JUDGMENT
N.K. Kapoor, J.
1. This is defendant’s Regular Second Appeal against the judgment and decree of the Additional District Judge affirming in appeal the judgment and decree of the trial Court.
2. Briefly put, plaintiff filed a suit for possession by redemption of land measuring 2 Kanals 14
Marlas, as per details given in the head note of the plaint, on payment of Rs. 3000/- as well as sought declaration that the order of Collector dated 27.4.1982 is illegal and void. In the alternative, the plaintiff claimed that suit for possession by redemption of land measuring 15
Marlas be decreed.
3. Pursuance to the notice issued by the Court contesting defendants filed written statement controverting the various averments made by the plaintiff in her plaint. Various objections with regard to maintainability of the suit in the present form; non-joinder of necessary parties too were raised.
4. On the pleadings of the parties, following issues were framed:-
1. Whether the suit is liable to be stayed under order 10 of C.P.C.? OPD.
2. Whether the suit is bad for non-joinder of necessary party? OPD.
3. Whether the plaintiff is entitled to redeem the suit land. If so, to what amount? OPP.
3-4. Whether the plaintiff is entitled to partial redemption of the land? If so, on payment of what amount and to whom?
OPP.
5. Relief.
5. The trial Court after considering the matter finally came to the conclusion that the suit merit to be decreed and so passed a preliminary decree in favour of the plaintiff thus directing redemption of land measuring 2 Kanals 14 Marlas on payment of Rs. 3000/- (mortgage amount) to defendant No. 1. It was further held that plaintiff will be deemed to be mortgagee qua defendant No. 2 to 4. In addition thereto, there was also a stipulation that on the plaintiff depositing a sum of Rs. 3000/- within a period of 1-1/2 months of the date of decree, the plaintiff may apply for passing of a final decree.
6. The defendants challenged the judgment and decree before the Additional District Judge who did not find any valid ground to vary or reverse the decree impugned and so dismissed the appeal.
7. Challenging the concurrent findings recorded by the Courts below, learned counsel for the appellant after briefly noticing the broad facts leading to the present controversy argued that in the facts and circumstances of the present case, the approach of the Courts below is per se erroneous. Elaborating the counsel argued that it has come on record that, in fact, it is the case of the plaintiff as well that the land measuring 2 Kanals 14
Marlas i.e. 3/8th share of 7 Kanals 4 Marlas was mortgaged with possession with the defendants for a sum of Rs. 3000/-. Out of the land mortgaged, plaintiff admittedly has purchased 15 Marlas of land from one of the co-sharers. So at best, plaintiff claim to recover possession can be only to the extent of the area which he has purchased and no further. Otherwise too, since the mortgage was of a share of joint holding, only a declaration that the land has been redeemed could be passed and the relief of possession which has been granted by the Courts below, in fact, could be claimed and granted only on partitioning of joint land. This way judgment and decree of the Court below deserves to be reversed/modified.
8. Learned counsel for the plaintiff, on the other hand, argued that the plaintiff with a view to redeem the land mortgaged firstly approached the Collector under the Redemption of Mortgage Act and as some disputed questions had been raised, the matter was referred to the civil court for determination and it is in these circumstances that the plaintiff approached the civil Court for redemption of land on payment of mortgage amount. Since the mortgage amount has been paid, mortgagee ceases to have any interest in the property whereas the mortgagor acquires a right to come into possession of land which was with the mortgagees. Construed so, the courts below have rightly decreed the suit of the plaintiff as well as order for possession of the land which was in possession of the defendants-appellant.
9. There is no denying the fact that the area measuring 2 Kanals 14 Marlas out of 7 Kanals 4 Marlas was, in fact, mortgaged by the defendants No. 2 to 4 for a sum of Rs. 3000/- vide mortgage deed dated 26.7.1979. This mortgage was with possession. This mortgage could be redeemed at any time. It so happened that the plaintiff purchased an area measuring 15 Marlas from Mrs. I. Jiwan Dass, one of the defendants-co-owner, for a sum of Rs. 4000/- vide sale deed dated 15.7.1980. Mrs. I. Jiwan Dass was admittedly, one of the mortgagors of the disputed property. This way plaintiff came to acquire the status of a mortgagor to the extent of the share purchased by her. Since there cannot be partial redemption of the mortgage, the Collector rightly declined and so directed the parties to get the matter determined by a competent civil Court. The Court on considering the matter rightly ordered for redemption of the property mortgaged on payment of the mortgaged amount. To this extent, there is no dispute between the parties. Whether on deposit of total decretal amount, one of the mortgagors who has only purchased a part of the mortgaged land from one of the mortgagee can take possession of whole of the land mortgaged is the point for consideration. Admittedly, Smt. Santosh Kumari has purchased only 15 Marlas of land and so at best her claim to possession can be stated to be to the extent of the area purchased by her. In the context of the present case, the total area owned by the parties namely, plaintiff and defendants is 7 Kanals 4 Marlas. Even the mortgage was with respect to 3/8th share of 7 Kanals 4 Marlas. So the other co-sharers, namely defendants are legally entitled to retain their possession despite the redemption of mortgage till the, land is separated by meats and bounds. A co-sharer in possession of the land to the exclusion of other co-sharers has a right to remain in occupation of the same till partition. This being the accepted position at best a decree for declaration could be awarded in favour of the plaintiff. Some what similar matter came up for consideration in case reported as Pritam Singh v. Tara Singh, 1986 P.L.J. 177 and it was held that only a decree for declaration can be granted in favour of a co-sharer and co-sharer/co-sharers who are in possession of the property are entitled to retain their possession till the land is partitioned. The aforesaid decision, applies to the facts of the present case. Accordingly I accept the appeal and modify the judgment and decree of the Courts below thus granting a declaration to the effect that the land stands redeemed as the mortgage amount has been deposited by the plaintiff. The plaintiff, of course, can initiate appropriate measure for possession of the land by filing a petition for partition in the revenue Court. No order as to costs.