Preliminary Decree – In a suit for possession by way of redemption of mortgage, the court is not entitled to pass a decree for possession without passing a preliminary decree

Mr. Anil Kshetarpal, J.:- The defendants-appellants are in the regular second appeal against the judgments passed by the courts below, while decreeing the suit for possession by way of redemption of mortgage.

2. In the considered view of this Court, following substantial questions of law arise for determination:-

(i) Whether in a suit for possession by way of redemption of mortgage, the court is entitled to pass a decree for possession without passing a preliminary decree as provided in Order 34 Rule 7 of the Code of Civil Procedure?

(ii) Whether a decree for removal of some super structures can be passed by the court, once it is proved that the parties are co-sharers?

3. Some facts are required to be considered. Out of total land measuring 333 kanal, half share thereof was owned by Ajudhiya Nath son of Mahant Ram and remaining half share of the property in equal shares was owned by Tarlok Nath, Krishan Nath, Arbindu Nath-plaintiff and Mohinder Nath-defendant No. 7, sons of Prem Nath. It is claimed by the plaintiff that there was a private partition among owners and 168 kanal and 11 marla came to the share of Ajudhiya Nath, who mortgaged the land falling to his share in favour of Hakam Singh, Lal Singh, Bishan Singh, Kishan Singh and Tehal Singh for Rs.4500/-. Thereafter, Ajudhiya Nath sold his share of land to Lachhman Singh, Gurbax Singh and Gurcharan Singh for Rs. 10,000/- on 04.11.1941. The aforesaid sale was pre-empted by the plaintiff, defendant No. 7 and Tarlok Nath. The decree passed for possession by way of pre-emption was a conditional decree, subject to the deposit of the amount before 15.04.1949. It is further case of the plaintiff that in lieu of total land measuring 333 kanal, after consolidation of holdings, land measuring 267 kanal and 9 marla was allotted. It is further claimed that in a family settlement, land measuring 164 kanal and 9 marla was allotted to Tarlok Nath, Krishan Nath, Arbindu Nath and Mohinder Nath. Tarlok Nath and Krishan Nath sold their half share, whereas plaintiff-Arbindu Nath and Mohinder Nath-defendant No. 7 mortgaged their remaining half share to Khushal Singh-predecessor-in-interest of defendants No. 1 to 6. Thereafter Mohinder Nath-defendant No. 7 sold his 1/4th share to Khushal Singh, predecessor-in-interest of defendants No. 1 to 6. Thus, the mortgage amount was adjusted when Khushal Singh became owner of share sold by Mohinder Nath.

4. This suit was contested by Arbindu Nath, claiming possession by way of redemption. Before this Court, entitlement of the plaintiff to redeem the land is not in dispute.

5. Learned counsel appearing for the appellant has a limited grievance. He has submitted that the learned trial court erred in passing a decree for possession without passing a preliminary decree for redemption of the mortgage as provided in Order 34 Rule 7 of the Code of Civil Procedure. He has further submitted that both the courts below have erred in recording a finding that the land comprised in Khasra No. 147 measuring 3 kanal and 15 marla is not part of the joint khewat. He drew attention of the court to copy of jamabandi for the year 1958-59, wherein it is apparent that the land comprised in Khasra No. 147 is part of joint khewat. Hence, he has submitted that in absence of any evidence of partition of the joint khewat, both the courts below erred in passing a decree for possession particularly when in the plaint itself, the plaintiff has pleaded that partition proceedings are pending.

6. On the other hand, learned senior counsel for the respondents has defended the judgments passed by the courts below. He has submitted that a preliminary decree was only a formality. He has further submitted that the land comprised in Khasra No. 147 is part of separate khewat No. 117, as per jamabandi for the year 1982-83. Hence, he has submitted that both the courts below have correctly passed the order, granting a decree for possession.

7. This Court has heard the learned counsel for