The interpretation of Section 11 of the Himachal Pradesh Ceiling of Land Holding Act, 1972 and its impact on the rights of mortgagees.

Sureshwar Thakur, J.

The plaintiffs instituted a suit against the defendants, claiming therein a declaratory decree by way of foreclosure besides a decree for permanent prohibitory injunction being rendered with respect to the suit property. The suit of the plaintiffs stood decreed by the learned trial Court. In an appeal carried therefrom by the defendant/respondent herein before the learned First Appellate Court, the latter Court allowed the appeal, whereupon, it disconcurred with the verdict recorded by the learned trial Court. In sequel thereto, the plaintiffs/appellants herein are driven to institute the instant appeal herebefore.

2. Briefly stated the facts of the case are that the predecessor-in-interest of the plaintiffs was inducted as mortgagee by the predecessor-in-interest of the defendant, i.e. one Shri Bala Ram, son of Shri Nankoo, on the land comprised in Khasra Nos. 13 and 21, kitas 2, measuring 2.5 bighas, situated in mauja Shalau, Pargana Bagri Khurd, Tehsil Kandaghat, District Solan, H.P. for consideration and mutation Nos.11 and 19 were sanctioned accordingly in Samvat 1964, Baisakh 8. Since then, the predecessor-in-interest of plaintiffs and thereafter the plaintiffs have been coming in possession of the aforesaid land. The aforesaid land was vested in the State of Himachal Pradesh, in the year 1974-75. By that time, the plaintiffs and their predecessors-in-interest had already become owners in possession of the above said land by lapse of 30 years time since the date of mortgage as the predecessor-in-interest of the defendant had failed to get the said land redeemed within the prescribed period but the plaintiffs are shown as mortgagees under the State of Himachal Pradesh. Hence, vestment of the aforesaid land in the State of Himachal Pradesh/defendant itself is wrong, illegal and void. The revenue entires contrary to it and not showing the plaintiffs and their predecessors-in-interest as owners, after 30 years of the mortgage are wrong and illegal. As stated above, the plaintiffs have already become in owners in possession of the suit land by lapse of 30 years' time since the date of mortgage as to no moment of time, mortgage money was paid to the plaintiffs for their predecessors-in-interest. Hence, the defendant is duty bound under the law to get the revenue entries changed and corrected in favour of the plaintiffs and thereby showing the plaintiffs to be owners in possession of the suit land referred to above.

3. The defendant contested the suit and filed written statement, wherein, it has taken preliminary objection qua locus standi, estoppel, no cause of action, suit being bad for non joinder of necessary parties and jurisdiction. On merits, the defendant has not disputed that the suit land was in possession of the plaintiffs as mortgagee and Smt. Nazo wife of Shri Ram Saran, was the mortgagor of the suit land. But it is contended by the defendant that on promulgation of H.P. Ceiling of Land Holding Act, 1972, the land held by Smt. Nazo, show in the Ceiling return as surplus and the Collector, Sub Division, Kandaghat, declared the surplus other land as also the suit land and vested it to the State of H.P. vide order dated 13.01.1975. Mutation No.220 of 22.7.1975 was also attested in favour of the State of H.P., the status of the mortgagees remained as it was. The present plaintiffs have failed to file their objections before the Collector, Sub Division, Kandaghat at the time of hearing of the ceiling case and therefore, the suit land has rightly been vested to the State of H.P. The defendant has further pleaded that the plaintiffs are only entitled to receive the mortgaged amount as they are mortgagees under the H.P. Government.

4. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:-

1. Whether the plaintiffs have become owners-in-possession of the suit land by efflux of time, as alleged? OPP.

2. Whether the plaintiffs have no loc