IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 120 of 1984 Date of Decision : March 26, 2008 Virsa Singh and another ....Appellants Versus Balwant Singh and others .....Respondents CORAM : HON’BLE MR. JUSTICE T.P.S. MANN Present : Mr. G.S. Jaswal, Advocate for the appellants. Mr. D.R. Mahajan, Advocate for respondents No. 1 to 8. T.P.S. MANN, J. Suit for possession of the land by redemption on payment of the mortgage money filed by respondents No. 1 to 8 turned out to be successful before learned Sub Judge 1st Class, Dasuya on 23.1.1982, who passed a preliminary decree in their favour. They were directed to deposit the mortgage money in the Court within a period of three months for getting the final decree passed in their favour for the possession of the suit land. Aggrieved of the same, the appellants filed an appeal, which was dismissed by learned Additional District Judge, Hoshiarpur Regular Second Appeal No. 120 of 1984 -2- on 26.9.1983. The appellants, thereafter, filed the present second appeal in this Court. The case of the plaintiffs/respondents No. 1 to 8 was that Sansar Singh and Janak Singh sons of Teja Singh, respondents No. 9 and 10, respectively owned land in village Gondal, Tehsil and District Sialkot before partition of the country. About 12 kanals of their land stood mortgaged with possession with Panjab Singh and Smt. Malan. After partition of the country, Sansar Singh and Janak Singh settled in village Safdarpur, Tehsil Dasuya, where they were allotted land. Out of the allotted land, some land was shown to be under mortgage with Panjab Singh and Smt. Malan. During consolidation, land comprised in rect. No. 39 killa No. 12(7-12) and 12(8-0) was allotted to Sansar Singh and Janak Singh in lieu of the land allotted to them in village Gondal. Both, Panjab Singh and Smt. Malan were recorded as mortgagees with possession of the land measuring 6 kanals of Sansar Singh and Janak Singh. Panjab Singh is now represented by his legal heirs, who are respondents No. 1 to 7, while Smt. Malan as respondent No. 8, but as she has since died, is being represented by Balwant Singh son of Panjab Singh. Sansar Singh and Janak Singh did not redeem the suit land within the time prescribed by law. Consequently, their right of redemption came to an end. This happened in or around the year 1961-62 and thus, Panjab Singh and Smt. Malan became owners of the land under Regular Second Appeal No. 120 of 1984 -3- mortgage. In the meantime, respondents No. 11 to 14 started asserting their right of ownership of the aforementioned 6 kanals claiming themselves to be the transferees from Sansar Singh and Janak Singh. None of respondents No. 1 to 8 admitted their claim. Both, Panjab Singh and Smt. Malan did not cultivate the land in question as they already owned sufficient land, which was far away from the suit land. They, accordingly, mortgaged the land in question to Virsa Singh and Fauja Singh on 14.6.1967 for a sum of Rs. 300/-, out of which a sum of Rs. 3/- was deducted as expenses for execution of the document/receipt. Said Virsa Singh and Fauja Singh were in possession of the land in dispute since 14.6.1967 and they were mortgagees under respondents No. 1 to 8. This mortgage was redeemable on payment of Rs. 297/- in the month of Jeth. On the basis of the above, a suit for possession of the land by redemption on payment of the mortgage money was filed. Contesting defendants in the suit were Virsa Singh and Fauja Singh. They opposed the suit by claiming that they had purchased the suit land on 23.7.1965 and paid the mortgage money to Panjab Singh and Smt. Malan and a mutation had also been entered in their names. Since the date of mutation, neither Panjab Singh and Smt. Malan nor any of their successors objected to their possession or title, as the mortgage money had already been paid to them. They were in peaceful possession without interruption of any kind from any corners for the last more than Regular Second Appeal No. 120 of 1984 -4- 12 years. They had, thus, become owners of the suit land by way of adverse possession. Respondents No. 11 to 14 filed their written statement, wherein they pleaded that they were the lawful owners of half share, which they purchased from Sansar Singh. Mutations have been entered in their names and they were shown as co-sharers to the extent of half. Sansar Singh and Janak Singh-respondents were proceeded against ex parte before the learned trial Court. On the pleadings of the parties, learned trial Court framed the following issues :- 1. Whether the suit is not maintainable in the present form ? OPD 2. Whether the suit is within time ? OPP. 3. Whether defendants No. 7 and 8 purchased suit land vide sale deed dated 23.7.1965 paid the mortgage money to Panjab Singh and Malan, if so to what effect ? OPD 7 and 8. 