Sohan Singh vs Kapur Singh

V.K. Bali, J.

This appeal is preferred by the defendant Sohan Singh against the judgment and decree passed by the trial Court which was affirmed in appeal by Additional District Judge, Kapurthala.

Briefly stated the case of the plaintiffs is that they are owners of the land measuring 6 Kanals 16 Marlas fully detailed in the plaint, on account of the fact that they being mortgagees from Labh Singh the land has not been redeemed for over a period of 30 years. The unassailable findings recorded by the Courts below are that Labh Singh, predecessorininterest of defendants No. 1 to 6 mortgaged the suit land with possession to Karnail Singh and that predecessorininterest of the plaintiffs remained in possession of the land as mortgagee. After the death of predecessorininterest of the plaintiffs, the plaintiffs themselves were in possession of the suit land and that till such time the suit was filed i.e. in 1984, no steps whatsoever were taken by Labh Singh to redeem the land. The aforesaid facts are not proved only from mutation that came into being but also from excerpt Ex. P1.

The learned counsel for defendantappellant Sohan Singh had not been able to point out anything that might require interference in the concurrent finding of fact recorded by the Courts below. He, however, strenuously contends that the land subject matter of mortgage was owned by two brothers i.e. Labh Singh and Sohan Singh appellant and inasmuch as Labh Singh alone had mortgaged the land, the plaintiffs, at the most would become owners of the same to the extent of 1/2 share belonging to Labh Singh and, therefore, the decree granted by the Courts below representing the share of appellant Sohan Singh also cannot be sustained.

After hearing the learned counsel for the parties and perusing the record, I am of the view that the contention of learned counsel deserves to succeed only half way through. A perusal of record would show that Labh Singh and Sohan Singh two real brothers were owners of considerable land and "Khewat" from which the land subjectmatter of dispute was mortgaged, was owned by both the brothers in equal shares. Likewise in another "Khewat" as well, both the brothers, were jointly recorded as owners. Admittedly Labh Singh alone was in possession of land subjectmatter of mortgage. He could, thus, mortgage the land in dispute which is admittedly not in excess of his share but inasmuch as the same represented 1/2 share of Sohan Singh appellant, as well, it cannot be treated to be mortgaged on behalf of Sohan Singh as well. Whereas it is permissible for a coowner to sell or mortgage specific khasra numbers not exceeding his share, it is equally well settled that the one who gets rights under such a sale or mortgage would have such rights subject to adjustment of the shares of the parties in partition.

In view of what has been said above, the mortgage which has ripened into ownership by effluence of time in favour of mortgagees has to be protected with the rider that Sohan Singh would be well within his right to ask for adjustment of his share at the time of partition that may be set in motion by him whenever he may so choose. With the modification as indicated above, this appeal is dismissed leaving the parties to bear their own costs.