IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A.No. 525 of 2000. Decided on : 27.5.2010. Krishanu and another …Appellants . Versus Sehaj Ram and others …Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellants : Mr. Rakesh Jaswal , Advocate. For the respondents : Mr. Subhash Sharma, Advocate for respondent No.1. Kuldip Singh , Judge (Oral) The defendants No.1 and 2 have come in second appeal against judgment, decree dated 22.6.2000 passed by the learned District Judge, Bilaspur in Civil Appeal No. 26 of 1991 affirming judgment, decree dated 26.2.1991 passed by the learned Sub Judge 1st Class, Ghumarwin in Case No. 300-1 of 1986. 2. The brief facts of the case are that respondent No.1 had filed suit for possession through redemption of mortgage on the grounds that land comprised in Khasra Nos. 12, 13, 165 total measuring 2-13 bighas situate in village Railly Pargana Gehrwin, Tehsil Ghumarwin was mortgaged on 15.5.1960 by Shankari with possession for Rs. 210/-. It was also pleaded that respondent No.1 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 and proforma respondents including deceased Shankari are owners of the suit land and they are entitled to possession by redemption of mortgage by payment of mortgage money. 3. The suit was contested by filing a written statement by appellants, they took preliminary objections of maintainability, jurisdiction, valuation, estoppel, limitation and locus standi. On merits, the appellants have denied the mortgage and pleaded adverse possession on the suit land. They have also taken the plea of tenancy on the suit land prior to 1950-51. They denied that no mortgage was created by respondent No.1 or proforma respondents including deceased Shankari. The respondent No.1 filed a replication and on the pleadings of the parties, the following issues were framed:- 1. Whether the plaintiff is entitled for possession of the suit land through redemption of mortgage as alleged ? OPP 2. Whether the suit is not maintainable as alleged ? OPD 3. Whether this court has no jurisdiction as alleged? OPD 4. Whether the suit is not properly valued as alleged? OPD 5. Whether the plaintiff is estopped to file the suit as alleged? OPD 6. Whether the suit is time barred as alleged ? OPD 7. Relief. The issue No.1 was answered in affirmative and issues No. 2 to 6 were answered in negative and the suit was decreed on 26.2.1991. In appeal, the learned District Judge on 22.6.2000 affirmed judgment, decree dated 26.2.1991. The appellants have assailed judgment, decree dated 22.6.2000 in second appeal which has been admitted on the following substantial question of law:- 3 What is the effect of failure of the plaintiff to step into the witness box and to depose in support of his case? 4. I have heard Mr. Rakesh Jaswal, Advocate, learned counsel for the appellants and Mr. Subhash Sharma, Advocate, learned counsel appearing on behalf of respondent No.1 and have also gone through the record. On behalf of the appellants, it has been submitted that the plaintiff failed to appear in the witness box to depose in support of his case, therefore, it cannot be said that respondent No.1 plaintiff has proved his case. The Courts below have erred in not considering the fact that respondent No.1 has not appeared in the witness box, therefore, it cannot be said that the mortgage of the suit land has been proved. There is no substance in the submission which has been noticed only to be rejected. The suit was filed by respondent No.1 wherein he has pleaded that he and proforma respondents including deceased Shankari are owners of the suit land which was mortgaged by Shankari. In fact Shankari is the widow of Ram Dayal, respondent No.1 is son of Ram Dayal. Shankari died on 4.1.1995 as per appellants and at that time the matter was pending in the lower appellate Court. 5. In the lower appellate Court an application under order 6 Rule 17 C.P.C. was filed for amendment of the plaint for carrying out certain amendments. In the application for amendment of the plaint, it has also been mentioned that Shankari is also known by the name of Krishani. The amendment was not fully allowed by the learned lower appellate court but from the amendment application it emerges that Shankari was also known by the name Krishani. PW-1 Krishani has appeared and she has stated about the mortgage. The 4 respondent No.1 in the plaint has prayed for decree for possession through redemption of the suit land. In the plaint, it has been pleaded that land was mortgaged by Smt. Shankari. There is nothing on record that respondent No.1 who is the son of Shankari had not inherited her estate. Therefore, at the time of passing of the impugned judgment, decree on 22.6.2000 respondent No.1 has stepped into the shoes of Shankari so far as mortgage is concerned. In these circumstances, respondent No.1 had also vested right to claim redemption of the suit land. The appeal has not been admitted on any other substantial question of law except substantial question of law referred above. The two courts below have rightly appreciated the material on record. There is no perversity in the impugned judgment, decree nor there is any misconstruction of oral and documentary evidence. The substantial question of law referred above is decided against the appellant. 6. No other point was urged. 7. The result of the above discussion, the appeal fails and is accordingly dismissed with no order as to costs. ( Kuldip Singh ) Judge. May 27, 2010. (GR)