IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RSA No. 158 of 1999 Date of Decision : September 15, 2010 Nathu Ram …Appellant. v. Bhandari & Ors. …Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 No For the appellant: Mr. Ramakant Sharma, Advocate. For respondent No.1 Ms. Sunita Sharma, Advocate. Sanjay Karol, J (Oral). The present appeal has been filed under Section 100 of the Code of Civil Procedure. 2. Plaintiff Devi Ram filed a suit for declaration to the effect that defendants No.1 to 11 have no right or interest in the suit land. Pursuant to the decree passed by the Civil Court in File No. 54, on 27.11.1954 he obtained possession of the suit land as he alone had got the mortgage redeemed by paying Rs.90/- being amount of debt. Defendants did not pay their share of the mortgage debt at the relevant time. Thus they have no right, title or interest in the suit land. Consequential relief of permanent prohibitory injunction was also prayed for. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 3. For the purposes of deciding the present appeal it be noticed that now the contest is primarily between the plaintiff and his real brothers Sh. Bhandari (defendant No.1) and Sh. Bhagat Ram (defendant No.2). The suit was contested by all the defendants. Defendants No.1 & 2 took a common stand that the plaintiff who was the Karta of the joint Hindu family was managing the affairs of the family. In the suit for redemption, as minors they were also sued through the plaintiff. The debt was paid out of the joint family funds and not by the plaintiff out of his personal earnings. They however admitted that defendants No. 3 to 11 had no interest as they had not contributed anything towards repayment of the debt. 4. Defendants No. 3 to 11 opposed the suit on an entirely different issue. 5. Based on the pleadings of the parties, trial Court framed the following issues: 1. Whether the plaintiff is exclusive owner in possession of suit land on account of no-payment of mortgage money by the defendants as alleged? ….OPP 2. Whether the suit land is in exclusive possession of plaintiff since 27-11-1954 as alleged. If so, its effect? ……OPP 3. Whether the revenue entries existing in favour of defendants are wrong and illegal as alleged? …….OPP 4. Whether the plaintiff paid the mortgage money being Karta of the joint Hindu family as alleged. If so, its effect? …..OPD 1&2 5. Whether the plaintiff has a cause of action? ……OPP 3 6. Whether the suit is not maintainable in its present form? ……OPD 7. Whether the plaintiff is estopped from filing the present suit by its act and conduct? ...OPD 8. Whether the suit has not been properly valued for purpose of court fee and jurisdiction? …OPD 9. Whether the suit is time barred? …OPD 3 to 11 10. Whether the plaintiff has no locus standi to sue? …OPD 3 to 11 11. Whether the mortgage amount was also paid by the defendants No. 3 to 11 as alleged. If so, its effect? …OPD 3 to 11 12. Whether defendants No.3 to 11 are entitled to special costs U/S 35-A CPC. If so, its quantum? …OPD 3 to 11 13. Relief. 6. The Trial Court came to the conclusion that plaintiff had failed to prove that the debt was repaid by him out of his personal funds. Consequently, payment was held to have been made by the plaintiff on his behalf and also on behalf of defendants No.1 & 2. Since defendants No.3 to 11 had failed to repay their share of debt within the period of limitation, therefore, they had no right, title or interest in the property. During the pendency of the suit, defendant No.2 admitted the plaintiff’s claim and consequently plaintiff was held to be owner in possession of the suit land to the extent of 2/3rd share. Suit qua defendant No.1 was dismissed. 7. Plaintiff’s Civil Suit No. 289/1 of 1991 was decided by Sub Judge Ist Class, Nalagarh, Distt. Solan in terms of judgment and decree dated 30.9.1996. The same was assailed by the 4 parties by way of two separate appeals. Civil Appeal No. 84- NL/13 of 1996 titled as Devi Ram vs. Bhandari & Ors. was filed by the plaintiff and Appeal No. 75-NL/13 of 1996 titled as Darshano & Ors. vs. Nathu Ram & Ors. was filed by defendants No. 4, 5 & 7 to 11. Both these appeals stand dismissed in terms of impugned judgment and decree dated 24.2.1999 passed by Addl. District Judge, Solan, camp at Nalagarh, H.P. and the judgment and decree passed by the trial Court affirmed. 