PETITIONER:
DAULAT RAM
Vs.
RESPONDENT:
SAROOP RAM & ANR.
DATE OF JUDGMENT: 10/05/1996
BENCH:
RAMASWAMY, K.
G.B. PATTANAIK (J)
CITATION:
JT 1996 (6) 527 1996 SCALE (5)201
ACT
HEADNOTE
JUDGMENT
ORDER
Leave granted
This appeal by special leave arises from the judgment and order dated August 25, 1993 made in Regular Second Appeal No.2311/92 by the Punjab & Haryana High Court. The appellant laid this suit on April 8, 1986 for declaration and possession of the plaint suit property on the plea that it had fallen to his share through private partition and thereafter he has become the absolute owner thereof. The trial Court as well as the appellate court disbelieved the evidence which held that the appellant is not in exclusive possession. It was contended in the appeal before the High Court and repeated in the special leave petition that he had redeemed the property by himself. Therefore, by subrogation he became the mortgagee unless other co-owner redeem the mortgage from him he remains as mortgagee and the suit should have been decreed on that basis.
The respondents have filed counter affidavit in that behalf. They are denying the allegation that the appellant alone had redeemed the mortgage of one of the items of property. It was joint redemption by co-owners. It was also pointed out that the trial Court and the appellate Court had gone into the question and negatived the contention of the appellant. It was contended for the appellant that in view of the admitted position of the appellant’s payment of the mortgage amount to the Commissioner of Custodian of Evacuee Property and in view or entries. for one of the years in the mutation that he was in self-cultivation, it must be construed that the appellant alone had redeemed the mortgage thereof. After subrogation he became the mortgagee until redemption by the co-owners, his possession as a mortgagee cannot be disturbed. We find no force in the contention. Firstly, there is no such specific pleadings. Secondly, no such issue was raised. Even then in view of the evidence on record recorded by courts below, they have gone into the question, observing thus:
"Even if the minor contradictions
in their evidence are ignored the
documentary evidence available on
the record is sufficient to show
that the application for redemption
was moved by all the three brothers
i. e. the plaintiff and
defendants, and it was granted in
their favour on 9.2.60. In
pursuance of this order of
redemption the mutation was
sanctioned in Favour of all the
brothers, who sent on being
recorded joint owners in joint
possession of the suit land from
1961 towards and in joint
possession of the suit land from
1961 onwards till the date of the
filing of the suit.
So, the documentary evidence
shows that the suit land was got
redeemed by all the brothers
jointly and they are Continuing in
joint possession and joint
ownership of this land since the
time of its redemption. This land
was mortgaged only for Rs.494/- and
was redeemed for a total sum of
Rs.506/-. So the evidence of the
plaintiff to the effect that he
spent Rs.4000/- on getting the land
redeemed is also untrue.
Appellate Cort held that the
trial Court has thus rightly
concluded after carefully screening
of the evidence that. the land
described in the head-note (d) of
the plaint was got redeemed by all
three brothers and they are owners
in possession of the land in equal
shares.
So far as the statement of PW
4 Kailash Chand is concerned, it is
true that from his statement. it is
proved that the plaintiff
deposited the amount of Rs.506/-,
but on whose behalf he had
deposited this amount, is not
clear, because this fact can be
proved only by the Treasury Voucher
which has not been placed on
records nor PW 4 Kailash Chand
has brought the treasury voucher.
Exhibit P-10 is the order of
redemption which shows that the
suit land was redeemed by Sarup
Ram, Daulat Ram and Room Singh,
sons of Prem Singh collectively.
Ex. P-4 is Khasra Girdawari
for the period Swani 1961 to Rabi
1985 and this Khasra Girdawari is
in the name of plaintiff as co-
sharer. Ex. P-5 is the Jamabandi
for the year 1962-63 which show the
possession of Daulat Ram as Co-
sharer over the aforesaid land and
all the three brothers are shown as
co-owners. In the column No.12 of
this document mutation No.701 of
redemption of mortgage is
mentioned. In ex. P-6 Jamabandi for
the year 1969-70 all the three
brothers are shown as owners and
plaintiff is shown as in
cultivating possession.
As a result of my foregoing
discussion it is not proved that
the plaintiff alone got the
aforesaid land redeemed and that he
(plaintiff) is in continuous
cultivating possession over the
said land. Of course, possession
exclusively from 1961 to 1970, but
that is too as a co-sharer."
In view of this evidence and findings it must be concluded that all the co-sharers have jointly redeemed the property and thereafter it become a joint property of the brothers. The appellant no longer a mortgagee. The concurrent findings are that there was no private partition in which the property claimed to have been allotted to him was specifically negatived by the courts below, we do not think that there is any ground warranting our interference into the matter. The appeal is accordingly dismissed. No costs.