Ram Vs. Saroop Ram & Anr  INSC 724 (10 May 1996)
K. Ramaswamy, K.G.B. Pattanaik (J)
JT 1996 (6) 527 1996 SCALE (5)201
O R D
appeal by special leave arises from the judgment and order dated August 25, 1993 made in Regular Second Appeal
No.2311/92 by the Punjab & Haryana High Court. The appellant laid this suit
on April 8, 1986 for declaration and possession of
the plaint suit property on the plea that it had fallen to his share through
private partition and thereafter he has become the absolute owner thereof. The
trial Court as well as the appellate court disbelieved the evidence which held
that the appellant is not in exclusive possession. It was contended in the
appeal before the High Court and repeated in the special leave petition that he
had redeemed the property by himself. Therefore, by subrogation he became the
mortgagee unless other co-owner redeem the mortgage from him he remains as
mortgagee and the suit should have been decreed on that basis.
respondents have filed counter affidavit in that behalf. They are denying the
allegation that the appellant alone had redeemed the mortgage of one of the
items of property. It was joint redemption by co-owners. It was also pointed
out that the trial Court and the appellate Court had gone into the question and
negatived the contention of the appellant. It was contended for the appellant
that in view of the admitted position of the appellant's payment of the
mortgage amount to the Commissioner of Custodian of Evacuee Property and in
view or entries. for one of the years in the mutation that he was in
self-cultivation, it must be construed that the appellant alone had redeemed
the mortgage thereof. After subrogation he became the mortgagee until
redemption by the co-owners, his possession as a mortgagee cannot be disturbed.
We find no force in the contention.
there is no such specific pleadings. Secondly, no such issue was raised. Even
then in view of the evidence on record recorded by courts below, they have gone
into the question, observing thus:
if the minor contradictions in their evidence are ignored the documentary
evidence available on the record is sufficient to show that the application for
redemption was moved by all the three brothers i. e. the plaintiff and
defendants, and it was granted in their favour on 9.2.60. In pursuance of this
order of redemption the mutation was sanctioned in Favour of all the brothers,
who sent on being recorded joint owners in joint possession of the suit land
from 1961 towards and in joint possession of the suit land from 1961 onwards
till the date of the filing of the suit.
the documentary evidence shows that the suit land was got redeemed by all the
brothers jointly and they are Continuing in joint possession and joint
ownership of this land since the time of its redemption. This land was
mortgaged only for Rs.494/- and was redeemed for a total sum of Rs.506/-. So
the evidence of the plaintiff to the effect that he spent Rs.4000/- on getting
the land redeemed is also untrue.
Cort held that the trial Court has thus rightly concluded after carefully
screening of the evidence that. the land described in the head-note (d) of the
plaint was got redeemed by all three brothers and they are owners in possession
of the land in equal shares.
as the statement of PW 4 Kailash Chand is concerned, it is true that from his
statement. it is proved that the plaintiff deposited the amount of Rs.506/-,
but on whose behalf he had deposited this amount, is not clear, because this
fact can be proved only by the Treasury Voucher which has not been placed on
records nor PW 4 Kailash Chand has brought the treasury voucher.
P-10 is the order of redemption which shows that the suit land was redeemed by Sarup
Ram, Daulat Ram and Room Singh, sons of Prem Singh collectively.
P-4 is Khasra Girdawari for the period Swani 1961 to Rabi 1985 and this Khasra Girdawari
is in the name of plaintiff as co- sharer. Ex. P-5 is the Jamabandi for the year
1962-63 which show the possession of Daulat Ram as Co- sharer over the
aforesaid land and all the three brothers are shown as co-owners. In the column
No.12 of this document mutation No.701 of redemption of mortgage is mentioned.
In ex. P-6 Jamabandi for the year 1969-70 all the three brothers are shown as
owners and plaintiff is shown as in cultivating possession.
result of my foregoing discussion it is not proved that the plaintiff alone got
the aforesaid land redeemed and that he (plaintiff) is in continuous
cultivating possession over the said land. Of course, possession exclusively
from 1961 to 1970, but that is too as a co-sharer." In view of this
evidence and findings it must be concluded that all the co-sharers have jointly
redeemed the property and thereafter it become a joint property of the
brothers. The appellant no longer a mortgagee. The concurrent findings are that
there was no private partition in which the property claimed to have been
allotted to him was specifically negatived by the courts below, we do not think
that there is any ground warranting our interference into the matter. The
appeal is accordingly dismissed. No costs.