8. Plaintiff alone has assailed the same by filing the instant appeal which was admitted on the following substantial questions of law:- “1. Whether the learned lower Appellate Court is right in coming to the conclusion that the predecessor-in-interest of the appellants, namely, Sh. Devi Ram was not entitled for declaration with respect to the property in question on the ground that the mortgage money was paid to him on his behalf as well as on behalf of joint Hindu family? 2. Whether the impugned judgment and decree can be sustained especially when one of the brothers, namely, respondent No.2, had categorically admitted the case of the plaintiff to the effect that it was the plaintiff who had paid the mortgage money and was entitled for declaration that he is owner in possession with respect to the entire suit property?. 3. Whether the learned lower Appellate Court is right in not applying the ratio of judgments of 5 the Hon’ble Apex Court reported in A.I.R. 1953 Supreme Court page-1 and AIR, 1979 Supreme Court page-1937 to the case of the respondent No.1 whereas the aforesaid cases have been applied in the case of respondents No. 3 to 11? 4. Whether the learned lower Appellate Court is right in not holding the claim of respondent No.1 barred by time while holding that the claim of respondents No. 3 to 11 is lost by afflux of time? 9. The point for determination in the present appeal is narrow. In my view, substantial questions of law as framed do not arise for consideration at all. Both the Courts below have concurrently held that while redeeming the mortgage property plaintiff had failed to prove that he had repaid the entire amount of debt of Rs.90/- out of his separate income and to the exclusion of defendants No.1 & 2. 10. No doubt, defendant No.2 before the trial Court filed an application for compromise and admitted the plaintiff’s claim but however that fact by itself would not amount to be an admission on the part of both the defendants in favour of the plaintiff. 11. I have examined the record minutely. It is not in dispute that suit for redemption of mortgage was decreed in favour of the plaintiff and defendant No.1 by the Court of learned Sub Judge Ist Class, Nalagarh, in terms of judgment and decree dated 30.9.1996. It also cannot be disputed that the mortgage amount was repaid on 27.11.1954. It is not in dispute that at the relevant time defendants No.1 & 2 were minor. It is true that 6 defendant No.1 has deposed that all the three brothers had paid the amount in equal share but however there is nothing on record to prove this fact. This fact however would not establish that plaintiff had paid the amount out of his own and separate funds. 12. Undisputedly, receipt of payment of the mortgaged amount has not been proved by the plaintiff. Except for bald statement to the effect that he had paid a sum of Rs.90/-, there is nothing to prove the source of the same. Plaintiff’s statement that he had paid a silver coin cannot be accepted to be true. His version does not inspire confidence. He has falsely deposed that at the time of repayment of debt, defendant No.1 used to reside separately. At the relevant time, both defendants No.1 & 2 were minor and in cross examination, he categorically admits that they used to reside with him. That apart, he admits that in the revenue record their names were shown as joint owners in possession of the suit land. He admits that the land was joint and that record was regularly maintained by the revenue authorities. Defendant No.1 admits to have started residing separately only in the year 1961 when he attained the age of majority. The suit came to be filed only in the year 1991. The Courts below have held the plaintiff and defendant No.1 to be in joint possession of the suit land. 13. Plaintiff has failed to show that he was having any separate income of his own. The family was joint. The property was joint. Defendants No.1 & 2 were minor. Suit for redemption 7 was also filed through plaintiff as next friend of defendants No.1 & 2. Plaintiff was the eldest brother and the earning member of the family. He was looking after the family and its affairs. Had the plaintiff paid the amount out of his independent earnings, with respect to which there is no iota of evidence, in the year 1954 itself he would have got the entries changed in the revenue record 14. Consequently, the Courts below have correctly appreciated the material in its entirety. There is no perversity in the findings returned by the Courts below. 15. For the aforesaid reasons, the appeal stands dismissed. September 15, 2010. (Sanjay Karol) (rana) Judge.