IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3941 of 2004(O&M) Date of Decision : September 02, 2009 Anil Kumar and another ....Appellants Versus Kamlesh Rani .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Chetan Mittal, Senior Advocate assisted by Mr. Mohinder Singh Nain, Advocate Mr. D.D. Sharma, Advocate T.P.S. MANN, J. The defendants are in second appeal after having remained unsuccessful before both the Courts below in a suit filed by the plaintiff for possession by way of redemption of shop situated in Sadar Bazaar, Barnala. In her suit, the plaintiff-respondent had alleged that the shop in dispute was purchased by her vide registered sale deed dated 23.9.1988 and she was its owner in possession. The plaintiff had mortgaged the property in dispute to defendant No.1 as per registered mortgage deed dated 26.2.1990 for a sum of Rs.15,000/-. The possession was delivered to defendant No.1, who was in possession of the property in dispute as per the mortgage deed. As per the mortgage R.S.A. No.3941 of 2004(O&M) -2- deed, the shop was to be redeemed after the expiry of seven years, on payment of mortgage amount. Mortgage deed was got typed from Harkiran Singh, Deed Writer, Barnala. Sohan Lal and Harinder Kumar were the marginal witnesses of the mortgage deed. Mortgage deed was registered one. Defendant No.1 had signed the mortgage deed in token of its correctness on payment of Rs.15,000/-. As per plaintiff, defendant No.1 was in possession of the property in dispute as a mortgagee. After the expiry of seven years, defendant No.1 was requested to deliver the actual possession of the mortgage property, on receipt of mortgage amount. Registered notice dated 11.6.1997 was issued to defendant No.1, but he refused to redeem the property in dispute. In their joint written statement, the defendants contested the suit inter alia on the allegation that the plaintiff had no locus standi and cause of action to file the suit for possession. Suit was bad for mis- joinder of parties. Civil Court had no jurisdiction to entertain and try the suit. On merits, the plea taken by the defendants was that answering defendants had no knowledge whether the property in dispute was purchased by the plaintiff. In fact, on 26.2.1990 the property in dispute was let out to defendant No.1 @ Rs.36,000/- per annum. House tax was to be deposited by defendant No.1. Defendant No.1 had paid the rent to the plaintiff upto 31.3.1997. After 31.3.1997, the plaintiff refused to receive the rent, from defendant No.1. The plaintiff by fraud and mis- representation got the mortgage deed executed from defendant No.1, R.S.A. No.3941 of 2004(O&M) -3- instead of getting the rent note executed. Mortgage deed, alleged to had been executed was a forged and fabricated document. Execution of mortgage deed was a sham transaction. Property in dispute was situated in a commercial and costly area and was valuable. There was no question of mortgage of property in dispute for a sum of Rs.15,000/-. Mortgage deed was not in possession of defendant No.1. In fact, to circumvent the provisions of the Rent Restriction Act, the alleged mortgage deed was forged and fabricated. The mortgage deed was ineffective qua the rights of defendant No.1. On receipt of rent, receipt was not issued by the plaintiff. Property in dispute was purchased for Rs.50,000/-. Defendant No.1 was carrying on business in the shop in dispute under the name and style of Jaggi Sweet House, Sadar Bazaar, Barnala. Defendant No.1 was the sole proprietor of Jaggi Sweet House. Defendant No.1 was in possession of the shop in dispute as a tenant w.e.f. 26.2.1990 for a rent of Rs.36,000/- per annum and denied all other allegations. Learned trial Court had framed the following issues :- 1. Whether the plaintiff is entitled to possession, as prayed for? OPP. 2. Whether the plaintiff has no locus standi to file the present suit ? OPD. 3. Whether defendant No.2 is not juristic person ? OPD. R.S.A. No.3941 of 2004(O&M) -4- 4. Whether the suit is bad for mis-joinder and non-joinder of necessary parties ? OPD. 5. Whether this Court has no jurisdiction to try the present suit ? OPD. 6. Whether the suit of the plaintiff is not properly drafted under the law ? OPD. 7. Relief. After hearing learned counsel for the parties and going through the evidence, the trial Court held that the plaintiff was owner of the suit property which she had mortgaged to defendant No.1 