IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 262 of 1997 Reserved on: 03.05.2010 Date of decision: 19.05.2010 Jamuna Devia @ Leelawati and others ... Appellants Versus Deep Ram and others … Respondents Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellants: Mr. Subhash Sharma, Advocate. For the respondent: Mr. G.D. Verma, Senior Advocate with Mr. B.C. Verma, Advocate, for respondents No. 1 to 17 and 27. V.K. Ahuja, J. : This is a Regular Second Appeal filed by the appellants against the judgment and decree of the Court of learned District Judge (Forest), Shimla, dated 30.8.1997, vide which the suit of the respondents for declaration has been decreed and the judgment and decree passed by the learned trial Court i.e. the Court of Sub Judge 1st Class, (II) Shimla, dated 31.8.1985 was set aside. Briefly stated, the facts of the case are that the respondents here-in-after referred to as ‘the plaintiffs’ filed a suit for declaration and permanent injunction as against the appellants here- in-after referred to as ‘the defendants’. It was alleged by the 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 plaintiffs that the land measuring 54 Bighas 10 Biswas as detailed in the plaint is shown under mortgage with the plaintiffs and proforma defendants and possession of these Khasra Numbers is recorded in the name of mortgagees. It was further alleged that part of the land measuring 6 Bighas 9 Biswas is recorded in the possession of owners and partly in the possession of mortgagees in equal shares. Thus, it was alleged that the total suit land is in exclusive possession of plaintiff No. 1, who is in possession since long. The land was originally owned by Paras Ram, who had transferred this land to one Ranjeet Singh. However, prior to this, this land had already been mortgaged with possession through a registered mortgage deed executed in the month of February, 1948 and this mortgage was effected for a total consideration of Rs.2200/- in favour of S/Shri Devi Ram, Het Ram, Narainu, Jiwanoo alias Jeet Ram, Lachhmi Singh and Chet Ram. It was created with possession in favour of Shri Devi Ram etc. It was further alleged that subsequently the original mortgagor Paras Ram sold his ownership rights in the total mortgaged land to Ranjeet Singh through a registered sale deed. The mortgagor had allegedly delivered possession to the then mortgagees in the year 1947. The land was subsequently purchased by Ranjeet Singh who stepped into the shoes of Paras Ram. The said Ranjeet Singh died and was succeeded by his mother Smt. Lachhmi and widow Smt. Bimla and mutation of inheritance was attested in their favour in 1978. The time for redemption of the mortgage expired in February, 1978 and thus, the mortgagees have alleged that they became exclusive owner thereof. The original mortgagees 3 had been succeeded by the persons named in Para-7 of the plaint. It was alleged that the entries in the revenue record showing owners after February, 1978 is illegal and inoperative as against the defendants after expiry of period of limitation for redemption. Thus, it was alleged that successors of the original mortgagees have become owner of it. Smt. Jamna, the successor-in-interest of Ranjeet Singh executed a gift deed in favour of defendant Ram Swaroop on 13.2.1980, which is wrong and illegal and they are trying to get mutation attested in their favour, which gift deed is liable to be declared null and void. It was alleged that the land had been coming in physical possession of plaintiff No.1 alone since the time of original mortgage, as defendants No. 1 and 2 are threatening to interfere with the peaceful possession of plaintiff No.1 and to take forcible possession of the land in dispute, hence a suit for declaration and permanent injunction filed by the plaintiffs. Defendants No. 1 and 2 took up preliminary objections in regard to maintainability, estoppel etc. However, on merits, they pleaded that the plaintiff is not in possession of the suit land. They admitted that the land was mortgaged with Het Ram, father of Ranjeet Singh alongwith his brother. They also admitted that the ownership rights were purchased by Ranjeet Singh, who followed in the footsteps of Paras Ram and Ranjeet Singh had been in possession and the entry in possessory column in favour of Deep Ram was wrong and illegal. They also took up the plea that there was no question of extinguishment of time for redemption and the mortgaged land stands discharged and owner Ranjeet Singh was in possession of the land and the mortgagees had left the possession at 4 the spot more than 12 years ago and the entries showing the mortgage as subsisting are incorrect. It was denied that the plaintiff and proforma defendants have become owners of the suit land after expiry of the period of redemption. On the pleadings of the parties, the following issues