4. Whether defendants No. 7 and 8 have become owner of Regular Second Appeal No. 120 of 1984 -5- the suit land by way of adverse possession ? OPD. 5. Whether defendants No. 1 and 2 and their father mortgaged land mentioned in field No. 1215 and 4502, 3748, 3750, 3753, 3754, 4001, Khewat No. 291/295 and 294/295 in village Gondal in favour of Panjab Singh and Malan, if so on which date and for what amount ? OPP. 6. Whether the suit land had been allotted in lieu of land which was originally mortgaged in favour of Panjab Singh and Malan ? OPP 7. Whether the plaintiffs are entitled to redeem the suit land, if so, on payment of what amount ? OPP 8. Whether the predecessor-in-interest of the plaintiffs received the mortgage amount and the land in question stood redeemed if so to what effect ? OPD 7 and 8. 9. Relief. As stated above, the suit was decreed by the learned trial Court and the first appeal filed by the appellants dismissed by the learned lower appellate Court. Learned counsel for the appellants submitted that the Regular Second Appeal No. 120 of 1984 -6- appellants had purchased the property on 23.7.1965 and also paid the mortgage money to Panjab Singh and Smt. Malan and got the entire suit land redeemed. Therefore, there was no question of Panjab Singh and Smt. Malan mortgaging the suit land to them for a sum of Rs. 300/- on 14.6.1967. The appellants have not been able to establish that they had paid mortgage amount to Panjab Singh and Smt. Malan for redeeming the suit land. No such receipt has been produced by them. Moreover, as per the statement of Virsa Singh-appellant himself, only a sum of Rs. 50/- was kept aside, which was paid to Janak Singh. Though, Janak Singh was the owner of the property along with Sansar Singh but the suit land stood mortgaged with possession with Panjab Singh and Smt. Malan, in such a situation, the entire amount was to be paid to Panjab Singh and Smt. Malan and no amount was to be kept aside for being paid to Janak Singh. Though, Virsa Singh claimed that after the purchase of property, mutation was sanctioned by the Tehsildar, but Dalip Singh-DW5 contradicted that stand by stating that the payment of Rs. 297/- was made on account of transfer of the mortgagee rights. Certified copy of mutation Ex. D1 clearly mentions that the suit land was got redeemed and mortgaged further with Virsa Singh by Panjab Singh for a sum of Rs. 297/-. Though, the receipt for Rs. 297/- was in possession of Virsa Singh and Fauja Singh yet they did not produce it. Regular Second Appeal No. 120 of 1984 -7- They could have atleast made an effort to get it back from the mutation file and produce the same in the Court. Even the entire mutation file could have been summoned. None of these things were done. Once a document was shown to be in existence, the same had to be produced in the Court and no oral evidence with regard to its contents was admissible. The act of Virsa Singh and Fauja Singh in withholding the best evidence from the Court compels the Court to draw an adverse inference against them. It is also submitted that the appellants were owners of the suit land by way of adverse possession. This plea of their negates their own pleadings. They claimed to have purchased the entire suit land and got it redeemed from Panjab Singh and Smt. Malan. They could not thereafter argue that the suit land belonged to someone else and inspite of the same they were in open, hostile, continuous and uninterrupted possession and, that too, to the knowledge of the true owner. Coming to the plea of the appellants that the redemption was beyond the period of limitation, it may be seen that the mortgage in question came into being on 14.6.1967. The suit was filed in the year 1979. It cannot be said that the suit was not within limitation. Another argument made on behalf of the appellants is that Regular Second Appeal No. 120 of 1984 -8- respondents No. 1 to 8 were not entitled to redeem the suit land as the initial mortgage came into operation about 20 years before partition of the country. There is no fixed date as to when the mortgage came into being when the parties resided in Pakistan. Once it is clear that respondents No. 1 to 8 mortgaged the suit land with Virsa Singh and Fauja Singh with possession for a sum of Rs. 297/-, and on its basis mutation No. 1470 was sanctioned, it was open to the aforementioned respondents to get the suit land redeemed within a period of 30 years from 14.6.1967 on the payment of mortgage amount. Moreover, Virsa Singh and Fauja Singh did not get the land redeemed from the predecessor-in-interest of respondents No. 1 to 8 but they came into possession of the suit land being mortgagees under the said respondents. In view of the above, no case is made out for any interference in the concurrent findings of facts arrived at by the learned lower Courts. No question of law, much less substantial question of law, arise for determination in the present second appeal, which being without any merit is, therefore, dismissed. No costs. ( T.P.S. MANN ) March 26, 2008 JUDGE satish Regular Second Appeal No. 120 of 1984 -9- Whether to be referred to the Reporters : YES / NO