IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.462 of 1998. Judgment reserved on: 03.03.2011. Date of Decision: 8.3.2011 Smt.Sushila Devi and others ..Appellants Versus Abdul Ganni and others ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No For the Appellant(s): Mr. K.D. Sood, Advocate alongwith Mr.Mukul Sood, Advocate. For the Respondent(s): Mr.K.S. Kanwar, counsel for respondents No.1 & 3 to 8. Deepak Gupta, J. 1. This Regular Second Appeal is directed against the judgment and decree dated 1.9.1998 passed by the learned Additional District and Sessions Judge, Sirmaur District at Nahan in Civil Appeal No.58-N/13 of 1995/94 whereby he dismissed the appeal of the appellants and upheld the judgment and decree dated 30.11.1993 passed by the learned Sub Judge Ist Class, Paonta Sahib whereby the suit of the plaintiff for possession was partly dismissed and partly decreed. 2. Briefly stated, the facts of the case are that Jaan Mohd. (Original Plaintiff), predecessor in interest of - 2 - respondents 1 to 9, filed a suit for possession of land measuring 21 bighas 2 biswas in village Purowala, Tehsil Paonta Sahib. Case set up by the plaintiff was that the suit land was mortgaged with him vide mutation No.144 dated 27.4.2004 (Samvat) for an amount of Rs.560/- by the predecessor-in-interest of defendants 1 to 3. He further prayed that since the mortgagers had failed to redeem the land, they had lost all rights, title or interest in the suit land and the plaintiff had become owner in possession of the suit land. It was further alleged that defendants 5 to 8 were trespassers on the suit land. Appellant No.1 Gonda Ram and Appellant No.2 Premi Devi were arrayed as defendants 4&5 in the suit. Appellant No.3 Neem Chand was defendant No.8 in the suit. The plaintiff also claimed that the sale deed dated 3.8.1987 executed by defendant No.1 in favour of defendant No.8 was illegal and void and liable to be set-aside. 3. The appellants 1&2 set-up a plea of tenancy and claimed that they had been inducted as tenants in May, 1975 on payment of 1/4th batai. They claimed to be in possession of the land comprising - 3 - khasra Nos.107 & 108 measuring 9 bighas and 15 biswas. They also claimed that the original mortgagors had entered into an agreement to sell the suit property to them and most of the sale amount had been paid and the defendants were willing to pay the balance amount of Rs.200/- at the time of registration of the sale deed. The stand taken by defendant No.8, Neem Chand, was that he had become owner of the land sold to him vide sale deed dated 3.8.1987. 4. The learned trial court held that defendants 4&5 had failed to prove that they were inducted as tenants on the part of the suit land. 5. The defendants 4&5 claimed to have become tenants on khasra Nos.107 and 108. The old khasra numbers of these two khasra numbers were khasra Nos.199, 201, 202, 203 and 261 as is apparent from missal haquiet Ext.P-4. There are entries in the Missal Haquiet of the year 1959-60 showing Kartara and Banwari to be non- occupancy tenants. Thereafter, the only Jamabandi produced is Ext.P-1 which is the jamabandi for the year 1987-88 wherein defendants 4&5 were shown to be in possession of - 4 - this land. Both the sides admit that earlier Kartara and Banwari were tenants in the suit land but they gave up their tenancy and handed over the possession to the owner. According to the plaintiff he never handed over possession to any other person. Defendants 4&5 claimed that after Kartara and Banwari gave up their tenancy they were inducted as tenants but no evidence in this regard was produced. Therefore, the learned trial Court held that defendants 4&5 were not tenants but were trespassers on that portion of the suit land and a decree was passed against them. Their plea that they were in possession of the suit land pursuant to an agreement to sell was also rejected after going through the entire evidence. Thus, the findings qua these two appellants call for no interference in this appeal. 6. Both the Courts below have also held that since the mortgage was not redeemed within a period of 30 years, the plaintiff has become owner of the suit land in the year 1977. The Courts below came to the conclusion that defendants 6&7 were non- occupancy tenants and held that the possession of the defendants on khasra Nos.107 and 108 was - 5 - as trespassers. The learned Courts below also came to the conclusion that since the plaintiff had become owner the sale made by Bachna one of the co-owners of a portion of the mortgaged land in favour of defendant No.8 was illegal and invalid. In my view this finding may not be legally correct since there was no order of foreclosure nor any material has been produced on record to show that the plaintiff was shown to be owner in the revenue record. 7. Be that at it may, the fact remains that no decree has been passed against defendant No.8. Even otherwise, defendant No.8 could not get a better right than that of original owners who were the mortgagors. He could have redeemed the property qua the share of Bachna only within the time prescribed. He has not applied for any such redemption till date. The suit was filed in the year 1991 and more than 20 years have elapsed and for the last 20 years the plaintiff claimed to be owner in possession. 8. Be that as it may, no decree has been passed against defendant No.8 and the only decree passed is that the plaintiff has been declared to - 6 - be owner of the suit land and defendants 4&5 have been directed to handover the possession of khasra Nos.107 and 108 to the plaintiff. Therefore, effective decree passed is against defendants 4&5. This decree is legal and valid as held above. 9. Though this appeal was admitted on a number of questions of law but after hearing the parties, I find that no question of law, much less a substantial question of law, arises in the appeal which is accordingly dismissed. No costs. March 8, 2011. ( Deepak Gupta ), J. PV