RSA No. 4600 of 2012

1

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA No. 4600 of 2012 (O&M)

Date of decision 02.07. 2015.

Mahma Singh @ Maha Singh and others

...... Appellants.

versus

Gurmej Singh

...... Respondent.

CORAM :- HON'BLE MR.JUSTICE K.C.PURI.

1. Whether Reporters of Local Newspapers may be allowed to

see the judgment?

Yes

2. To be referred to the Reporters or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

Present : Mr. C.B.Goel, Advocate for the appellant.

Mr. Arvind Bansal, Advocate for the respondent.

K.C.PURI, J.

Defendant-appellant-Mahma Singh @ Maha Singh and others

have directed the present appeal against the judgment and decree dated

04.08.2012 passed by Shri D.S.Sheoran, learned District Judge, Kaithal

vide which the appeal preferred by the defendant against the judgment and

decree dated 03.03.2010 passed by Mr. Devinder Singh, learned Additional

Civil Judge (Senior Division), Guhla, was dismissed.

2.

The case of the plaintiff in brief is that suit land comprising of

Khasra No.187/6/1 situated at village Bhagal along with other land was

RSA No. 4600 of 2012

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mortgaged with possession by one Kanha, predecessor-in-interest of the

defendants vide mutation No.480 dated 27.6.1992. He along with other

mortgagors namely Chanan Singh, Massa Singh and Hardial Singh have

initiated separate proceedings for redemption of the land. The defendants

have no right, title or interest to change the nature or user of the land in

dispute by raising construction thereon forcibly and illegally. Despite

repeated requests, the defendants are not admitting the claim of the plaintiff.

Hence the suit.

3.

On put to notice, defendants appeared and filed written

statement taking preliminary objections qua maintainability, barred by

limitation bad for non-joinder of necessary parties etc. . On merits, it is

pleaded that right of the plaintiff to get the suit land redeemed stood

extinguished. They have become the owners in possession of the suit land.

The mortgage in question is more than 80 years old. The right of the

plaintiff stands extinguished by lapse of time. The defendants have acquired

the ownership rights being mortgagees with possession by prescription. All

other averments of the plaint were denied being wrong and incorrect.

4.

Replication was filed. From the pleadings of the parties,

following issues were framed :-

1.

Whether the defendants are not entitled to change the

nature and user by way of raising construction or

otherwise in any manner ?OPP

2.

Whether the suit of the plaintiff is not maintainable in the

present form ? OPD

3.

Whether the plaintiff has no locus standi to file the

present suit ?OPD

4.

Whether the suit is barred by limitation ?OPP

RSA No. 4600 of 2012

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5.

Whether the suit is bad for misjoinder of necessary

parties ? OPD

6.

Relief.

7.

The parties have led their respective evidence on the aforesaid

issues. After appraisal of the same, the trial Court decreed the suit of the

plaintiff and restrained the defendants from changing the nature and user of

the suit land by way of raising construction or otherwise in any manner,

illegally and forcibly vide judgment and decree dated 03.03.2010.

8.

Feeling dissatisfied with the aforesaid judgment and decree

dated 03.03.2010, the defendants directed the First Appeal, which was

dismissed by learned District Judge, Kaithal vide judgment and decree

dated 04.08.2012 after re-appraisal of the evidence.

9.

Still feeling dissatisfied with the judgment and decree dated

03.03.2010 and judgment and decree dated 04.08.2012, the present regular

second appeal has been directed.

10.

The appellant in paragraph No.14 of the grounds of appeal has

mentioned that following substantial questions of law have arisen in the

present reg