RSA No. 4375 of 2010 & 4457 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) RSA No. 4375 of 2010 (O&M) Date of Decision: 05.5.2011. Subhash .......Appellant Vs. Deep Chand and others ......Respondents (2) RSA No. 4457 of 2010 (O&M) Date of Decision: 05.5.2011. Subhash .......Appellant Vs. Deep Chand and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Kulbhushan Sharma, Advocate for the appellant. ..... SABINA, J. Vide this judgment, the above mentioned two appeals would be disposed of as these have arisen out of common judgment. Subhash Chand, Suresh and Sube Singh filed a suit for declaration. The case of the plaintiffs in brief was that Harish Chand @ Hari Chand was owner in possession of the land in dispute. Harish Chand had mortgaged the land with possession RSA No. 4375 of 2010 & 4457 of 2010 (O&M) -2- to Prabhu for `. 500/-. Plaintiffs were the sons of Prabhu. Hari Chand sold the suit land to the plaintiffs and defendants for a sum of `. 2,000/- vide sale deed dated 22.3.1966. The defendants were still mortgagors of 2/3rd share and they had not redeemed the mortgaged land so far. Hence, the plaintiffs had become owners in possession of the suit land. Defendants, in their written statement, averred that the parties to the suit had purchased the land in dispute vide sale deed dated 22.3.1966 for a consideration of ` 2,000/-. Prabhu-father of the plaintiffs and defendants were real brothers. Father of the plaintiffs was karta of the joint hindu family. The suit land was mortgaged with Harish Chander and only the name of Prabhu was incorporated in the papers. The plaintiffs and defendants were in joint possession of the suit land. The land in question was purchased in three equal shares jointly in the names of the plaintiffs and defendants. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs are owner in possession of the suit land as detailed in para no.1 of the plaint and as such are entitled to get incorporated their names in the relevant revenue record relating thereto? OPP (Subhash Chand etc. vs. Deepchand etc.) 2. Whether the plaintiffs have no locus standi to file the present suit? OPD (Subhash Chand etc. vs. Deepchand etc.) 3. Whether suit is not maintainable in the present RSA No. 4375 of 2010 & 4457 of 2010 (O&M) -3- form? OPD (Subhash Chand etc. vs. Deepchand etc.) 4. Whether the present suit is barred under order 7 Rule 11 CPC? OPD (Subhash Chand etc. vs. Deepchand etc.) 5. Whether the plaintiffs are estopped from filing the present suit by their own act and conduct? OPD (Subhash Chand etc. vs. Deepchand etc.) 6. Whether the plaintiffs have no cause of action to file and maintain the present suit? OPD (Subhash Chand etc. vs. Deepchand etc.) 7. Whether the defendants are entitled to special cost under Section 35A if so to what amount? OPD (Subhash Chand etc. vs. Deepchand etc.) 8. Relief.” Deep Chand and others filed a suit for declaration and permanent injunction. The case of the plaintiffs in the said suit was that the parties were in joint possession of the suit land. The suit land was taken by the plaintiffs and father of defendant No.1 on mortgage with possession. In the revenue record, the name of the father of the defendant No.1 was only recorded as mortgagee. The said entry in the revenue record in the column of cultivation qua possession was illegal and was not binding on the rights of the plaintiffs. After the purchase of the suit land, the plaintiffs and father of the defendants became co-sharers in joint possession of the suit land. On the basis of the wrong entry in RSA No. 4375 of 2010 & 4457 of 2010 (O&M) -4- the revenue record, the defendants were threatening to dispossess the plaintiffs from the suit land. Defendants, in their written statement, denied the contentions in the plaint that the plaintiffs were in joint possession of the suit land. It was averred that the father of the defendants had come in possession as a mortgagee and had become owner of the same by afflux of time. On the pleadings of the parties, following issues were framed by the trial Court on 17.11.2006:- “9. Whether the parties to the suit are joint owners in possession of the property in dispute? OPP (Deepchand etc. vs. Sube Singh etc.) Vide order dated 10.4.2008, following issues were framed by the trial court:- 10. Whether the entries in the column of cultivation in respect of suit land are illegal, null and void and liable to be corrected? OPP (Deepchand etc. vs. Sube Singh etc.) 11. Whether the plaintiffs are entitled for the decree of permanent injunction as prayed for? OPP (Deepchand etc. vs. Sube Singh etc.) 12. Whether the plaintiffs have no cause of action to file the present suit? OPD (Deepchand etc. vs. Sube Singh etc.) 13. Whether the suit of the plaintiffs is time barred? OPD (Deepchand etc. vs. Sube Singh etc.)” Both the suits were clubbed and were disposed of by RSA No. 4375 of 2010 & 4457 of 2010 (O&M) -5- a common judgment. The trial court vide judgment and decree dated 24.4.2008 decreed the suit filed by Deep Chand and others and dismissed the suit filed by Subhash Chand and others. It was held that Deep Chand and Hoshiyar Singh were co-owners in joint possession of the suit land and entries in the name of Prabhu in the column of cultivation were liable to be corrected. Subhash Chand, Suresh and Sube Singh had no right to interfere in the joint possession of Deep Chand and Hoshiyar Singh and they were restrained from ousting Deep Chand and Hoshiyar Singh from the joint possession of the suit land. The said judgment and decree were upheld, in appeal filed by Subhash, by the Additional District Judge (Adhoc) Fast Track Court vide judgment and decree dated 11.3.2010. Hence, the present appeals by Subhash. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeals deserve dismissal. Admittedly, Harish Chand @ Hari Chand was owner in possession of the suit land and had mortgaged the same with Prabhu-father of the present appellant and brother of respondents No. 1 and 2. The mortgage deed was not proved on record. Since, the terms of the mortgage deed had not been proved on record and it was a case of usufructuary mortgage, the same could have been got redeemed at any time by paying the mortgage amount. Vide the sale deed dated 22.3.1966, the land in dispute was purchased in the name of Deep Chand, Hoshiyar Singh sons of Ramanand to the extent of 2/3rd share and Sube Singh, Subhash and Suresh to the extent of 1/3rd share. The mortgage amount of ` 500/- was duly adjusted in the sale RSA No. 4375 of 2010 & 4457 of 2010 (O&M) -6- consideration. ` 1500/- the remaining sale consideration was to be received by the vendors before the registar and the possession of the suit land was handed over to the vendees. Thus, the parties had become owners in possession of the suit property on the basis of the registered sale deed (Ex. D-1). In these circumstances, no interference by this court is called for. No substantial question of law arises in these appeals. Dismissed. (SABINA) JUDGE May 05, 2011 Gurpreet