IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 143 of 1996 Date of Decision:- 7th April, 2009 __________________________________________________________ Lal Chand (died) through LRs Satya Devi & ors. ….Appellants. Versus Jasbir Singh & others. ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. __________________________________________________________ For the Appellants: Shri Bhupinder Gupta, Sr.Advocate with Shri Neeraj Gupta, Advocate. For Respondents 1,2,5 Shri Bimal Gupta & Shri K.S. Kanwar, to 7 and 10: Advocates. __________________________________________________________ Dev Darshan Sud, J. This appeal has been preferred by defendant No. 7 against the judgment and decree of the learned District Judge dismissing the appeal preferred by him against the judgment and decree of the learned trial Court decreeing the suit of the plaintiffs for possession of the suit land. The plaintiffs/respondents Tara Singh, Tarlok Singh, Piyari, Ranjit Singh, Harjit Singh, and Nirman Singh have preferred the suit out of which this appeal arises for a decree of possession of hut alongwith land comprised in Khatauni No. 96, Khasra No. 44 min, measuring 0-6 bighas, situated in Paonta Sahib and for recovery of Rs. 400/- as mesne profits etc. The suit was resisted by the defendants on a number of grounds including maintainability, limitation, adverse possession by the predecessors-in-interest of defendants No. 1 and 2. On 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 the settled issues, the trial Court decided and held that the suit property had been mortgaged by Atma Ram by way of usufructuary mortgage in favour of the predecessors in interest of the plaintiff and proforma defendants. A decree was accordingly granted in favour of the plaintiffs. The judgment and decree was challenged by the appellant herein before the learned District Judge, who dismissed the appeal after considering the entire evidence on record. The defendant is now in second appeal. This appeal was admitted by this Court on the substantial questions of law as filed with this appeal viz. while dealing with the appeal, the learned Appellate Court has held: “12. The learned counsel for the appellant has not disputed the findings of the lower Court that after the partition, Atma Ram had mortgaged his property with possession vide registered mortgage deed dated 18.3.1942 Ext.P1 in favour of the predecessors-in-interest of the plaintiffs and that it has not been redeemed by any of the defendants including Leela Devi, the daughter of Atma Ram. Therefore, in view of Section 30 of the Limitation Act, 1963, the plaintiffs shall be deemd to have become its owners by efflux of time in 1979 and thus are competent to file the suit. It is also not disputed that though Leela Devi respondent No. 25 had claimed her inheritance in the suit property yet even if Punnu and Lachhman are taken to have succeeded said Atma Ram in 1946, they and their successors-in-interest are qually bound by the mortgage in question. Therefore, Lal Chand appellant and Bhagat Ram respondent, who had been found in possession of the suit property and are that successors-in-interest of Lachhman and Punnu Ram cannot be said to be in hostile possession till 1979 and, therefore, their possession had not ripened into ownership by adverse possession. Otherwise also Lal Chand appellant or his predecessor-in-interest Lachhman had not filed any written statement nor taken the plea of adverse possession. Thus he cannot be allowed to take such a defence at appellate stage. On the other hand, Bhagat Ram, through his predecessor-in-interest Punnu Ram had pleaded adverse possession over the suit property has not come in appeal as he has allegedly compromised the dispute with the plaintiffs. Therefore, the learned counsel for the appellant has 3 not much disputed the propriety or correctness of the findings of the Court and decree for possession of the suit property against the defendant-appellant Lal Chand on merits. His simple point of argument is that the suit has not been maintainable in the present form and thus the lower Court should have dismissed it………..” The only question urged before the learned Appellate Court was on the maintainability of the suit. The learned Appellate Court held that suit was maintainable and did not accept the contention of the appellant herein that Section 67 of the Transfer of Property Act applied to usufructuary mortgage. The Court relied upon a decision of this Court in Ambe Lal & others Vs. Phina and others, AIR 1974 Himachal Pradesh 11, to hold that declaration could be granted to the plaintiff. This reasoning cannot be faulted with. I also find from the record that the share of defendant No. 7, whose successor in interest had filed the appeal, has not been mortgaged. In this view of the matter all the questions of law are answered against the appellants and this appeal is accordingly dismissed. No order as to costs. April 7, 2009 (Dev Darshan Sud) (ms) Judge