Himachal Pradesh High Court
Devi Ram And Another vs Harinder Kumar on 5 December, 2025
( 2025:HHC:42167 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.256/2025 Date of Decision: 05.12.2025 .
Devi Ram and another .....Appellants
Versus
Harinder Kumar
.....Respondent
Coram
of
The Hon'ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellants : Mr. Nishant Khidtta, Advocate.
rt
For the Respondent . Nemo.
Bipin Chander Negi, Judge (oral).
This Regular Second Appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 04.08.2025 passed by the learned Additional District Judge, Nahan, District Sirmaur H.P. in Civil Appeal No. 17-N/13 of 2023 titled as Devi Ram and another vs. Harinder Kumar, whereby the learned Appellate Court has dismissed the appeal of the appellants and affirmed the judgment and decree dated 29.02.2020 passed by learned Senior Civil Judge, Nahan, District Sirmaur, H.P. in Civil Suit No. 61/1 of 2015.
2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in which they were referred before learned Trial Court.
1Whether reporters of Local Papers may be allowed to see the judgment? YES ::: Downloaded on - 12/12/2025 20:41:46 :::CIS 2
3. The case of the plaintiff as discernible from the plaint is that land bearing Khata/Khatauni No. 28/52, comprising Khasra No. 320, measuring 3-15 bighas, situated at Mauja Kotla-Molar, Tehsil .
Nahan, District Sirmaur, H. P. (hereinafter referred to as the 'suit land') was owned and possessed by the predecessor-in-interest of the plaintiff namely late Sh. Nanta, son of Sh. Jhaklu, who was succeeded by late Sh. Bishna, son of Sh. Nanta and late Sh. Bishna of was succeeded by the plaintiff. Similarly, the defendants No. 1 & 2 are the successors of late Sh. Geeta Ram and Mahantu, sons of rt late Sh. Ram Bhaj, residents of village/Mauja Kotla-Molar, Tehsil Nahan, District Sirmaur, H. P., who were the original mortgagees of the suit land. The suit land is stated to be in possession of the defendants. It is also the case of the plaintiff that in order to meet the contingencies, the suit land was mortgaged by the predecessor-
in-interest of the plaintiff in the month of January/February, 1948, for a sum of Rs.40/-, in respect of which, Mutation No. 83 dated 06.06.1948 was attested and possession of the suit land was also delivered to the predecessor-in-interest of the present defendants and since then, the suit land has been in their physical possession and they are enjoying the fruits thereof.
4. It is further the case of the plaintiff that out of the suit land, 3 bighas is very fertile and the annual income from the said land exceeds the mortgage money of Rs.40/-, which is the minimum possible from the type and kind of the land and crops such as ::: Downloaded on - 12/12/2025 20:41:46 :::CIS 3 ginger; thus, the defendants have derived benefits from the possession and crop of the suit land 100 times more than the original mortgage amount and as such defendants are not entitled .
to any amount or original mortgage amount of Rs.40/- as per Section 8 of the H. P. Debt Reduction Act, 1976 and the plaintiff is entitled to get the land redeemed and possession restored without payment of the original mortgage amount. In light of these facts, the of suit was filed with a prayer for a decree of possession of the suit land by way of redemption under Sections 5, 6 & 8 of the H. P. Debt rt Reduction Act, 1976, without payment of the original mortgage amount, with an alternative offer to pay any amount found due.
5. The suit was contested by the defendants by filing a joint written statement raising preliminary objections regarding maintainability; concealment of material facts; the plaintiff not approaching the Court with clean hands; the suit being time-barred;
lack of cause of action; lack of locus standi; lack of jurisdiction; and that the plaintiff is neither the legal heir of deceased Sh. Bishna or Sh. Nanta nor has any relation with them. On merits, it was asserted that the plaintiff is neither the successor nor legal heir of late Sh.
Nanta, as the families are separate, and that the plaintiff is in fact the successor of one Sh. Satya Pal, son of Sh. Layak Ram. It was further the case of the defendants that over the suit land, late Sh.
Hirda Ram was a non-occupancy tenant prior to 100 years and after his death, Sh. Sahi Ram was recorded as non-occupancy tenant in ::: Downloaded on - 12/12/2025 20:41:46 :::CIS 4 Samvat 1985-86 and after his death Sh. Ram Bhaj was recorded as Gair Marusi (tenant). The defendants specifically denied the factum of mortgaging the suit land, asserting that the entry regarding the .
mortgage is null and void and that their predecessors were non-
occupancy tenants since prior to 1945 and have been in possession as Gair Marusi Kastkar, not as mortgagees, and that they developed the ruined land by spending huge amounts. They also asserted that of Mutation No. 83 is wrong, that the value of the land exceeds Rs. 30,00,000/-, ousting the Court's jurisdiction, and denied the rt plaintiff's requests for possession. The plaintiff filed a replication, reiterating the plaint's averments.
6. On the pleadings of the parties, the Trial Court framed the following issues:
1. Whether the plaintiff is entitled for a decree for possession of the suit land by way of redemption under Sections 5, 6 & 8 of the H. P. Debt Reduction Act, 1976, as claimed? OPP.