were settled by the learned trial Court:- 1. Whether the land in suit was mortgaged with predecessors-in-interest of plaintiffs as alleged? OPP 2. Whether the plaintiffs have now become owners of suit land by afflux of time as alleged? OPP 3. Whether the plaintiffs relinquished possession of suit land in favour of predecessors-in-interest of defendants as alleged, if so its, effect? OPD 4. Whether the suit is not maintainable as alleged? OPD 5. Whether the suit is not properly valued for purposes of court fees and jurisdiction? OPD 6. Whether the plaintiffs are entitled to the relief of injunction prayed for? OPP 7. Whether the defendants are in possession of the suit land as alleged? OPD 8. Relief. Parties led their evidence and the learned trial Court vide its judgment decided Issues No. 1 to 7 as against the plaintiffs and in favour of the defendants and consequently, the suit of the plaintiffs was dismissed. On appeal, the findings were reversed by the learned District Judge(Forest) vide his judgment dated 30.8.1997 and the suit of the plaintiffs was decreed for declaration and injunction. I have heard the learned counsel for the parties and have gone through the record of the case. 5 The submissions made by the learned counsel for the appellants during the course of arguments mainly were that an appeal in the case against the earlier judgment passed by the Appellate Authority, this Court had directed the learned District Judge to consider Ext. DA compromise and its effect but the learned Appellate Authority failed to refer or consider Ext. DA and, therefore, the case deserves to be remanded back to the learned Appellate Authority. However, during the course of arguments it was made clear to the learned counsel for the appellants that since this plea is being raised after the appeal has been pending for about 13 years, it may not be adviseable to remand the case to the learned Appellate Court just to consider the document Ext. DA. It is true that there were directions of this Court to consider the effect of document Ext. DA and it has to be seen as to whether the learned Appellate Court failed to refer or consider the document or made only an oblique reference to the document. However, in case some document has not been considered by the Court inadvertently, it is not adviseable to send the case back to the learned first Appellate Court for consideration and the effect of document Ext. DA can be considered by this Court. Therefore, this plea which was raised with much force by the learned counsel for the appellants in regard to non-consideration of the document, shall be considered while referring to the evidence. Apart from the above, it was submitted that the judgment passed by the learned trial Court was a reasoned judgment which called for no interference by the learned first Appellate Court which had wrongly set aside the findings and as such, the present appeal deserves to be allowed. 6 On the other hand, learned counsel for the respondents submitted that the facts of the case were not in dispute that the land in suit was mortgaged in 1947. The period of redumption had expired after 30 years i.e. in the year 1977 and the learned first Appellate Court had rightly come to the conclusion that the right of redemption had extinguished due to passage of time. The plaintiffs had become owner which findings were rightly recorded by the learned first Appellate Court. In regard to Ext. DA, it was submitted that it was referred to and a perusal of the same clearly shows that it had no effect and the case, therefore, does not deserve to be remanded back and fresh findings are not required from the learned first Appellate Court. It was also submitted that no question of law arises from the grounds of appeal and as such, there can be no reappraisal of evidence by this Court sitting in second appeal. The appeal was admitted on the substantial questions of law as detailed at Page-12 of the Paper Book. The main question which arises for consideration is whether a decree of declaration declaring the mortgagee as owner can be passed and whether a mortgagor when getting possession of the mortgaged property is bound to file a suit against the mortgagees for redemption of the property and as to whether the learned lower Appellate Court has not appreciated the law and facts in its right perspective. It has to be considered by this Court as to whether these questions arise as substantial questions of law or not. Coming to the findings recorded by the learned first Appellate Court, it has been clearly alleged and admitted by the defendants that the suit land was mortgaged in the year 1947. In case 7 the entry in Rapat Rojnamcha (Ext. PW4/B) is considered it is dated 27.1.1947 and in case the documentary evidence i.e. the registered mortgage deed is considered it is of the year 1948 dated 17.9.1948. The