IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.141 of 1999 Date of decision : May 31, 2010 Ganga Ram and others …Appellants. Versus Bhagat Ram (Dead) though LRs and another …Respondents. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. Vikaram Singh, Advocate. For the Respondents : None. Surjit Singh, J (Oral) This Regular Second Appeal by Ganga Ram, Hoshiar Singh (now dead and represented by his LRs) and Parkash Singh, plaintiffs in Civil Suit No.55 of 1992 before the trial Court, is directed against the judgment and decree dated 10th December, 1998 of learned Additional District Judge, whereby their appeal against the judgment and decree dated 10th December, 1993 of learned trial Court, dismissing the suit, has been dismissed and the said judgment and decree of the trial Court affirmed. 2. Plaintiffs-appellants filed a suit against defendants-respondents Bhagat Ram and Kuldeep Raj, seeking a declaration that they were owners in possession of the suit land, measuring 3354 sq.m bearing Khasra Nos.80, 83, 2157, 2179 and 2184, situate in Mohal Whether reporters of the local papers may be allowed to see the judgment? …2… Amlohar, Tehsil Amb, District Una, initially being mortgagees and on efflux of time for redemption of mortgage, as owners and that the defendants-respondents, without any right, title or interest, had been threatening to interfere with their possession. It was pleaded that the suit property was initially mortgaged by a predecessor of late Shri Jallu, who was a lunatic, and that in the year 1947 plaintiffs had purchased mortgagee’s rights from the earlier mortgagee Jai Karan and that ever since they had been in possession as mortgagees. 3. It was pleaded that Jallu, who was insane, filed a suit for redemption, through Pratap Singh, the father of respondent-defendant Kuldeep Raj, acting as his next friend, and that that suit was ultimately decreed and a preliminary decree, directing deposit of a sum of Rs.145/- as mortgage debt, was passed. It was also pleaded that decree for mesne profits was also passed. It was further stated that amount of Rs.145/-, on account of mortgage debt, had not been deposited, within the time stipulated in the preliminary decree and, therefore, the decree lapsed. It was also stated that respondent No.2 Kuldeep Raj, who was appointed as guardian ad litem of Jallu, on the death of Pratap Singh, his next friend, applied for release of the amount of mesne profits in the year 1991, by which time Jallu was already dead and that despite objection by the plaintiffs that Kuldeep Raj was in no way related to …3… deceased Jallu and, hence, not entitled to the amount of mesne profits, application was allowed, vide order dated 19th December, 1991. It was pleaded that on the basis of that order of release of mesne profits Kuldeep Raj started claiming that he was entitled to the suit property and threatened to dispossess the plaintiffs, by use of force. It was also pleaded that in case it was found that the mortgage stood redeemed and the mortgage debt deposited, within the time stipulated in the preliminary decree, in that event the plaintiffs were in possession as licencees. 4. Suit was instituted against respondent Bhagat Ram and Kuldeep Raj. It was stated that mutation of the estate of Jallu had been sanctioned in favour of Bhagat Ram and he alone was the legal representative/legal heir of Jallu. Bhagat Ram filed written statement, conceding plaintiffs’ claim. 5. Respondent Kuldeep Raj, who was impleaded as defendant No.2, though did not claim that he was in any way related to Jallu or that he had, in some other way, succeeded to the estate of Jallu, denied plaintiffs’ claim. He pleaded that mortgage debt had been deposited within the time fixed in the preliminary decree and so he was entitled to final decree. He also pleaded that mutation attested in favour of Bhagat Ram had been challenged by him, by filing …4… appeal before the Divisional Commissioner and that appeal was still pending. 6. The two Courts below concluded that the plaintiffs were in possession but their plea that they had become owners by afflux of time was rejected. Defendants’ plea that the suit was hit by Order 2 Rule 2 of the Code of Civil Procedure did not find favour with the trial Court. Trial Court also rejected defendants’ plea that the suit was barred by Rule of res judicata. Suit was held to be not Maintainable. Plea of estoppel raised by the defendants was also rejected. With these findings, suit was dismissed. 7. The two Courts below further held that the plaintiffs had not adduced any evidence, indicating that Bhagat Ram alone was the legal heir of deceased Jallu and that Kuldeep Raj (defendant No.2) had no concern with his estate. 8. Appeal was admitted on the following substantial questions of law: 1. Whether the guardian appointed for prosecuting the proceedings in the court can claim the right of legal heir simply on that ground without proving that he is the legal heir of the deceased after his death? 2. Whether a guardian appointed for the purposes of litigation can claim himself to be a legal heir also to assert rights as such, in law? 3. Whether the person in possession can be ejected by a person who does not prove better title in him? …5… 4. What is the effect of preliminary decree passed in favour of a person who could not get a final decree during the life time and as to whether the guardian can get the final decree passed without further proving that they are legal heirs? 9. I have heard the learned counsel for the appellants. Nobody has put in appearance on behalf of defendant-respondent Kuldeep Raj. 10. As already noticed, Kuldeep Raj did not plead in the written statement that he had any relationship with deceased Jallu, leave alone claiming that he was his legal heir. No doubt, he pleaded that he had challenged the attestation of mutation, in respect of the estate of Jallu, in favour of Bhagat Ram, by filing an appeal before the Divisional Commissioner, but without stating as to what locus standi he had to challenge that mutation or how he claimed the estate of deceased Jallu to have devolved upon him. 11. I find copy of an order of Financial Commissioner Ex. P-1 on record. The order is dated 1st March, 1993. As per this order, Financial Commissioner dismissed the Revision Petition of Kuldeep Raj against the order of Divisional Commissioner, dismissing his appeal against the order of mutation of estate of Jallu in favour of Bhagat Ram. From a reading of this order, it appears that Kuldeep Raj had set up a Will of Jallu, which was in favour of his father Pratap Singh, who initially acted as next friend …6… of Jallu in a suit for redemption of mortgage. Learned Financial Commissioner observed that since Jallu was an insane, as even the suit for redemption of mortgage had been filed by him through next friend, there could not have been any question of Jallu having executed any Will in favour of Pratap Singh, the father of Kuldeep Raj. Also, the learned Financial Commissioner observed that such a question was required to be determined not in mutation proceedings, but by filing a suit in the Civil Court. 12. Defendant Kuldeep Raj not only did not file any suit to claim the suit property, on the basis of the alleged Will executed in favour of his father Pratap Singh by Jallu, but he also did not raise such a plea in the suit, which has given rise to the present appeal. That means he did not claim that the property devolved upon him, on account of his being the son of Pratap Singh, the alleged legatee under the Will. As already noticed, he did not claim himself to be a legal heir of Jallu. Therefore, he has no right to claim any benefit under the preliminary decree passed in the suit of redemption of mortgage instituted by Jallu, through next friend. If that is so, he has no right even to interfere in the possession of the plaintiffs. 13. In view of the abovestated position, all the substantial questions of law, on which appeal was admitted, are answered in favour of the plaintiffs-appellants. Consequently, appeal is accepted and judgments and …7… decrees of the two Courts below, dismissing the suit of the plaintiffs, are set aside. Plaintiffs are not entitled to the declaratory decree that they have become owners by afflux of time, because Jallu had successfully filed a suit for redemption of mortgage and there is nothing on the record that mortgage debt had not been deposited within the time stipulated in the preliminary decree. However, decree of permanent prohibitory injunction, restraining respondent Kuldeep Raj from interfering in possession of the plaintiffs, is passed in favour of the plaintiffs and against respondent/ defendant Kuldeep Raj. Appeal stands disposed of. May 31, 2010(sd) ( Surjit Singh ), J