RSA No.4977 of 2009 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 18.01.2011 RSA No. 4977 of 2009 (O&M) Gurpal Singh and others .....Appellants Versus Banta Singh and others .......Respondents RSA No. 1881 of 2010 (O&M) Chanchal Singh and others .....Appellants Versus Gurpal Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. S.C.Chhabra, Advocate, for the appellants (in RSA No.4977 of 2009) Mr.Shakul Kumar, Advcate for Mr.Anupam Bhardwaj, Advocate for the appellants (in RSA No. 1981 of 2010) **** SABINA, J. Vide this order, the above mentioned two appeals would be disposed of by one common order as these have arisen out of the RSA No.4977 of 2009 (O&M) 2 same suit. Plaintiffs-Teja Singh and Hazara Singh filed a suit for possession by redemption of land in dispute. The case of the plaintiffs in brief was that Banta Singh mortgagee of the suit had transferred his rights in favour of defendants no. 2 to 5 and Ganda Singh. Defendant No.2 was the legal representative of Ganda Singh. After his death, defendants No. 2 to 5 had transferred some rights in favour of defendant No.6. Particulars of the mortgage deed are as under:- “A.Date of mortgage : In 1940 B.Names of Mortgagors : Mohan Singh s/o Budh Singh C.Name of Mortgagee : Banta Singh D.Mortgage money : About Rs.400/- E. Rate of interest : Not fixed F.Property mortaged : 36 Kanals, 18 Marlas as described in plaint.” Bahadur Singh and Sohan Singh, mortgagors have since died. Mohan Singh had not been heard for the last 9/10 years and was, thus, presumed to be dead. Jetha Singh, father of plaintiff No.2 had died and had executed a WILL in favour of plaintiff No.2. Thus, now, the plaintiffs who are the legal heirs of the mortgagors, had stepped into the shoes of the mortgagors. Defendants had not agreed to receive the mortgage money. Plaintiffs moved an application before the Assistant Collector Ist grade, Patti for redemption but the same was dismissed vide order dated 29.1.1970. Hence, the plaintiffs had filed a suit. RSA No.4977 of 2009 (O&M) 3 Defendants No. 2 and 3 in their written statements denied the contentions made in the plaint. It was averred that the defendants were owner in possession of the suit land. The land in dispute had never been mortgaged as alleged in the plaint. On the pleadings of the parties, the following issues were framed by the trial Court as preliminary issues:- “1.Whether the plaintiffs have locus standi to redeem the property in dispute?OPP 2. Whether the relationship of mortgager and mortgages does not subsist between the parties/OPD (objected to) 3.Whether the suit is within time and the mortgagees is question subsist? 4.Whether the plaint does not disclose the cause of action?OPD” The trial Court has added the following issues”- “1.Whether the order of ACP Patti dated 29.1.70 in wrong against law and facts and is not binding on the plaintiffs?OPP 2.What is the mortgage sum to which defendants may be entitled in case of decree?OPP 3.Whether the suit is properly valued for the purpose of court fee and jurisdiction?” The trial Court vide order dated 8.4.1976 held that Mohan Singh was presumed to be dead. Initially, the appeal was filed by the legal representatives of plaintiff-Teja Singh and appellant-Hazara Singh. During the pendency of the said appeal, an application was moved under Order RSA No.4977 of 2009 (O&M) 4 6 Rule 17 CPC for permission to amend the plaint and averred that the mortgage was of the year 1922. A certified copy of the mortgage deed executed by Sohan Singh and Mohan Singh was also placed on record. However, the application under Order 6 Rule 17 CPC was dismissed by the lower appellate Court and the appeal was dismissed by the lower appellate Court vide judgment and decree dated 8.1.1980. Aggrieved by the same, plaintiffs filed Regular Second Appeal No. 1341/80 in this Court and the same was allowed vide judgment dated 15.11.2006 and the plaintiffs were permitted to amend the plaint and thereafter the appellate Court was directed to decide the appeal in accordance with law. On remand the application for permission to amend the plaint was allowed vide order dated 23.4.2008. Thereafter, another application was filed by the plaintiffs to amend the plaint and the same was allowed vide order dated 12.1.09. The following issue was framed in appeal on 16.2.2009:- “Whether the appellants/plaintiffs has made unauthorised changes in the plaint. If so its effect/OPR” Vide order dated 30.9.1977, the suit filed by the plaintiffs was dismissed. Aggrieved by the same, plaintiffs filed an appeal through his legal repesentatives. Vide judgment and decree dated 31.3.2009, the Additional District Judge partly allowed the appeal filed by the plaintiffs and the decree for possession by way of redemption of 4 kanals 11 marlas of land was passed in favour of the plaintiffs subject to payment by mortgagee to the defendants @ Rs.82/-per kanal. Hence, the present appeal by the plaintiffs. After hearing the learned counsel for the appellants, I am of RSA No.4977 of 2009 (O&M) 5 the opinion that the present appeal deserves dismissal. Mortgage deed dated 1.2.1922 was proved on record as Exhibit PW2/1. The land was mortgaged by predecessors of the plaintiffs in favour of the predecessors of the defendants. The plaintiffs showed their willingness to redeem the land after payment of the amount in question. The property in dispute was duly co- related by the plaintiffs with the subject matter of the mortgage deed by producing relevant revenue record in the file qua 4 kanals 11 marlas of land out of the suit property measuring 24 kanals 13 marlas. The plaintiffs were successful in establishing their claim qua khasra No. 789 (4-11) The learned Additional District Judge has given a finding of fact after appreciating the evidence on record while partly decreeing the suit of the plaintiffs. Learned counsel for the appellants have failed to show that the said finding of fact could not be based on misreading of evidence. No substantial question of law arises in these appeal. Consequently, both the appeals are dismissed. ( Sabina ) Judge January 18, 2011 arya