IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.2429 of 1985 Date of Decision:- 21.01.2011 Siri Narain (dead) through LRs and another ...Appellants Versus Ghansham Dass and another ..Respondents Civil Revision No.4798 of 2005 Date of Decision:- 21.01.2011 Sant Lal ...Petitioner Versus Ghanshyam ..Respondent CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. Prabodh Mittal, Advocate for the appellants in RSA No.2429 of 1985. Ms. Pratibha Yadav, Advocate for the petitioner in C.R.No.4798 of 2005. Mr. L.N.Verma, Advocate and Mr. Ashok Verma, Advocate for respondent No.2. RAKESH KUMAR JAIN, J. (Oral) This order shall dispose of R.S.A. No.2429 of 1985 titled as Siri Narain (dead) through LRs and another Vs. Ghansham Dass and another and C.R. No.4798 of 2005 titled as Sant Lal Vs. Ghanshyam, which was ordered to be heard along with R.S.A.No.2429 vide order dated 30.07.2010. Brief facts of the case are that plaintiffs/appellants filed a suit for declaration to the effect that they are the owners in possession R.S.A. No.2429 of 1985 and C.R.No.4798 of 2005 -2- of a dilapidated building (Khandar) bounded as East Rasta 25-0”, West house of Moti Lal Patwa 30-0”, North house of Banwari Lal and Bhikha Ram Bohra 42-0”, South Gali 41-0”, total area measuring 108 square yards, situated in Mohalla Balan in Mahendergarh and has prayed that mortgage deed No.1315 dated 02.01.1981 is illegal, null and void and further prayed for permanent injunction to restrain the defendants from forcibly disturbing the possession of the plaintiffs. The sum and substance of the claim of the plaintiffs in the suit is that they are coming in possession by virtue of a mortgage deed in favour of their predecessors-in-interest purported to have been executed on 02.01.1874 (Ex.P-3) with possession, by one Sarupi Devi and Kahni Devi but the defendant No.2 has forged a mortgage deed No.1315 dated 02.01.1981 in favour of defendant No.1 despite the fact that he is neither the owner nor in possession of the same and is bent upon to disturb their possession by challenging their title over the said property thus, decree for declaration and injunction is sought for declaring them to be the owners and document of mortgage in favour of defendant No.1 to be null and void with constitutional relief of permanent injunction. The learned trial Court decreed the suit of the plaintiffs, which has been reversed by the First Appellate Court. Consequently, the present appeal has been filed before this Court, which was admitted on 30.08.1985. During the pendency of this appeal, defendant No.2 filed a suit against defendant No.1 for redemption of mortgage which was allegedly executed on 02.01.1981. In that suit, an application was filed by Ghansham Dass under Section 10 of the Code of Civil R.S.A. No.2429 of 1985 and C.R.No.4798 of 2005 -3- Procedure, 1908 (in short “C.P.C.”) for staying the proceedings in view of the pendency of the present appeal i.e. R.S.A. No.2429 of 1985. The said application was allowed and the proceedings were stayed till the decision of R.S.A. Sant Lal challenged the said order of learned trial Court passed in his suit by way of Civil Revision No.4798 of 2005, which was ordered to be heard along with the present R.S.A. and as such, the said revision is also being disposed of with the present appeal. Mr. Prabodh Mittal, Advocate for the appellant has vehemently argued that the learned First Appellate Court has committed a serious error in appreciation of evidence by reversing the well considered judgment and decree of the learned trial Court by discarding the document Ex.P-3 (mortgage deed) only on the ground that the boundaries mentioned in the mortgage deed did not tally with the boundaries mentioned in the plaint. He also submits that document Ex.P-1 has also been illegally discarded whereas the defendants have failed to prove their title over the property in dispute as it is admitted by Sant Lal in his statement that they had partitioned their property but the property in dispute was not included. It is submitted that if the property was really owned by Sant Lal, then he would have included it in the common hotch potch otherwise it would have been a case of partial partition. Thus, he has tried to raise question of law that this Court should interfere in the judgment and decree of the First Appellate Court on the question of mis-reading of the documentary evidence on record. On the contrary, learned counsel for the respondent has referred to a decision of the Supreme Court in Santosh Hazari Versus R.S.A. No.2429 of 1985 and C.R.No.4798 of 2005 -4- Purushottam Tiwai (Dead) by Lrs., 2001(3) R.C.R. (Civil) 243 and Narayanan Rajendran & Another Versus Lekshmy Sarojini & Others, 2009(2) RCR (Civil) 286 to contend that even if the First Appellate Court has recorded an erroneous finding of fact and two views are possible, the High Court should not interfere in the second appeal till a substantial question of law is found to be involved. Besides this argument, learned counsel for the respondents has submitted that even if the pleadings and the evidence led by the plaintiffs is considered to be a gospel truth and the defendants evidence is not considered at all, even then in view of the Full Bench decision of this Court, no decree of ownership could have been sought on the basis of the mortgage deed only without seeking fore closure of the right of redemption. He also submits that it is not the case of the plaintiff that there was any time fixed in the mortgage deed for the purpose of redemption and in that circumstances, the principle of once a mortgage always a mortgage would apply. He refers to the Full Bench judgment in the case of Ram Kishan and others Versus Sheo Ram and others, 2008(1) R.C.R. (Civil) 334 to contend that if for the purpose of redemption of a mortgage, no period is fixed then the mortgagee in possession does not become the owner of the property in dispute merely by lapse of time. Moreover, it is not the suit for fore closure filed by the plaintiff after impleading the mortgagors or their successors-in-interest as defendant. Therefore, only on the basis of a possession as mortgagee, cannot claim ownership. I find force in the arguments raised by the learned counsel for the respondent. In so far as the case of the plaintiff is concerned, R.S.A. No.2429 of 1985 and C.R.No.4798 of 2005 -5- admittedly, he is seeking decree of declaration on the basis of pre- existing right of ownership and possession and claiming that any transaction by defendants inter se of a mortgage does not affect his right and is null and void. The question then would arise as to whether the plaintiffs could be granted declaration, as has been done in this case, when the plaintiffs are only mortgagees of the suit property on the basis of a mortgage deed in which no period of redemption is provided. To my mind, the Full Bench judgment of this Court completely answers the question in favour of the respondents and in view thereof, I hold that suit filed by the plaintiffs for declaration that they have become owners only on the basis of mortgage deed, being mortgagee in possession is not maintainable specially when it is a usufructuary mortgage in which there was no time fixed for redemption. Hence, the appeal is dismissed with costs. In so far the civil revision is concerned, it was adjourned to await the decision of the High Court in R.S.A. Since the R.S.A. has been dismissed, the parties to the lis in the civil revision may approach the Civil Court for its revival or continuation. Civil Revision is also disposed of accordingly. Photocopy of this order be placed on other connected case. January 21, 2011 (RAKESH KUMAR JAIN) Gagan JUDGE