1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.212 of 2008 Date of Decision: 19th May, 2010 Dhian Singh and another Appellants Versus Jeet Ram and another Respondents Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the appellants: Mr.Kush Sharma, Advocate, vice counsel for the appellants. For respondent No.1: Mr.Sanjeev Kuthiala, Advocate, Sanjay Karol, J. (Oral) 1. It is the defendants’ Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908. Plaintiff Jeet Ram filed suit for possession against the defendants Dhian Singh and Rattan Lal, in which Shri Durga Dass was arrayed as proforma defendant. 2. In terms of judgment and decree dated 29.3.2006 passed by Civil Judge (Jr. Division), court No.2, Ghumarwin, District Bilaspur, H.P., plaintiffs’ suit No.41/1 of 2005/2002, titled as Jeet Ram vs. Dhian Singh and others, stands decreed as under:- “For the detailed reasons assigned above, plaintiff has been held to be owner of the suit land, whereas the possession of the same lies with the defendants as mortgagees. The plaintiff is ready to pay Rs.2000/- i.e. mortgage money and on Whether the reporters of Local Papers are allowed to see the Judgment? 2 payment of mortgage money he is entitled for a decree for redemption of the suit land. Accordingly, the suit of the plaintiff is decreed to the extent. The plaintiff is directed to make payment of Rs.2000/- within 30 days from today and in case plaintiff fails to either tender or deposit then the suit shall be deemed to have been dismissed. Let the preliminary decree sheet be prepared. The case file be consigned to record room. No order as to cost is made.” 3. Aggrieved of the same, defendants Dhian Singh and Rattan Lal filed Civil Appeal No.64 of 2006, which stands dismissed in terms of judgment and decree dated 9.1.2008 passed by District Judge, Bilaspur, H.P. 4. Civil Suit was filed in the year 1992 by the plaintiff. He sought possession of the suit land by way of redemption. The contesting defendants resisted the suit inter alia on the ground that Smt. Kalasi, the original owner of the land had inducted their father as a non-occupany tenant and hence by virtue of the provisions of H.P. Tenancy and Land Reforms Act, they had become owners thereof. The alleged Will executed by Smt. Kalasi Devi in favour of the plaintiffs and proforma defendant was a result of fraud and mis- representation. 5. Based on the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the plaintiff is owner in possession of the suit land, as alleged? OPP 2. Whether the suit land was mortgaged by one Smt.Kalasi Devi in favour of Sh.Kalu on 30.4.72 as alleged? OPP 3. Whether Smt.Kalasi Devi had executed a valid will in favour of proforma defendant No.3 as alleged? OPD. 3 4. Whether the suit is not maintainable as alleged? OPD 5. Whether the suit is bad for non-joinder and mis- joinder of necessary parties, as alleged? OPD. 6. Whether the plaintiff has no cause of action as alleged? OPD. 7. Whether this court has no jurisdiction to hear and decide the suit as alleged? OPD. 8. Whether the suit has not been valued properly for the purpose of court fee and jurisdiction as alleged? OPD 6. An additional Issue 8-A with regard to the contesting defendants’ having perfected the title by way of adverse possession was also framed but was got struck off later. 7. The trial Court found that the land in question was in fact mortgaged to the predecessor-in-interest of the contesting defendants, which fact was evident from mutation Ext.PW-3/A. The defendants’ plea of tenancy was disbelieved as there was no material on record to substantiate the said fact. 8. The lower Appellate Court has concurred with the findings recorded by the trial Court. 9. I have minutely gone through the record and in my considered view no interference is warranted in the instant case. The parties have been litigating since the year 1992. The fact that mortgage was created by the predecessor-in-interest of the parties is evident from the revenue record. The plaintiff’s has been recorded as owner of the suit land in the revenue record. (Ext.PA). The defendants have also admitted the this fact. The suit land was mortgaged by Smt. Kalasi in favour of Shri Kalu for a consideration of Rs.2000/- . Plaintiff’s ownership is also proved by PW-2 Shri Durga Ram, PW-3 Shri Nathu Ram and PW-4 Shri Dandu Ram. On the contrary, the 4 defendants could not prove the payment of rent paid to the original owner. Thus the defendants are not entitled to the statutory benefits under the provisions of H.P. Tenancy and Land Reforms Act. 10. In my considered view, no question of law much less substantial question of law arises for consideration in this appeal. As such, the present appeal is dismissed. No costs. 19th May, 2010 (Sanjay Karol) (C) Judge.