IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 4967 of 2009 (O&M) Date of decision: December 06, 2011 Hoshiar Singh .. Appellant Vs. Nopbai and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Sanjay Mitttal, Advocate for the appellant. Mr. Parmod Parmar, Advocate for the respondents. A.N. Jindal, J The trial court vide judgment and decree dated 20.10.2007 decreed the suit of the plaintiffs- respondents (herein referred as, 'the plaintiff') whereupon the defendant-appellant Hoshiar Singh (herein referred as, 'the defendant') preferred the appeal which was also dismissed by the appellate court vide judgment dated 6.6.2009. The plaintiffs No. 1 to 7 had filed a suit for possession by way of redemption, inter alia on the allegations that they had mortgaged the land as fully detailed in the heading of the plaint, in favour of the defendants No.1 and 2, vide registered mortgage deed No.564 dated 16.3.1979 for consideration of `6000/-. It has also been alleged that they along with other co-sharer being mortgagees over the land for the last more than 100 years had becomes owners by way of foreclosure after the expiry of the period of redemption. The plaintiff No.1 had sought redemption of the suit property from the defendant No.1 ( now defendant- respondent No.8), but Hoshiar Singh defendant No.3- appellant (herein referred as, 'the appellant') had filed the objections claiming themselves to be mortgagees under the defendants No.1 and 2. As such, vide order dated 12.9.2003 his application was dismissed by the Commissioner with the observations that the matter was of complex nature and could be decided by the civil court. Thus, the plaintiff No.1 eventually had filed a suit on the allegations that he having mortgaged the property in favour of the defendants No.1 and 2 for `6000/- was entitled to seek redemption from them and they had no right to R.S.A. No. 4967 of 2009 (O&M) -2- *** mortgage the land to the defendant No.3 as he sought to confirm the order passed by Collector dated 12.9.1997 and challenged the subsequent orders dated 20.4.2001 and 20.9.2003 as illegal. It was further pleaded that the defendants No.1 and 2 had sub- mortgaged the suit property to defendant No.3 by mortgage deed No.1156 dated 17.9.1990 for consideration of `39,500/- without any right or authority and the remedy, if any, available to the defendant No.3 was to recover the mortgaged amount of `39500/- from the defendants No.1 and 2. Upon notice, the defendants No.1 and 2 did not put in appearance, whereas, the defendant No.3 (now appellant) contested the cause by filing written statement while admitting that earlier the dispute property was mortgaged in favour of the defendants No.1 and 2 by Sheobai and others and the plaintiffs No.3 to 7 have no concern with the ownership and possession of the property in dispute. They also admitted that the plaintiffs had moved an application for redemption before the Collector. The defendant No.3 had appeared and opposed the redemption by filing objections. The matter went up to the Commissioner who vide order dated 12.9.2003 had directed the parties to get the matter decided from the civil court. In the alternative the defendant No.3 claimed that he being in possession over the suit land since 17.9.1990 has become owner by way of adverse possession. It was also averred that the order passed by the Collector was not correct; the suit is time barred and the plaintiffs No.3 to 7 have no concern with the suit land. On the basis of the pleadings of the parties, the following issues were framed by the trial court vide order dated 23.8.2004 :- 1. Whether the plaintiffs are entitled for possession by way of redemption of suit land vide order of Collector Sub Divisional Mahendergarh dated 12.9.1997 and order of Collector dated 20.4.2001 and order of Commissioner dated 12.9.2002 is null and void?OPP 2. Whether the defendant No.3 has become owner by way of adverse possession as alleged?OPP 3. Whether the suit is not maintainable?OPD R.S.A. No. 4967 of 2009 (O&M) -3- *** 4. Whether the suit is time barred?OPD 5. Whether the plaintiffs, have no right to file the present suit?OPD 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 7. Relief. Both the parties led evidence. Ultimately the trial court decreed the suit of the plaintiff with costs. The defendants No.1 and 2 who were proceeded against ex-parte never challenged their mortgagee right and also did not prefer any appeal, whereas, the defendant No.3, who had no contract with the plaintiffs have preferred the present appeal. The admitted case of the parties is that the plaintiffs No.1 and 2 are proved to be the mortgagees and they claimed themselves to be the owners by way of efflux of time. The defendant No.3- appellant who had no privity of contract with the plaintiffs No.1 and 2 could not challenge this averment set up by the plaintiffs No.1 and 2 particularly when the defendants No.1 and 2 who were mortgagees under the plaintiffs No.1 and 2 did not come forward to contest the cause. The redemption order Ex.P12 was passed against the defendants No.1 and 2 by the Collector on 12.5.1996 but the defendant No.1 and 2 also did not challenge the said redemption order. However, Hoshiar Singh defendant No.3 filed the objections where upon vide order dated 12.9.2003, the Commissioner decided that the question being of intricate nature should be decided by the civil court. As such, the plaintiff filed the present suit. It is also well settled by now that in the absence of any privity of contract of mortgage between the defendant No.3 and the plaintiffs his rights were to sink and swim with the rights of the defendants No.1 and 2 who were admittedly the mortgagees under the plaintiff, therefore, the plaintiffs being the mortgagors had every right to get the land redeemed from the defendants No.1 and 2 which they got redeemed the same. The mortgage in favour of the defendants No.1 and 2 by the plaintiff was only for `6000/-, therefore, the plaintiffs certainly were entitled to recover the possession after making payment of `6000/- and the R.S.A. No. 4967 of 2009 (O&M) -4- *** defendant No.3 could not compel the plaintiff to pay `39500/- which he had paid to their mortgagors (i.e. mortgagees of plaintiffs No.1 and 2) and it is only the defendants No.1 and 2 who may be liable for any liability which they had incurred. Now coming to the other plea of adverse possession, when once the appellant has taken the plea of being mortgagee, he cannot blow hot and cold in the same breath and claim himself to be in adverse possession. No question of law much less substantial question of law arises in this case for determination. No grounds to interfere. Dismissed. December 06, 2011 (A.N. Jindal) deepak Judge