JUDGEMENT
Vinod K.Sharma, J. -
(1.)This regular second appeal by the defendant/appellant is directed
against the judgment and decree dated 4.1.1984 passed by the learned courts
below vide which suit filed by the plaintiff/respondents for declaration
claiming the right of ownership in the property with express of time due to
non-redemption of mortgage stands decreed. RSA No.1410 of 1984 2
Plaintiff/respondents filed a suit for declaration to the effect that they are
owners in possession of land measuring 1 kanal 7 marlas in the area of village
Shankar Tehsil Nakodar with share in tube-well etc. and other incidental rights
of ownership in the land. Pleaded case of the plaintiff/respondents was that
Maya Singh, predecessor-in-interest of defendant-appellant was owner of Killa
No.73/1 (2K 14M) Khewat and Khatauni No.200/674 and he mortgaged this land in
favour of Milkha Singh son of Gopal Singh vide mutation No.574 sanctioned on
29.6.1922 for Rs.600/- (Rupees six hundred only) on the basis of registered
mortgage deed dated 22.3.1922. Possession of the land was delivered by the
predecessor-in-interest of the defendant-appellant on 22.3.1922 to the
mortgagee. It was also the case of the plaintiffs that the land in dispute was
allotted in lieu of originally mortgaged land. Case of the plaintiffs was that
Maya Singh or his heirs i.e. defendant-appellant did not care to get the land
redeemed within the stipulated period i.e. up to 31.12.1970 i.e. the period
allowed for this redemption with the result that the plaintiff had become full
owner by extinguishment of right of redemption and by lapse of time on
31.12.1970. The case of the plaintiff was that the defendant/appellant was
asked many a times to admit the claim of the plaintiff but they refused to do
so and therefore, necessity arose to file the suit. Only defendants No.1 to 6
contested the suit, whereas other defendants were proceeded ex parte.
(2.)Preliminary objection was raised that the name of the father of
Jhalman Singh defendant was Ganga Singh and therefore, the plaint RSA No.1410 of
1984 3 required amendment, otherwise, it was liable to be dismissed.
Similarly, it was mentioned that names of other parties were also wrongly
mentioned. It was claimed that son of Maya Singh had sold his share of land to
Banta Singh son of Didar Singh. So Chanan Singh's widow Smt.Gurmej Kaur and
Banta Singh vendees' successor were not made party to the suit and therefore,
the suit was liable to be dismissed. It was the case of the defendant-
respondents that the plaintiff admitted and made an acknowledgment in writing
about the existence of mortgage specifically and thereby the liability of the
property to be redeemed on the basis of admission and acknowledge was still in
existence. It was the case of the defendant-appellant that in the consolidation
proceedings in the year 1961- 62 land was allotted on the basis of admission
and acknowledgment, hence the limitation for redemption had not expired. The
suit was said to be, therefore, not maintainable. It was also the case set up
by the defendant/appellant that acknowledgment of redemption was made when
Chanan Singh's vendee made payment of mortgage money to the
plaintiff/respondent in the year 1962-63 and possession of the land was
delivered to him.
(3.)On merit, it was denied that the land was mortgaged with the
predecessor-in-interest of the plaintiffs. It was again reiterated that
limitation to redeem the property was still available and therefore, suit was
not competent in view of the acknowledgment made. In the replication, the
plaintiff/respondents reiterated the averments made in the plaint and denied
those made in the written RSA No.1410 of 1984 4 statement.
On the pleadings of the parties, learned trial court framed the
following issues:-
1. Whether the plaintiff has become owner by extinguishment of
rights or redemption? OPP
2. Whether the suit is bad for non-joinder of necessary parties as
per allegations contained in para Nos. 2 and 3 of preliminary objection of
written statement? OPD
3. Whether the plaint required amendment as given in preliminary
objection No.1 of the written statement? OPD
4.If issue No.1 is proved, whether the plaintiff ever
acknowledged the liability to redeemed the land as per section 18 of the Indian
Limitation Act, 1963? OPD
5. Relief.
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