2. Whether the suit of the plaintiff is not maintainable, as alleged? OPD.
3. Whether the plaintiff has concealed the material facts from the Court, if so its effect? OPD.
4. Whether the plaintiff has not approached the Court with clean hands, as alleged? OPP.
5. Whether the suit of the plaintiff is time barred, as alleged? OPD.
6. Whether the plaintiff has no cause of action to file the present suit as alleged? OPD.
7. Whether the plaintiff has no locus standi to file the present suit, as alleged? OPD.::: Downloaded on - 12/12/2025 20:41:46 :::CIS 5
8. Whether this Court has no jurisdiction to try and entertain the present suit, as alleged? OPD.
9. Whether neither the plaintiff is legal heir of deceased Sh. Bishna or Nanta nor he has any .
relation with late Sh. Bishan or Nanta, as alleged?
OPD.
10. Relief.
7. The parties led evidence. The Trial Court, upon appreciation of evidence. Partly decreed the suit of the plaintiff. .
of Aggrieved thereby the defendant preferred the first appeal. In the first appeal, the appellant-plaintiff contended that the Trial Court erred in law and fact. As it did not appreciate the oral as well as rt documentary evidence on record and arrived at wrong conclusion. It was further averred that the entire case of the appellants was based on documents and once it was apparently clear that the appellants, their predecessor-in-interest were non-occupancy tenant over the suit land, the change in old revenue records without any base was illegal and arbitrary. The first appellate court, however, after re-
appraising the evidence and considering the arguments, affirmed the findings of the Trial Court and dismissed the appeal. Hence, the present second appeal.
8. Heard counsel for the appellants, perused the impugned judgements.
9. The core of the dispute hinges on the nature of the defendants' possession and the plaintiff's right to seek redemption.
The plaintiff's claim of being the successor-in-interest to the original mortgagor, late Sh. Bishna, is found to be established. A critical ::: Downloaded on - 12/12/2025 20:41:46 :::CIS 6 admission by defendant Devi Ram (DW-1) in his cross-examination reveals that Sh. Bishna had executed a Will in respect of his land in favour of the plaintiff. This judicial admission, in terms of Section 58 .
of the Indian Evidence Act, conclusively proves the plaintiff's status as the legal representative of the mortgagor, rendering superfluous any further inquiry into family registers or pedigrees. Consequently, the objections regarding the plaintiff's locus standi and his lack of of relation to the original owner are untenable.
10. The defendants' primary defence, that their rt predecessors were non-occupancy tenants (Gair Marusi Kastkar) and not mortgagees, is not substantiated by the evidence. While the defendants produced jamabandis for Samvat 1985-86 and 2000-01 (Exts. DW-1/C and DW-1/D) showing an entry of tenancy in favour of Sahi Ram and later Ram Bhaj, they failed to produce any subsequent revenue record to demonstrate the continuity of this tenancy status beyond Samvat 2000-01. Crucially, their own document, the Khasra Girdawari for Samvat 2014-15 (Ext. DW-
1/G), makes no mention of tenancy; instead, it records Bishna as the owner/mortgagor and Mahantu as the mortgagee.
11. Conversely, the plaintiff has conclusively proven the existence of the mortgage. The foundation is the roj-namcha wakiati report (Ext. PX) of March 1948, a public document recorded by the Patwari in the discharge of his official duty, which details the transaction where Nanta mortgaged the suit land for Rs.40/- to Gita ::: Downloaded on - 12/12/2025 20:41:46 :::CIS 7 Ram and Mahantu, with possession delivered on the spot. This report validly led to the attestation of Mutation No. 83 on 06.06.1948 (Ext. PW-1/C). The revenue record consistently reflects this .
relationship thereafter. The latest jamabandi for the year 2009-10 (Ext. PW-1/D) explicitly records the plaintiff as the owner and Mahantu (and upon his death, the defendants) as mortgagees in possession.
of
12. Therefore, the defendants' claim of independent statutory tenancy rights is rejected. Their possession is legally rt attributable to the usufructuary mortgage created in 1948. As the successor-in-interest to the mortgagor, the plaintiff possesses the equitable right of redemption. Furthermore, the plaintiff's unchallenged testimony that the defendants have derived usufruct from the fertile land for over seven decades, an income far exceeding the principal sum of Rs.40/-, finds support in the provisions of Section 8 of the H.P. Debt Reduction Act, 1976. The object of this Act is to grant relief to debtors, and its provisions have an overriding effect. Accordingly, the plaintiff is entitled to redeem the mortgage and recover possession of the suit land without payment of the original mortgage amount, as the same is deemed to have been satisfied through the usufruct. In light of this finding, the suit is perfectly maintainable, the plaintiff has approached the Court with a valid cause of action and clean hands, and there is no concealment of material facts.
::: Downloaded on - 12/12/2025 20:41:46 :::CIS 813. In the aforesaid facts and attending circumstances, there arises no question of law, much-less a substantial question of law for consideration of the Court, therefore, the appeal is dismissed .
being devoid of any merit. Pending miscellaneous applications, if any, also stand disposed of.
(Bipin Chander Negi) Judge 05th December, 2025 of (tarun/T.B) rt ::: Downloaded on - 12/12/2025 20:41:46 :::CIS