DAULATRAM versus SAROOP RAM AND ANR.

Citation: [1996] SUPP. 2 S.C.R. 852 · Decided: 10-05-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.B. PATTANAIK · Disposal: Dismissed

Judgment (excerpt)

A 
DAULATRAM 
v. 
SAROOP RAM AND ANR. 
MAY 10, 1996 
B 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
Transfer of Property Act, 1882: 
Mortgage-Redemption by co-owner:r-Effect of-Plaintiff-appellant 
C filing suit for declaration and possession of suit property pleading that it had 
fallen to his share through a private pa1tition-Courts below dismissing the 
suit-Plaintiff- appellant contending before High Court and Supreme Court 
that he redeemed the mortgage and by subrogation he became the mo1tgagee 
and until redemption by the co-owners, his possession cannot be dis-
turbed-Held, there is no such specific pleadings nor such issue was raised 
D before trial court-Even otherwise, it is established that co-owners have jointly 
redeemed the property and thereafter it became joint property of the 
brother:r-Plaintiff no longer a mortgagee-Courts below rightly dismissed the 
suit. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9102 of 
E 1996. 
F 
G 
From the Judgment and Order dated 25.8.93 of the Punjab & 
Haryana High Court in R.S.A. No. 2311 of 1992. 
Ujagar Singh and Naresh Bakshi for the Appellants. 
Chander Shekher Ashri for the Respondents. 
The following Order of the Court was delivered : 
Leave granted. 
This 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 
H it had fallen to his share through private partition and thereafter he has 
852 
DAULAT RAM v. SAROOP RAM 
853 
become the absolute owner thereof. The trial Court as well as the appellate A 
court disbelieved the evidence which held that the appellant is not in 
exclusive possession. It was contended in the appeal before the High Cour\ 
and repeated in lhe special leave petition that he had redeemed the 
property by himself. Therefore, by subrogation he became the mortgagee 
unless some other co-owner redeemed the mortgage from him he remained 
B 
as mortgagee and the suit should have been decreed on that basis. 
The 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 
c 
Custodian of Evacuee Property and in view of entries for one of the years D 
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. 
Firstly, 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: 
"Even 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 went 
E 
F 
on being recorded joint owners and in joint possession of the suit 
land from 1961 towards and in joint possession of the suit land G 
from 1961 onwards till the date of the filing of the suit. 
So, 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 H 
A 
B 
c 
D 
E 
F 
G 
854 
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R. 
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. 
Appellate Cort held that the trial Court has thus rightly con-
cluded after carefully screening of the evidence that the land 
described in the head-note ( d) of the plain

Excerpt shown. Read the full judgment & AI analysis in Lexace.