RSA No.2821 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2821 of 2007(O&M) Date of decision: 19.1.2009 Krishan and another ......Appellants Versus Tek Ram and another ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Anurag Jain, Advocate for the appellants. Mr. R.N. Lohan, Advocate for the respondents. * * * Rakesh Kumar Garg, J. The case of the plaintiff as pleaded in the plaint is that the defendants were having a cordial relationship with the plaintiff. On 1.12.2001, defendant No.1 came to the plaintiff in his village Mirchpur and asked him to lend Rs.1,25,000/- as he was in dire need of the same for his domestic needs. The plaintiff lent him an amount of Rs.1,23,000/- on interest and defendant No.1 undertook to return the same uptill 31.1.2002 along with interest. Defendant No.1 executed a pronote and receipt for the aforesaid amount of Rs.1,23,000/- and agreed to pay interest at the rate of 2% per month and also undertook that the plaintiff would be entitled to recover the amount and interest from the property of defendant No.1 if he failed to pay the same within time and also executed an agreement to this effect. On 31.1.2002, defendant No.1 expressed his inability to pay the amount on that date and assured him to make the payment within the limitation period of pronote and receipt. In the month of November 2003, defendant No.1 again came to the plaintiff and asked to extend the time for the payment. The plaintiff asked him to pay the amount but defendant RSA No.2821 of 2007(O&M) 2 No.1 refused to pay the amount despite repeated demands. On enquiry of the revenue record, the plaintiff came to know that defendant No.1 had executed a release deed 9.2.2001 in favour of defendants No.2 and 3 and a mutation dated 24.4.2001 had also been sanctioned on the basis of the said release deed fraudulently. The plaintiff is entitled to the recovery of the amount in question and the release deed and mutation are not binding on his rights. Defendant No.1 was proceeded against ex parte in the trial Court despite notice. Defendants No.2 and 3 resisted the suit alleging therein that the suit is not maintainable in the present form and also took various other legal objections. On merits, it was alleged that the contesting defendants were having a small piece of land which was source of their livelihood. Defendant No.1 had never borrowed the amount from the plaintiff for construction of the house. About 40 years back, after the death of their grandfather, their father had separated from his brothers and a double storey house fell to this share which was constructed by their grandfather and therefore, there was not question of construction of any house by defendant No.1. Defendant No.1 is not traceable, therefore, question of borrowing of money from the plaintiff does not arise. Defendant No.1 had never executed any pronote or receipt in favour of the plaintiff. Defendant No.1 was not in need of money for any purpose. The father of defendants No.1 and 2 executed the release deed dated 9.2.2001 in favour of defendants No.2 and 3 legally and the mutation of the same was also sanctioned on 24.4.2001 which is binding upon the plaintiff and therefore, the plaintiff was not entitled to any relief. After considering the evidence on record and hearing the learned counsel for the parties, the trial Court held issues No.1 and 2 in favour of the plaintiff-respondent. Issues No.3 and 4 were answered RSA No.2821 of 2007(O&M) 3 against the appellants and issue No.5 to 11 were decided against the defendants having not been pressed and the suit of the plaintiff was decreed with costs and the plaintiff was held entitled to recover a sum of Rs.2,02,100/- with interest at the rate of 6% per annum from the date of institution of the suit till the realization of decretal amount from the property of defendant No.1 as detailed in the head note of the suit further holding that the release deed dated 9.2.2001 and the mutation dated 24.4.2001 was not binding on the rights of the plaintiff. Defendants were also restrained from alienating the disputed property in any manner. Feeling aggrieved from the judgment and decree of the trial Court, defendants No.2 and 3 filed an appeal which was dismissed by the Additional District Judge (Fast Track Court), Hisar vide impugned judgment and decree dated 31.7.2007. Still not satisfied, defendants No.2 and 3 have filed the instant appeal challenging the aforesaid judgment and decrees of the Courts below. Learned counsel for the appellants has vehemently argued that the judgment and decrees passed by the Courts below qua release deed for which issue No.2 was framed is without jurisdiction as the said release deed was executed in the office of Sub Registrar, Jind, and the property for which the release deed was executed is also situated within the district Jind and further the appellants are having their residence in District Jind, therefore the Court at Hansi Distt. Hisar had got no jurisdiction to adjudicate the said claim. It was further argued by him that the property alienated by way of release deed was a co-parcenary ancestral property and the appellants were having share in the property by birth and thus, no charge could be created by one coparcener on the property of other coparcener and in such circumstances, the Court below erred in directing RSA No.2821 of 2007(O&M) 4 the alleged recovery to be effected from sale of the suit property. It was also argued by the learned counsel for the appellants that there was no legal necessity of the family to take a loan from the plaintiff and the plaintiff has failed to establish that the said amount was taken by Baje Singh defendant No.1 for any legal necessity of the family and therefore, on the basis of the aforesaid arguments, the following substantial questions of law arise in this appeal: “1. Whether the judgments and decree passed by the Courts below regarding the release deed is without jurisdiction and hence, is a nullity? 2. Whether the property of one coparcener can be held liable to discharge the liability of the other coparcener? 3. Whether the loan which is not taken for the legal necessity of the coparcenary family can be ordered to be discharged by sale of ancestral coparcenary property?” Thus, it was prayed by the learned counsel that the appellant that the appeal be accepted and the suit filed by the plaintiff-respondents be dismissed. I have heard learned counsel for the appellants. The Courts below on appreciation of evidence have recorded a concurrent finding of fact that the execution of pronote and receipt and agreement in favour of the plaintiff-respondents stands duly proved from the evidence of petition-writer and attesting witnesses. The payment of money in furtherance of these documents was also proved on the file and in fact, the findings of the Courts below on issue No.1 have not been challenged by the learned counsel for the appellants. Admittedly, the appellants received the property held by their father and therefore by any RSA No.2821 of 2007(O&M) 5 stretch of imagination they cannot be absolved from making the payment of borrowed amount taken by their father on execution of documents. Therefore, the appellants are liable to make the payment of the borrowed amount along with interest to the plaintiff. Contention of the learned counsel for the appellants that Civil Court at Hisar had no jurisdiction to give a finding with respect to release deed, is also without any merit. No such argument was raised by the learned counsel for the appellants in the Courts below. In fact, issue Nos.5 to 11 were not pressed by the appellants before the Courts below. The Hon’ble Apex Court in Bachhaj Nahar v. Nilima Mandal and another JT 2000(13) SC 255, has held that no question can be raised with regard to an issue which was not pressed before the Courts below. For the reasons recorded above, I find no merit in this appeal. No substantial question of law arises. Dismissed. January 19, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.2821 of 2007(O&M) 6