JUDGMENT :

Instant Regular Second Appeal under Section 100 CPC lays challenge to judgment and decree dated 14.3.2019 passed by learned Additional District Judge-(II), Shimla, H.P. in Civil Appeal No. 7-R/13 of 2016, affirming judgment and decree dated 22.3.2016 passed by learned Civil Judge (Junior Division), Court No. 2, Rohru, District Shimla, Himachal Pradesh in Civil Suit No. 6/71 of 2010/09, whereby suit for redemption with respect to land denoted by Khasra no. 32, measuring 0-21-48 Hectares situate in Chak Jakhar, Tehsil Rohru, District Shimla, Himachal Pradesh (hereinafter, ‘suit land’) came to be dismissed.

2. Precisely, the facts of the case as emerge from the record are that the appellants-plaintiffs (hereinafter, ‘plaintiffs’) filed a suit for redemption with respect to suit land, claiming therein that in the year 1985, defendant No.1 approached the predecessor-in-interest of the plaintiffs and asked him to mortgage some portion of the land comprising of Khasra No. 32 with possession, to which the predecessor-in-interest of the plaintiffs agreed and handed over possession to defendant No.1. He also claimed that the aforesaid document qua mortgage was also written. Plaintiffs claimed that subsequently, when plaintiffs asked defendant No.1 to hand over possession of the land after receipt of the mortgage consideration, defendant No.1 avoided him on one pretext or the other and as such, he had no option but to get the land redeemed through the process of law.

3. Aforesaid claim of the plaintiffs came to be resisted and contested by defendant No.1, who besides taking preliminary objections of pecuniary jurisdiction and limitation, averred that the suit land was previously mortgaged to him with possession but thereafter, plaintiff and his sisters Smt. Jhapti Devi and Smt. Bigoni Devi executed a sale deed in favour of wife of defendant No.1 on 2.2.1983. It is averred by the defendant No.1 that the suit land was mortgaged with defendant No.1 but not in 1985, as claimed by the plaintiff(s), but prior to that and on 2.2.1983, a sale deed has been executed in favour of wife of defendant No.1.

4. Plaintiff(s) filed replication, reiterating the contents of plant and controverting those of the written statement.

5. On the basis of pleadings of the parties, learned trial Court, framed following issues on 6.10.2010:

“(1) Whether the plaintiff is entitled for a decree of possession in respect of the suit land by way of redemption, as prayed for? OPP

(2) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction, as alleged? OPP

(3) Whether this court has no pecuniary jurisdiction to entertain and try the present suit as alleged? OPP

(4) Whether the suit is barred by limitation, as alleged? OPD

(5) Whether no cause of action has accrued to the plaintiff to file the present suit, as alleged? OPD

(6) Whether the plaintiff has not come to the court with clean hands. If so, its effect? OPD

(7) Whether the plaintiff is estopped by his own act and conduct to file the present suit, as alleged? OPD

(8) Whether the suit is not maintainable in the present form, as alleged? OPD

(9) Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD

(10) Relief.”

6. Learned trial Court, on the basis of evidence led on record by respective parties, dismissed the suit of the plaintiffs on three grounds, viz. (1) plaintiff has not brought on record mortgage deed executed between him and defendant No.1, which is the basis of the suit and no other evidence in order to prove the mortgage deed is admissible except the mortgage deed itself in terms of S.91 of the Indian Evidence Act. (2) the General Power of Attorney cannot depose on behalf of the principal about the facts which are/were in the personal knowledge of the principal and (3) defendant No.1 has clearly proved on record sale deed dated 2.2.1983 Ext. DW-1/C, which clearly reveals that the suit property was transferred by the plaintiff and his sisters in favour of