suit land was mortgaged vide this registered deed, though a report had already been lodged. However, the fact that who was the mortgagor, what was the consideration, stands established from a perusal of the registered deed dated 17.2.1948 and the period of 30 years for redemption of the suit land had expired in the year 1978. The suit in question was filed in the year 1980 and accordingly, the period for redemption of the mortgage in question had expired in the year 1978. These facts are not disputed by the defendants and rather they have come up with the plea that the possession was abandoned by the mortgagees and they are in possession for over 12 years. This plea has not been substantiated by any cogent and reliable evidence led in this regard and there cannot be any reappraisal of the evidence by this Court. A copy of mutation No. 252 is Ext. PW4/A vide which the mutation of mortgage was sanctioned in favour of all the six brothers. The learned first Appellate Court had referred to the evidence in detail and had finally concluded that since the suit land had not been redeemed till now, the plaintiffs have become owner of 4/5th share in the land and defendants Ram Swarup and Jamna Devi have become owners to the extent of 1/5tn share to which they succeeded. In regard to the share in Khata No. 53, it was concluded that the plaintiffs have become owners by afflux of time to the extent of 4/10th share and defendants No. 1 to 3 to the extent of 1/10th share, which they have succeeded by way of inheritance from Ranjeet Singh. No case was made out for 8 reappraisal of the evidence since the question involved was legal one as to whether the defendants have lost their rights to redeem the suit land after expiry of the period of limitation or not. Coming to the document Ext. DA, it was directed to be considered by this Court and had not been allegedly considered by the learned first Appellate Court. A reference was made to Ext. DA, compromise, which was allegedly arrived at between the parties, in Para-14 of the judgment of the learned first Appellate Court. Thereafter, again a reference was made to Ext.DA that it was executed in between Ram Swaroop and Deep Ram. It was also signed by him. It was further observed in the same para that the witness has admitted that the compromise Ext. DA was executed on the second day of the execution of the agreement. However, he has denied that any pressure was put on the plaintiff by the police for execution of Ext. DA, wherein Deep Ram had admitted his possession over 29 Bighas 2 Biswas and had undertaken not to cause any interference in the possession of the plaintiff till the final decision of the case. Thereafter, a reference was also made in Para-30 of the judgment and the learned first Appellate Court had observed that Ext.DA is the copy of compromise deed dated 11.6.1980 entered into in between Deep Ram and Ram Swaroop, whereby Deep Ram had agreed not to cause any interference over the possession of Ram Swarup qua 29 Bighas 2 Biswas. Thereafter, a reference was made that a mutation No. 380 was exhibited as Ext. DA as well as mutation No. 368. Thus, from the above discussion, it cannot be said that the learned first Appellate Court had not referred to the document in question at all, though some reference was made that it was executed in 9 between plaintiff No. 1 Deep Ram and Ram Swaroop, defendant No. 1. There is no mention of the fact that the other plaintiffs were present there or made statement in regard to admission. It was only mentioned therein that the first party i.e. Deep Ram, applicant, had admitted that he will not interfere in possession of respondent Ram Swaroop over the land measuring 29-02 Bighas. The total land measured more than this much land and this admission even if made by plaintiff No. 1 was not binding upon the other parties and as such, this document cannot be said to be binding upon both the parties to the terms mentioned therein. Therefore, this document was not of much help and as such, it did not affect the merits of the case. The learned first Appellate Court did make a reference to the document but since it did not affect the rights of the parties since all the parties were not signatory to the same, therefore, it was not binding upon the parties. In view of the above discussion, it is clear that there is no necessity of re-appraisal of the whole evidence suffice it to say that there is no merit in the appeal filed by the appellants and the findings recorded by the learned first Appellate Court are liable to be affirmed and are affirmed accordingly. The appeal filed by the appellants is dismissed. However, the parties are left to bear their own costs. In view of the dismissal of the main appeal, all the miscellaneous applications pending, if any, shall also stand disposed of. ( V.K. Ahuja ), May 19, 2010 Judge (BSS) 10