Om Parkash vs Palu Ram

N.K. Kapoor, J.—This is defendant''s appeal against the judgments and decrees of the Courts below whereby suit filed by the plaintiff has been decreed.

Briefly put, one Jiwan Dass son of Shiv Dayal of village Nagar had 1/4th share in the laud measuring 2 Bighas 5 Biswas comprised in khasra No. 379 situated within the area of village Garni Sari Nam Dar Khan tehsil Gohana. Said Jiwan Dass mortgaged his share vide mortgage deed dated 11-9-1911 in favour of Parmeshwari Dass son of Ram Parsad. Mutation No. 26 dated 10-6 1913 was also entered regarding this mortgage. The plaintiff has alleged that he is the adopted son of Parmeshwari Dass, the mortgagee, whereas the defendant is the successor-in-interest of Jiwan Dass, the mortgagor. The plaintiff has averred that in lieu of khasra No. 379, land measuring 10 Kanals 3 Marlas was allotted during consolidation of holdings which is now comprised in khewat No. 10, khata No. 10, rectangle and killas Nos. 4 /15/2 (5 Kanals 6 Marlas) and 16 (4 Kanals 17 Marlas). It has been stated by the plaintiff that the said mortgage was with possession with Parmeshwari Dass and that he has been in joint possession of the said land from the date of mortgage. He further stated in the plaint that because a period of more than 60 years. has elapsed and the mortgage was not redeemed by the mortgagor or his successors-in-interest, therefore, he (plaintiff) has become the owner of the suit property by afflux of time. As the defendant refused to admit him as owner of the suit land, the plaintiff filed this suit for declaration or in the alternative for joint possession of the suit land as the right of the defendant to redeem the same has extinguished.

The defendant filed written statement controverting the averments made in the plaint. The factum of mortgage was also denied it has been averred that the defendant has been in possession of the land in question as owner. His other pleas are that the suit is barred by limitation; the plaintiff was never adopted; and that even. if the factum of mortgage is established, the land was redeemed.

On the pleadings of the parties, the following issues were framed :-

(1) Whether Parmeshwari Dass had adopted the plaintiff as son ? If so, when and to what effect ?

(2) Whether Jiwan had mortgaged 1/4 share of the land comprised in khasra No. 379 with Parmeshwari Dass ? If so, when, on what terms, for what amount and condition ?

(3) Whether suit land has been allotted in lieu of the land comprised in khasra No. 379 ?

(4) Whether plaintiff''s suit is within time ?

(5) If issue Nos. 1 and 2 arc proved, whether the plaintiff has become the owner of the suit land by expiry of period of limitation to redeem the mortgage as alleged in the plaint ?

(6) Whether the defendant and his predecessor-in-interest had been in possession of the suit land from the time of alleged mortgage and if so, its effect ?

(7) Whether the suit land was redeemed by the defendant or any of his predecessors-in-interest ? If so, who was that and; when it was redeemed ?

(8) Relief.

The trial Court decided issues Nos. 1, 2, 3, 4 and 5 in favour of the plaintiff. Issue No. 6 was decided against the defendant. Issue. No. 7 was also decided against the defendant. Resultantly, the trial Court decreed the suit of the plaintiff.

Dissatisfied with the judgment and decree of the trial Court, the defendant preferred an appeal which, too, was dismissed by the learned Additional District Judge, Sonepat, vide judgment and decree dated 30-1-1980. Hence this appeal.

I have heard Mr. V. K. Jain, Senior Advocate, the learned counsel for the appellant and Mr. Arun Jain, Advocate, the learned counsel for the respondent and have carefully gone through the. records of the case.

Much emphasis has been laid by the learned counsel with regard to the findings of the Courts below in respect of issue of limitation. Submission is two fold. Firstly, that on close examination of the statement of the plaintiff it is quite clear that he remained out of possession for a considerable period, i.e. 15/16 years (though not admitted) which would indirectly imply his ouster and, secondly, even if ouster cannot be inferred, yet the plaintiff could bring such a suit within three years from the expiry of period of redemption; which in this case expired by the end of 1968 and so the suit could be filed by the year 1972. The precise arguments were raised by the party before the Courts below and were rightly repelled.

Admittedly the plaintiff is in joint possession of the suit land alongwith other co-owners and as per law would be deemed to be in occupation of each parcel of the land. There is no plea that the plaintiff was ever divested of his joint possession nor any entry (though not material) in revenue papers reflects so. Mere picking up of a few words from the statement of the plaintiff cannot be construed amounting to ''outset''.

The other argument that cause of action accrued on expiry of period of redemption is quite spacious. It is only a threatened injury which gives a party cause of action; which in the present, as per averments in the plaint, is. The exact intendment of the word first'' occuring in Article 58 of the Limitation Act was considered by a Division Bench of this Court in Ibrahim alias Dharam Vir v. Shrimati Sharifan alias Shanti 1979 P.L.J. 469 and the Court held that cause of action accrues to the plaintiff when the defendant actually threatens. According to the Division Bench judgment even entry of mutation in favour of the defendant would not furnish the plaintiff any cause of action. Thus, it is only when any act or assertion of the defendant by which the plaintiff feels threatened that gives him a cause of action. Thus there is no merit in this plea of the appellant.

No other plea has been raised by the appellant.

12 Consequently, this appeal is without any merit and is accordingly hereby dismissed. No costs.