RSA No.4414 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No.4414 of 2009 (O&M) Date of decision: 16.05.2011 Jagdish Singh .....Appellants Versus Surjit Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Anupam Bhardwaj, Advocate for the appellant **** SABINA, J. Plaintiff had filed a suit for declaration that he had become owner of the suit property. The case of the plaintiff, in brief, was that Milkha Singh was owner of the suit land to the extent of 1/5th share. Vide mortgage deed dated 25.3.1950, Milkha Singh had mortgaged his share i.e. 1 kanal 17 marla of land with Hansa Singh for ` 500/-. Possession of the mortgaged land was handed over to the mortgagee. The period of mortgage was five years. Hansa Singh had died and the plaintiff was his adopted son and mutation No. 1074 qua estate of Hansa Singh had been sanctioned in favour of the plaintiff. Defendants. No. 1 to 9 were the legal representatives of Milkha Singh. Since the land RSA No.4414 of 2009 (O&M) 2 had not been got redeemed by Milkha Singh, the plaintiff had become owner of the same. The alleged sale deed, if any, executed in favour of defendant No.10 was not binding on the rights of the plaintiff. Defendants No. 1 to 10 were proceeded ex-parte as they failed to appear despite service. Defendants no. 11 and 12 had been impleaded as a party, in terms of the order of the Court, as the land had been allocated to them during consolidation in lieu of old khasra numbers. Defendants No. 11 and 12, in their written statement, denied the contents of the plaint. It was averred that the plaintiff or Hansa Singh had never remained in possession of the share of Milkha Singh. It was averred that the answering defendants were bona fide purchasers for consideration. The land had been got redeemed by Milkha Singh. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff is entitled to the declaration as prayed for?OPP 2.Whether the plaintiff is entitled to the injunction as prayed for?OPP 3.Whether the suit of the plaintiff is not maintainable in the present form?OPD 11, 12 4.Whether the plaintiff has got no locus standi to file the present suit?OPD 11,12 5.Relief.” The Civil Judge, (Junior Division) dismissed the suit of the plaintiff RSA No.4414 of 2009 (O&M) 3 vide judgment and decree dated 13.9.2005. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was dismissed by the Additional District Judge, vide judgment and decree dated 29.8.2008. Hence, the present appeal by the plaintiff. After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves dismissal. Plaintiff had filed the suit basing his claim on mortgage deed dated 25.3.1950. The mortgage was for a sum of ` 500/-. The mortgage was with possession for a period of five years by Milkha Singh in favour of Hansa Singh. Admittedly, Milkha Singh and Hansa Singh were brothers. There was no dispute qua the execution and terms of the mortgage. The question that requires consideration is only qua the fact as to whether the mortgage had been got redeemed by Milkha Singh or not. Plaintiff has succeeded the estate of Hansa Singh and mutation was sanctioned in favour of the plaintiff qua the estate of Hansa Singh. The case of the defendants is that the land was got redeemed by Milkha Singh. Thereafter,Milkha Singh, Kuldip Singh and Hansa Singh mortgaged the entire land in favour of Gurmej Singh vide mortgage deed dated 2.6.1969. The said three persons had mortgaged 8 kanals 18 marlas of land with Gurmej Singh with possession for ` 4700/- including the share of Milkha Singh which was earlier under mortgage with Hansa Singh. In these circumstances, the Courts below have rightly concluded that in case, Milkha Singh had not got the land redeemed from Hansa Singh then he could not have executed the mortgage deed with Gurmej Singh RSA No.4414 of 2009 (O&M) 4 alongwith Hansa qua 8 kanals 18 marlas of land (including the suit land). The factum of subsistence of earlier mortgage was also not reflected in the mortgage deed dated 2.6.1969. Possession of the plaintiff over the suit land was not reflected in the revenue record. Anaib Singh, Dalbir Singh sons of Gurmej Singh received the mortgage money from Inder Singh who had purchased the land from Milkha Singh vide sale deed dated 13.7.1973. The factum of mortgage in favour of Gurmej Singh was duly reflected in the said sale deed. Thus, the plaintiff had failed to establish his case that the suit land had not been got redeemed by Milkha Singh. No substantial question of law arises in this appeal Dismissed. ( Sabina ) Judge May 16, 2011 arya