JUDGMENT :

Parmod Goyal, J.

1. Plaintiffs-appellants being aggrieved by judgment and decree dated 10.09.1994 passed by the Civil Judge, Kurukshetra and judgment and decree dated 14.05.1996 passed by the Court of Additional District Judge, Kurukshetra have preferred present appeal.

2. Plaintiffs-appellants had filed a suit for declaration with consequential relief of possession asserting that land measuring 8 Kanals comprised in khewat no. 1 min, Khatoni No. 5, Khasra No. 19/20(8-0) situated at village Chhapra, Tehsil Thanesar, District Kurukshetra. was mortgaged with defendant for a sum of Rs. 5,000/- vide mortgage-deed dated 22.07.1981. The land was subsequently purchased by plaintiffs vide sale-deed dated 22.03.1989, however, same was sought to be pre-empted by the defendant by filing a suit on the ground that he being co-sharer, is entitled to seek pre-emption of sale. However, suit preferred by defendant was dismissed. Plaintiffs vide their application under Section 4 of the Punjab Redemption of Mortgages Act sought for redemption of suit land after depositing a sum of Rs. 5,000/-. The application preferred by plaintiffs-appellants for redemption of land was allowed by Collector vide order dated 12.01.1993. Defendant, however, also claimed possession of suit land being tenant. Plaintiff could not seek physical possession as collector had held possession of defendant that of tenant. The plaintiff, by way of present suit, has challenged the order dated 12.01.1993 passed by the learned Collector, Kurukshetra holding possession of defendant over the suit land to be of tenant and assailed the same to be illegal, null and void and without jurisdiction on the following grounds: -

(a) That plaintiffs were not heard prior to passing of impugned order.

(b) That lease of 2 years from 1977 to 1979 surrendered when suit land was mortgaged, therefore at the time of mortgage, no tenancy existed in favour of defendant and defendant were mortgagee with possession. They were liable to surrender possession on redemption of mortage.

(c) That in suit for pre-emption defendant never claimed himself to be a tenant.

(d) That defendant in pre-emption proceedings, which concluded vide order dated 08.05.1991 claimed his possession to be of mortgagee and accordingly order dated 12.01.1993 passed by Collector holding defendant to be tenant over the land was challenged. Mesne profit of Rs. 5,000/- per year was also sought by the plaintiffs in their suit.

3. Suit was contested by the defendant by filing detailed written statement taking number of preliminary objections regarding locus standi and maintainability etc. of suit preferred by plaintiff. It was asserted that original owner had leased out the land to the defendant at the rate of Rs.1200/- per annum vide mutation No. 488 dated 04.05.1977 from Kharif 1977 to Rabi 1979. The tenancy continued thereafter and defendant is cultivating suit land as tenant and during the period of tenancy, original owner had mortgaged the suit land to defendant. After redemption of mortgage, the tenancy rights had revived and defendant is entitled to possession. It was asserted that during the mortgage, tenancy rights had not come to an end and remained in existence throughout and after redemption of mortgage, he continued as a tenant over the suit property. Accrual of mesne profit was also denied. Replication was preferred by plaintiffs-appellants reiterating facts stated in suit and denying assertions made by defendant in written statement.

4. From the pleadings of the parties, following issues were framed:-

'1. Whether the plaintiffs are entitled to a decree for declaration to the effect that the order dated 12.1.1993 passed by the Collector, Thanesar is illegal, null, void, inoperative, ineffective, uneffective, ultravires and passed without application of mind? OPP

2. whether the plaintiffs are entitled to possession of the suit land alongwith mesne profit from 12.1.93 onwards if so how much? OPP

3. Whether the plaintiffs have