IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.130 of 2000 Date of decision : May 25, 2010 Barfi Ram …Appellant. Versus Munshi Ram (dead) Through LRs and others …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. J.R. Thakur, Advocate. For the Respondents : Mr. Karan Singh, Advocate, for respondent No.4 Biasan Devi. None for other respondents. Surjit Singh, J (Oral) This Regular Second Appeal was admitted on the following substantial questions of law: 1. Whether the lower appellate Court has misread and misinterpreted the documentary evidence exhibit D-2 on record and thus arrived at wrong findings? 2. Whether the appellant-defendant was the tenant over the suit land as per documentary evidence exhibit D-2 and the finding contrary thereto can be sustained in the present case? 2. Deceased plaintiff Munshi Ram, whose estate is now claimed to be represented by Biasan Devi (respondent No.4), filed a suit for declaration that he had become owner of land measuring 19 Marlas, bearing Khasra No.625 (old Khasra Nos.1168 & 1169), on account of his being a Whether reporters of the local papers may be allowed to see the judgment? …2… mortgagee in possession, for more than thirty years and said mortgage having not been redeemed. It was pleaded that Krodhu and Mahanti, who were the owners of the suit land, had mortgaged it (the suit land) in favour of plaintiff Munshi Ram, for a consideration of Rs.510/-, in the year 1952 and that mutation in respect of that mortgage was attested. It was also pleaded that ever since the plaintiff had been in possession of the suit land as mortgagee and the period of limitation prescribed for redemption of mortgage having elapsed, he had become owner. 3. Defendants contested the suit. It was pleaded that defendant No.1/appellant Barfi Ram was owner in possession of the suit land. It was denied that plaintiff Munshi Ram was a mortgagee. Entries in the revenue record, showing Munshi Ram as mortgagee in possession, were alleged to be wrong and not binding on the defendants. Also, it was pleaded that earlier a suit had been filed by defendant No.1 against the recorded owners, seeking a declaration that he was a non-occupancy tenant under the owners and that that suit was decreed and so in view of the judgment and decree passed in that case the present suit was not maintainable. 4. Trial Court framed various issues and concluded that defendant No.1-appellant was a tenant on the suit land, as claimed by him. Consequently, the suit was dismissed. …3… 5. Munshi Ram, deceased plaintiff, filed appeal before the District Judge. Learned District Judge came to the conclusion that Munshi Ram was a mortgagee in possession and mortgage having not been redeemed within thirty years, the time limited by law, he had become owner. It was also held that even though an order of redemption had been passed by the Collector, but that order had been passed on an application moved much after the expiry of time prescribed for redemption of mortgage and the Collector had no jurisdiction to condone delay in making such application. Consequently, judgment and decree of the trial Court were set aside and the suit of deceased plaintiff Munshi Ram was decreed. 6. I have heard the learned counsel for the parties and gone through the record. 7. No doubt, in Ex. D-2, Jamabandi for the year 1966-67, defendant No.1-appellant Barfi Ram is shown to be a non-occupancy tenant, even in respect of the suit land, i.e. Khasra Nos.1168 & 1169(old), but this fact cannot come to the rescue of the appellant, for the simple reason that he himself filed an application, in the year 1987, before the Collector for redemption of mortgage, in respect of the suit land. That application was filed about 35 years after the creation of mortgage. Collector condoned the delay in making the application for redemption, which he could not have. A reading of the order of redemption, copy Ex. RA, …4… passed by the Collector, shows that mortgage was alleged, by the appellant, to have been created on 13th September, 1952 to secure a loan of Rs.510/-. This was exactly the case of Munshi Ram (deceased plaintiff). This averment in the application of the appellant, for redemption of mortgage, amounts to admission on his part that Munshi Ram was a mortgagee with possession. In view of the above discussion, both the substantial questions of law are answered against the appellant and the appeal is dismissed. May 25, 2010(sd) ( Surjit Singh ), J