Point of Law : Redemption of mortgage property – A party seeking injunction, has to prove his possession over the suit land from the date of accrual of cause of action.

ORDER :

This appeal under Section 100 of Code of Civil Procedure arises out of concurrent judgments & decrees passed by learned Courts below, partly decreeing the suit filed by the appellant for injunction.

2. A suit for permanent prohibitory injunction was instituted by the appellants against the respondents. Appellants pleaded that they were owners in possession of the land comprised in Khata No.147, Khatauni No.220, Khasra Nos.528, 530, 531, 532, 533 and 537, measuring 0- 09-61 hectares situated at Mohal Lahar, Mauza Lambagaon, Tehsil Jaisinghpur, District Kangra.

2(a). Plaintiffs averred therein that the defendants without any right, title and interest had encroached two marlas of the suit land by raising structure thereupon. That they were interfering over the suit land with an intention to encroach and take forcible possession of remaining part of the land.

2(b). Respondents/defendants on merits took up the defence that the suit land was mortgaged by the plaintiffs/their predecessors with one Shri Bhuttu son of Sardha son of Dholak (predecessor-in-interest of defendant No.1) to the extent of ½ share, with Shri Nathu Ram son of Mangatu to the extent of ¼ share and with Shri Dinu and Kishori sons of Mangatu in equal share to the extent of ¼ share. Shri Bhuttu expired and his rights were inherited by defendant No.1 and his brother Shri Amar Nath.

On 4.6.1976, plaintiff had moved an application under Section 4 of the H.P. Redemption of Mortgage Act 1971 seeking redemption of the suit land. This application was dismissed on 9.8.1979 on the ground that the period of mortgage had exceeded 30 years and the plaintiff had lost right to redeem the same as this right stood foreclosed. Defendants, therefore, pleaded that they had become owners of the suit land by efflux of time.

It was further the case of the defendants that they had been in possession of the suit land to the extent of ½ share since the time of their ancestors. They had raised a residential house and cow shed over the same. The residential house was constructed on the suit land during the life time of Shri Bhuttu. Further addition to the residential house was made with the Government aid under ‘Indira Aavaas Yojna’ in the year 1997. Defendants also pleaded that the plaintiff had moved an application on 3.1.2001 before the Sub Divisional Magistrate Jaisinghpur, praying for demarcation of the suit land. Defendants denied that they had encroached upon two marlas of the suit land by raising structure thereupon or that they had been interfering over the suit land. Defendants pleaded that plaintiff had become stranger to the suit land and defendant No.1 being successor of Bhuttu and other mortgagees had become owners of the suit land by efflux of time.

3. Parties led evidence in support of their respective contentions. On considering the pleadings, evidence and the contentions raised on behalf of the parties, learned trial Court vide judgment and decree dated 27.8.2018 partly allowed the suit. Learned trial Court held that the mortgage in question was a simple mortgage as provided under Section 58(b) of the Transfer of Property Act. Learned trial Court also returned a finding that there was nothing on record to show that mortgagees had availed any remedy for recovery of mortgage money as per law. The plaintiff was held to be in possession of the suit land except khasra nos. 533 and 537. The suit was, therefore, partly decreed. The defendants were restrained from interfering in the suit land barring Khasra No.533 and 537.

The first appeal preferred by the plaintiffs against the judgment and decree dated 27.08.2018 passed by the learned trial Court was dismissed by the learned First Appellate Court on 2.12.2021. Aggrieved against the concurrent findings of both the learned Courts below, plaintiffs/appellants are now taking third chance by way of instant regular second appeal.

4. Learned counsel for the appellants contended that their suit was required to be decreed in entirety. The d