for a consideration of Rs.15,000/- and she was entitled to get it redeemed after paying the mortgage amount to defendant No.1. Issue No.1 was, accordingly, decided in favour of the plaintiff. Issues No.2 to 6 were decided against the defendants and in favour of the plaintiff as during the course of arguments, learned counsel for the defendants neither pressed nor argued on those issues. Resultantly, the suit was decreed with costs. The judgment and decree passed by the trial Court was upheld by lower appellate Court by dismissing the first appeal of the defendants. Alongwith the present appeal, the defendants also filed C.M. No. 9727-C of 2004 under Order XLI rule 27 read with Section 151 CPC for bringing on record House Tax receipts Annexures A-1 and A-2 and copies of Income Tax returns Annexure A-3 by way of R.S.A. No.3941 of 2004(O&M) -5- additional evidence. The plaintiff had relied upon mortgage deed Ex.P1 to show that the suit property had been mortgaged by her with defendant No.1 on 26.2.1990 for a period of seven years. On the other hand, defendant No.1 had asserted that the suit property was let out to him by the plaintiff. He tried to wriggle out of mortgage deed Ex.P1 by pleading that instead of rent note, the plaintiff got mortgage deed executed. He, thus, admitted that a mortgage deed was executed. His plea that the mortgage deed was executed by fraud and misrepresentation falls flat on the ground as he neither filed any complaint to the authorities nor raised any hue or cry before the Sub Registrar when the mortgage deed was being registered. According to defendant No.1, he had been paying rent regularly upto 31.3.1997 but he did not produce any such rent receipt. The execution of mortgage deed Ex.P1 stands duly proved from the testimonies of PW2 Harkaran Singh, Deed Writer, PW4 Sohan Lal, one of the marginal witnesses and PW1 Makhan Lal, Registration Clerk from the office of Sub Registrar, Barnala. Defendant No.1 did not choose to examine Harinder Kumar, Advocate, who was the second marginal witness of the mortgage deed. As per copy of assessment register Ex.D1, the suit property was on rent in the year 1998-99 at the rate of Rs.25,000/- per annum. Nowhere it was mentioned that the suit property was on rent from 26.2.1990 onwards. Moreover, according to defendant No.1 the rent R.S.A. No.3941 of 2004(O&M) -6- was Rs.36,000/- per annum. Therefore, Ex.D1 was rightly ruled out of consideration by the Courts below. According to defendant No.1, the suit property was quite valuable, its worth being around Rs.24/25 lakhs and, therefore, it could not have been mortgaged for Rs.15,000/- only. Entries in the assessment register did not indicate the price of the property as claimed by defendant No.1. Moreover, it was for the plaintiff to see as to whether she wanted to mortgage the suit property for Rs.15,000/- or Rs.25,00,000/-. By way of receipts Annexures P-1 and P-2 and Income Tax returns Annexure A-3, the defendants want to show that the plaintiff was quite rich and possessed a number of properties and, therefore, there was no occasion for her to borrow an amount of Rs.15,000/- by mortgaging the suit property. The aforementioned documents were in existence when the first appeal filed by the defendants was pending before the lower appellate Court. Despite the same, they took no steps to bring them on record by way of additional evidence. Even if these documents are considered so as to hold that the plaintiff was a rich woman and had no occasion to raise a loan of Rs.15,000/-, that by itself is not sufficient. Even rich persons do borrow money for meeting their requirements and if need be by mortgaging their properties. Accordingly, there is no merit in C.M. No. 9727-C of 2004, which is, therefore, dismissed. R.S.A. No.3941 of 2004(O&M) -7- Up shot of the above discussion leads this Court to hold that the concurrent findings of facts arrived at by the Courts below in decreeing the suit of the plaintiff are based upon proper and correct appreciation of the evidence. These findings are not liable to be reversed and, that too, in a second appeal, which is maintainable only on some substantial question of law and not otherwise. None of the substantial questions of law, as framed by learned counsel for the defendants-appellants, arises for determination. Resultantly, the appeal is dismissed with no order as to costs. (T.P.S.MANN) September 02, 2009 JUDGE satish/ajay-1