R. S. A. No. 3370 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 3370 of 2009 Date of Decision : October 05, 2010 Mohinder Singh and another .... Appellants Vs. Hardeep Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. S. K. Arora, Advocate for the appellants. Mr. J. S. Brar, Advocate for respondents no.1 to 3. None for remaining respondents. * * * L. N. MITTAL, J. (Oral) : This is second appeal by Mohinder Singh and Joginder Singh – defendants sons of Balbir Singh, who were successful in the trial court, but have been unsuccessful in the lower appellate court. Respondents-plaintiffs filed suit against the defendants- appellants for possession of the suit land alleging that Bala Singh – predecessor of plaintiffs as well as of Balbir Singh – father of defendants R. S. A. No. 3370 of 2009 2 purchased the suit land from Muslim evacuee. However, at that time, the suit land was under mortgage with possession with Sant Singh son of Amar Singh. On death of Bala Singh in the year 1947, his three sons and descendants of another pre-deceased son inherited the suit land under customary law of Punjab. Balbir Singh – father of defendants got sanctioned mutation no.3450 in his favour regarding estate of Bala Singh on 08.06.1972 on the basis of forged and fabricated Will dated 07.10.1947 allegedly executed by Bala Singh. The said mutation was set aside in appeal by the Collector and the matter was remanded. Thereafter, mutation was sanctioned on 28.10.1975 in favour of all natural heirs of Bala Singh including the plaintiffs. The said order was affirmed in appeal by the Collector. However, its entry was not made in the revenue record, wherein Balbir Singh continued to be recorded as owner of the suit land. Defendants' possession over the suit land is illegal. They have started denying the title of the plaintiffs. Defendants had filed suit for injunction on the basis of Will, but the said suit was dismissed. Since defendants refused to hand over possession of the suit land to the plaintiffs, they filed suit for possession of the suit land. Defendants admitted pedigree-table pleaded by the plaintiffs. However, other plaint allegations were broadly denied. It was pleaded that defendants father Balbir Singh got the mortgage of the suit land redeemed from original mortgagee Sant Singh about 16 years earlier and since then, R. S. A. No. 3370 of 2009 3 defendants are in possession of the suit land with the consent of their father. Plaintiffs cannot get possession of the suit land without redeeming it. Suit for redemption has become time barred. Balbir Singh is also necessary party to the suit. Defendants also claimed to be owners of the suit land by adverse possession. Other descendants of Bala Singh were also claimed to be necessary party to the suit. It was also pleaded that Amar Singh son of Bala Singh had sold his entire property to Gulwant Singh, who is also necessary party. It was denied that Bala Singh purchased the suit land. Mutation in favour of defendants' father was rightly sanctioned. Various other pleas were also raised. Learned Additional Senior Sub Judge, Faridkot, vide judgment and decree dated 11.09.1986, dismissed the plaintiffs' suit. However, first appeal preferred by the plaintiffs has been allowed by learned Additional District Judge, Faridkot vide judgment and decree dated 18.08.2009 in the following terms :- “Resultantly, the appeal is accepted. Judgment and decree under appeal are set aside and the suit of the plaintiffs is hereby decreed for possession to the extent of their share on payment of mortgage money proportionately to Balbir Singh. In the facats and circumstances of the case the parties are R. S. A. No. 3370 of 2009 4 left to bear their own costs. Decree sheet be prepared. Trial court record be returned. The appeal file be consigned.” Feeling aggrieved, defendants have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellants vehemently contended that the lower appellate court has granted decree for possession of the suit land to the extent of share of the plaintiffs by redemption of mortgage thereof, although the plaintiffs never sought the relief of redemption of the mortgage. It was also contended that mortgage money has been ordered to be paid to Balbir Singh, who was not even party to the suit. It was also pleaded that Balbir Singh was also co-owner in the suit land and therefore, decree for possession without seeking partition could not be passed. Learned counsel for the respondents contended that mortgage had been redeemed by Balwinder Singh – one of the predecessors of the plaintiffs and mortgage was not redeemed by Balbir Singh. I have carefully considered the rival contentions. Concededly, the plaintiffs, neither in the plaint nor in the replication, pleaded that the mortgage had been redeemed by Balwinder Singh. Consequently, contention to this effect cannot be allowed to be raised on their behalf. The R. S. A. No. 3370 of 2009 5 defendants specifically pleaded in the written statement that mortgage was redeemed by Balbir Singh, but in spite thereof, even in the replication, the plaintiffs did not plead that mortgage was redeemed by Balwinder Singh. The defendants also pleaded in the written statement that without seeking redemption of mortgage, the plaintiffs cannot claim the relief of possession of the suit land. In spite thereof also, the plaintiffs did not plead that the mortgage had already been redeemed by Balwinder Singh nor sought relief of redemption of mortgage. Besides it, in the plaint itself, the plaintiffs pleaded that the suit land was under mortgage with possession with Sant Singh son of Amar Singh. In spite of this plea, the plaintiffs in the plaint, neither pleaded that the mortgage was redeemed by Balwinder Singh or by anybody else nor sought the relief of redemption of mortgage. However, in spite thereof, the lower appellate court has granted the relief of redemption of mortgage. Obviously, no such relief could be granted to the plaintiffs when it was not even sought by them. In addition to the aforesaid, Balbir Singh has been proved to have redeemed the mortgage. Lower appellate court has directed that proportionate mortgage money be paid to Balbir Singh. However, Balbir Singh was not even party to the suit. Consequently, no such direction could be passed by the lower appellate court. It is thus manifest that the decree passed by the lower appellate court is patently illegal and unsustainable. Following substantial question R. S. A. No. 3370 of 2009 6 of law arises for determination in the instant second appeal :- “Whether decree for possession of the suit land to the extent of the share of the plaintiffs on payment of proportionate mortgage money to Balbir Singh, who was not even party to the litigation, and without relief of redemption of mortgage being sought by the plaintiffs, could be passed by the lower appellate court ?” In view of the reasons already recorded, the aforesaid substantial question of law is answered in favour of the appellants. Judgment and decree of the lower appellate court granting the aforesaid relief to the plaintiffs are patently perverse and illegal and therefore, unsustainable. For the reasons recorded herein above, the instant second appeal is allowed and suit filed by plaintiff-respondents stands dismissed by setting aside judgment and decree of the lower appellate court. October 05, 2010 ( L. N. MITTAL ) monika JUDGE