Dharamshala and Piyao and Others vs Devi Ram and Others

Jawahar Lal Gupta, J.—This is the plaintiffs'' second appeal. A few facts may be noticed.

The plaintiff-appellants filed a suit for a declaration and injunction that they were owners in possession of the land measuring 12 kanals 11 marlas and that the respondents be restrained from interfering with their possession. They also prayed for a declaration that the ex parte decree dated March 22, 1971 obtained by defendant Nos. 1 to 7 against the plaintiffs and defendant No. 8 was vitiated by fraud and would not bind them. The learned trial court found that the Dharamshala and Piyao - the plaintiffs - are the owners of half share in the land in dispute. Defendant Nos. 1 to 7 were the mortgagees in respect of the other half of the land and that their rights had ripened into ownership. It also found that the plaintiffs having not served with a notice of the suit, the exparte decree dated March 22,1971 would not bind them. Consequently, the suit filed by the plaintiff-appellants was partly decreed. They were not satisfied. They filed an appeal. The appellate court having affirmed the findings recorded by the trial court, they have filed the present second appeal.

Mr. Mr. R.S. Mittal has contended that the plaintiffs are the owners in possession of the whole land and that the findings recorded by the two courts cannot be sustained. Counsel has referred to the jamabandi entries of the years 1940-41 and 1944-45 to contend that the land in dispute was in the possession of the plaintiffs -the Dharamshala and Piyao. Counsel has further contended that by virtue of the provisions of Article 63 of the Limitation Act, 1963, the defendants had lost their right to claim foreclosure of the mortgage. The claim made on behalf of the appellants has been controverted by Mr. S.S. Ahlawat, counsel for the respondents.

Admittedly, the dispute is regarding 12 kanals and 11 marlas of land. It is also not disputed that half of this land was initially owned by Ganga Ram and the other half vested in Tota and Kanhi. It is also not disputed that Ganga Ram had mortgaged his share in the land in favour of Tota and Kanhi. On the death of Ganga Ram, a mutation was entered on January 6, 1929 in favour of his widow Jhunnia in respect of the mortgagee rights regarding one half of the land. In the year 1932, Tota and Kanhi had gifted their half share in favour of the Dharamshala and Piyao - the plaintiffs. Almost four years later, jhunnia had gifted her rights as a mortgagor in favour of the plaintiffs. However, there is nothing on record to even remotely indicate that the ownership rights in respect of the land besides that gifted by Tota and Kanhi, had ever been given to the plaintiffs. Counsel for the appellants is unable to explain as to how an entry could be made with regard to possession of the whole land in their favour. It is the admitted position that Tota and Kanhi who were the mortgagees of the land in dispute were actually in physical possession of the land prior to the entry in the Jamabandi for the year 1940-41. The plaintiffs have brought no evidence on the record to even suggest that they had even dispossessed Tota and Kanhi or their successor-in-interest viz. defendant Nos.1 to 7 from the land in dispute. In this situation, the finding recorded by the lower appellate court that "there is no material justify the change in the revenue record" has to be sustained. This is all the more so in view of the fact that in the Jamabandis for the years 1958-59 onwards, the Dharamshala and Piyao are shown as Owners in possession in respect of only half of the total land. In this view of the matter, the first contention raised by the counsel for the appellants has to be rejected.

Equally untenable is the plea that the defendant-respondents had lost their right to claim foreclosure of the mortgage as the limitation of 30 years had already elapsed. This contention cannot be entertained as no such plea had been raised in the plaint. The appellants cannot be permitted to make out a totally new case at the stage of second appeal. Still further, there is no evidence on record to show that the appellants were given possession of the land in dispute in the year 1936-37 when Jhunnia had gifted her rights as a mortgagor in their favour. It is clearly established on the record that defendant-respondent Nos.1 to 7 have been in possession of the land in dispute for the last more than 90 years. In this situation, the finding of the courts below that they had become owners by prescription, cannot be said to be wrong or untenable. It is, accordingly, confirmed. In any event, under Article 61, a mortgagor or any one claiming through him can redeem or Recover possession within 30 years. Ganga Ram had admittedly mortgaged the land in the year 1902. His right to redeem it had expired in the year 1932. The plaintiffs cannot now claim that they can recover possession of the land in dispute.

No other point had been urged.

In view of the above, there is no merit in this appeal. It is, consequently, dismissed. In the circumstances, the parties are left to bear their own costs.