R.S.A.No. 799 of 2008 {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 799 of 2008 Date of Decision:July 22, 2009 Shabbir Ahmad ---Appellant versus Noor Mohd. and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Sudhir Aggarwal,Advocate, for the appellant Mr.Sachin Mittal, Advocate, for respondents No. 1 to 19 and 22 to 30 *** SABINA, J. Plaintiff – Shabbir Ahmad had filed a suit for possession and permanent injunction against the defendants. Additional Civil Judge ( Senior Division), Ferozepur Zirkha vide judgment and decree dated 19.4.2006 dismissed the suit of the plaintiff. Aggrieved by the same, plaintiff preferred an appeal and the same was dismissed by Additional District Judge, Gurgaon vide judgment and decree dated 17.10.2007. Hence, the present appeal. The facts of the case as noticed by the learned Additional District Judge, in paras 2 and 3 of its judgment read as under:- “The plaintiff was mortgagee of agricultural land measuring 15 kanals 1 marla comprised in Rect. No. 12 killa No. 24(3-8), R.S.A.No. 799 of 2008 {2} Rect No. 13, Killa No. 2/2(1-0), 4(2-13) and 3 (8-0) situated within the revenue estate of village Sakras, Tehsil Ferozepur Jhirka, District Gurgaon (hereinafter to be referred as the suit land). One Jumma son of Bhura was mortgagee on the suit land and he had been coming as mortgagee over the suit land for the last more than 60 years. The suit land was never got redeemed by the mortgagor. The prescribed period of redemption of the suit land had expired. As such the said Jumma had become owner of the suit land. The right, title and interest of mortgagors had extinguished by expiry of the statutory period of limitation provided for redemption. Mortgagee rights of Jumma were purchased by the plaintiff vide registered sale deed dated 27.12.1995 for a valuable sale consideration of Rs. 8000/- and as such the plaintiff had entered into the shoes of the said Jumma and had acquired his statues. The defendants and prior to them their predecessors had been coming in possession of the suit land under the plaintiff and his predecessors and the possession of the defendants over the suit land was permissive under the plaintiff. The ancestors of the plaintiff had allowed the ancestors of the defendants to cultivate the suit land. The plaintiff and his predecessors were coming as mortgagees over the suit land and they had never given up their rights over the suit land. The defendants were shrewd and dishonest persons and they had started denying the title of the plaintiff. The defendants filed a civil suit titled as Hassam Mohd. Vs. Islam etc. in the court of Additional Civil R.S.A.No. 799 of 2008 {3} Judge, Ferozepur Jhirka impleading some of them as plaintiff and other as defendants. The suit was got dismissed by them on 13.3.1999 after impleading the plaintiffs as party under Order 1 Rule 10 CPC but before filing of written statement by the plaintiff. Therefore, the plaintiff had every right to file the present suit for possession against them. The defendants were now threatening to alienate the suit land in order to create hurdles in the way of the plaintiff in seeking possession of the suit land from the defendants. The plaintiff asked the defendants several times to admit his claim and refrain from doing illegal acts but to no avail. With these allegations, the plaintiff sought a decree for possession in respect of the suit land and further sought a decree for permanent injunction for restraining the defendants from alienating the suit land in any manner. The defendants No. 1 to 7, 10 to 12 in their joint written statement raised preliminary objections about locus standi, maintainability, limitation, adverse possession, denial of possession of Jumma, valuation, mis-joinder and non-joinder of parties and cause of action. On merits, it was denied that the plaintiff was mortgagee over the suit land. It was also denied that the plaintiff or his predecessors-in-interest had ever been mortgagees over the suit land. It was also denied that Jumma was mortgagee over the suit land. It was also denied that the suit land had never been got redeemed by the mortgagors. It was also denied that the plaintiff had any right in the suit land. R.S.A.No. 799 of 2008 {4} It was pleaded that the revenue entries, if any, in the name of Jumma were illegal, null and void. It was also denied that said Jumma had executed any sale deed in favour of the plaintiff. The answering defendants further pleaded that the said Jumma had no right, title or interest in the suit land and as such he had no legal right to execute the sale deed on mortgagee rights in favour of the plaintiff on 27.12.1995. The defendants pleaded that the sale deed was, therefore, null, illegal and void. The answering defendants further pleaded that the defendants and their predecessors-in-interest were coming in peaceful possession over the suit land and that the possession was continuous, free and hostile for the last more than 100 years and to the full knowledge and notice of the plaintiff and the alleged Jumma, so they had become owners of the suit land by way of adverse possession. The answering defendants further alleged that the proceedings of mutation between the same parties regarding the suit land were also decided by Assistant Collector, Ist Grade and the mutation launched by the plaintiff had been dismissed. Refuting the allegations of the plaintiff, these defendants prayed for the dismissal of the suit.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiff is entitled for a decree of possession in respect of the land detailed in para No. 1 of the plaint? OPP (2)Whether the defendant are liable to be restrained by way of permanent injunction from alienating the suit land? OPP R.S.A.No. 799 of 2008 {5} (3)Whether the plaintiff has no locus standi to file the present suit? OPD (4)Whether the suit is not maintainable in the present form? OPD (5)Whether the suit is barred by limitation? OPD (6)Whether the defendant has become owner in possession of the suit land by way of adverse possession? OPD (7)Whether they never remained in possession of the suit property and the revenue entries in the name of Jumma are illegal, null and void? OPD (8)Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD (9)Whether the suit is bad for mis-joinder and non-joinder of necessary parties? OPD (10)Whether the plaintiff has no cause of action? OPD (11)Relief. After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit. Plaintiff had filed a suit for possession and permanent injunction basing his claim on sale deed dated 27.12.1997(Ex. P-1). Chhittar, son of Nathu was owner of the suit property and mortgaged the same to Jumma and thereafter from Jumma, plaintiff had purchased mortgagee rights vide sale deed Ex. P-1. The case of the plaintiff was that he had become owner in possession of the suit land. Learned Additional District Judge in its judgment has observed that as per the revenue record, although Jumma was mortgagee under Chhittar but he never remained in R.S.A.No. 799 of 2008 {6} possession of the suit land. Rather defendants and their predecessor -in- interest were in possession of the suit land. Defendants were not described as tenants under Jumma in the revenue record from whom he has purchased the mortgagee rights. The defendants had also not pleaded that they were tenants under Jumma or that they were in permissive possession under Jumma and hence they could not be said to be tenants under the plaintiff. Learned Additional District Judge has further observed that although the case of the Plaintiff is that Chhittar was owner of the suit land and under him Jumma was a mortgagee, yet they had not been impleaded as party. Subsequent mortgagee could not get himself declared as owner of the mortgaged property without impleading the owner and mortgagee as a party. In case the mortgagor does not redeem the mortgaged land within the period of limitation, the right to redeem comes to an end if the mortgagee is in actual and continuous possession of the mortgaged land. However, in the present case, the plaintiff is not in possession of the suit land. Learned counsel for the appellant has failed to controvert the observations made by learned Additional District Judge with regard to the factual position. Since the plaintiff had not become owner of the suit property and the defendants were not tenants under Jumma, the suit of the plaintiff had been rightly dismissed by the courts below No substantial question of law arises in this appeal. Accordingly, this appeal is dismissed. (SABINA) JUDGE July 22, 2009 PARAMJIT