram son of Sh. Surat Ram, original mortgagee. Appellant-defendant No.8 Bha-rat Ram is son of Mast Ram son of Surat Ram, original mortgagee.
(2.)The present appeal has a chequered history. On 1-9-1969, respondents-plaintiffs Nos. 1 to 3, S/Sh. Gita Ram, Mansha Ram and Jawala Dutt filed civil suit against Smt. Sobhni widow of Janki Ram, Devi Ram son of Mast Ram, predecessor-in-interest of appellants-defendants Nos. 1 to 7, 9 and 10 and appellant-defendant No. 8 Bharat Ram, for possession of suit land by way of re-demption of mortgage. It was alleged in the plaint that respondents-plaintiffs S/Sh. Gita Ram, Mansha Ram and Jawala Dutt and pro forma respondents-defendants, S/Sh. Jamna Dutt, Leela Dutt and Nandu were the owners of the suit land which had been mortgaged with possession by their predecessor-in-interest with the predecessor-in-interest of Smt. Sobhni widow of Sh. Janki Ram, original defendant No. 1 and father of original defendants Nos. 2 and 3, S/Sh. Devi Ram and Bharat Ram, in equal shares vide mutation, Ex. P-A, dated 26-2-1910 for Rs. 450.00. The further case of respondents-plaintiffs Nos. 1 to 3 was that Smt. Sobhni widow of Janki Ram original defendant without the consent of the mortgagors had inducted S/Sh. Devi Ram and Bharat Ram, original defendants Nos. 2 and 3, as tenants on her half share of the mortgaged land who had further inducted respondents-defendants Nos. 4 to 6, Department of Agriculture, Sh. Puran and Smt. Surmi as tenants on part of the suit land without the permission of the mortgagors. It was claimed by the respondents-plaintiffs that these tenancies were not binding on them and would auto-matically come to an end on redemption of mortgage. The suit was resisted by the original defendants Nos. 2 and 3, S/Sh. Devi Ram and Bharat Ram, who inter alia raised the objection that the suit was barred by limitation and the mortgagees had become owners of the suit land (sic). This defence weighed with the trial court and the suit was dismissed vide decree and judgment dated 28-1-1970 holding that the suit was beyond the period of limitation of sixty years.
(3.)In appeal, the then District Judge, Shimla vide his order dated 6-7-1971, allowed amendment of the plaint, set aside the decree and judgment of the trial Court and re-manded the suit for possession on merits after taking the amended plaint on record, giving an opportunity to the defendants to file their written statement to the amended plaint and giving an opportunity to the parties to adduce evidence on Issue No. 4 which was "whether the suit was within limitation". By way of amendment of the plaint, the following additions were made in para 6 of the plaint :- "That the suit is within time as Mastia son of Surat Ram and Surat Ram mortgagee and Mst. Khairi mortgagor all have signed the said report and acknowledged the factum of mortgage and this suit under Section 18 of Indian Limitation Act is within limitation."