Advocates:
Advocate Appeared:
For the Appellant :Ms. Harveen Kaur, Advocate
For the Respondent:Mr. Pardeep Rajput, Advocate

JUDGMENT :

Alka Sarin, J.

The present regular second appeal has been preferred by the defendant-appellants challenging the judgment and decree dated 24.02.1989 passed by the Trial Court and the judgment and decree dated 10.02.1993 passed by the First Appellate Court.

2. The brief facts relevant to the present case that the plaintiff- respondent No.1 filed a civil suit averring that the land in dispute had been mortgaged in 1942-43 by one Jai Karan in favour of his son Suram Chand. It was alleged that Suram Chand died on 14.12.1981 leaving a Will in favour of the plaintiff-respondent No.1 and thus the plaintiff-respondent No.1 had stepped into the shoes of Suram Chand. The mortgage had not been redeemed either by Jai Karan i.e. the original owner or his successors-in- interest and thus by efflux of time the plaintiff-respondent No.1 had become owner in possession of the land in dispute. Written statement was filed by the defendant-appellants wherein it was denied that the land in dispute was mortgaged by Jai Karan in favour of Suram Chand besides taking other preliminary objections. The execution of the Will by Suram Chand in favour of the plaintiff-respondent No.1 was also denied. Replication was filed controverting the pleas raised in the written statement and reiterating those taken in the plaint.

3. On the basis of the pleadings of the parties the following issues were framed by the Trial Court :

1. Whether deceased Jai Karan mortgaged the property in suit with possession to his son Suram Singh in year 1940 ? OPP

2. Whether Suram Singh executed a valid will dated 14.12.1981 in favour of the plaintiff ? OPP

3. If issue No.1 is proved, whether said Jai Karan or his successors/LRs have not got redeemed the property and as such plaintiff has become owner of the same by way of afflux of time ? OPP

4. Whether Jai Karan had mortgaged the property in suit to Nathu son of Dheru r/o village Bhatoli and got redeemed the same in the year 1942 on payment of Rs.400/- as mortgage money ? If so, its effect ? OPD

5. Whether the plaintiff has no locus standi to file the present suit ? OPD

6. Whether the plaintiff is estopped to file the present suit by his own acts and conduct ? OPD

7. Whether the suit is barred under order 23 Rule 1 as well as under Order 2 Rule 2 CPC ? OPD

8. Whether the suit is bad for mis-joinder of parties ? OPD

9. Whether no cause of action has arisen to the plaintiff to file the present suit ? OPD

10. Relief.

4. The Trial Court decreed the suit vide judgment and decree dated 24.02.1989. Aggrieved by the same, some of the defendant-appellants (being LRs of original defendant Nos.1 to 3) preferred an appeal before the First Appellate Court which appeal was dismissed vide judgment and decree dated 10.02.1993. Hence, the present regular second appeal which has been preferred only by the LRs of original defendant No.1.

5. Learned counsel for the defendant-appellants would contend that the suit itself was not maintainable as the same was filed on the ground that the plaintiff-respondent No.1 had become owner in possession of the land in dispute by prescription of time as the suit property had not been redeemed within the statutory period of 30 years. Reliance has been placed by the learned counsel on the decision in the case of Ram Kishan & Ors. Vs. Sheo Ram & Ors. [2008 (1) RCR (Civil) 334] which has been affirmed by the Supreme Court in the case of Singh Ram (D) through LRs Vs. Sheo Ram & Ors [AIR 2014 SC 3447].

6. Per contra, the learned counsel for the plaintiff-respondent No.1, who is the contesting respondent, has contended that both the Courts have concurrently found that the land in dispute had not been redeemed within the statutory period and hence the suit was rightly decreed.

7. I have heard the learned counsel for the parties.

8. As per the law laid down by a Constitution Bench of the Hon'ble Supreme Court in the case of Pankajakshi (dead) through LR's & Ors. vs. Chandrika & Ors. [2016 (6) SCC 157] there is no requirement for fram