RSA No. 781 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No. 781 of 2011 (O&M) Date of Decision: 23.5.2011. Kimti Lal .......Appellant Vs. Kaushalya Devi and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. J.S.Khiva, Advocate for the appellant. ..... SABINA, J. Plaintiff had filed a suit for possession of the house shown in red colour in the site plan marked with letters LMEFGJ measuring 14½ Marlas bounded as under:- North - House of Harinder Pal East - House of Gurtej Singh South - Street West - Street North East - House of Harnek Singh The case of the plaintiff in brief was that the suit property was situated in the residential area of village Kamal Ke. The property marked with letters ABCDEFGH was owned by defendant No.3. In a family settlement, plaintiff and defendants had mutually partitioned the property and the portion marked RSA No. 781 of 2011 (O&M) -2- with letters EFGHLM had fallen to the share of the plaintiff. Plaintiff had constructed his house thereon. The plaintiff later on shifted to Uttar Pradesh and had mortgaged his house with defendant No.1 vide writing dated 1.2.1994. The possession of the house in dispute was handed over to the defendant No.1. The mortgage amount was ` 32,000/-. ` 30,000/- had been paid to defendant No.1 as earnest money and last date for registration of the mortgage deed was fixed as 31.1.1997. The defendant No.1, however, failed to appear before the Sub Registrar to perform his part of the contract, although the plaintiff had remained present in the office of Sub Registrar. Defendants, in their written statement, admitted that defendant No.1 was owner of the entire property. The relationship between the parties was admitted. The agreement was executed as a security qua the loan advanced to the plaintiff. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether plaintiff is entitled to the possession as owner of the suit property? OPP 2. Whether the plaintiff is entitled to possession of ¼ share or in the alternative? OPP 3. Whether the plaintiff is entitled to permanent injunction as prayed for? OPP 4. Whether the plaintiff has got no locus standi to file the present suit? OPD 5. Whether the suit of the plaintiff is not maintainable? OPD 6. Relief.” RSA No. 781 of 2011 (O&M) -3- Civil Judge (Junior Division) vide judgment and decree dated 11.12.2008 dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, plaintiff preferred an appeal and the same was allowed by the Additional District Judge, vide judgment and decree dated 14.9.2010. Consequently, the suit filed by the plaintiff was allowed. Hence, the present appeal by defendant No.1. After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves dismissal. Admittedly, the plaintiff Mangal Dass, Kimti Lal and Harjinder Pal are sons of Charan Dass-defendant No.3. The property marked as ABCDEFGH was owned by Charan Dass- defendant No.3. Charan Dass-defendant No.3, while appearing in the witness box, deposed that he had partitioned the property, owned by him equally amongst his sons. His each son had got 14 Marlas of land. The plaintiff had constructed his house on the plot which had come to his share. Plaintiff had placed reliance on agreement to mortgage dated 1.2.1994. The appellant in his cross examination admitted that an agreement was reduced into writing dated 1.2.1994 but the same was an agreement to sell. Be that as it may the fact remains that the plaintiff was the owner of the suit property and was entitled to get back the possession of the property. Assuming that an agreement to sell had been executed in favour of the appellant by the plaintiff but the appellant had failed to prove the same on record to establish that he was in possession of the suit property on the basis of the said agreement to sell. The plaintiff, on the other hand, had proved on record the RSA No. 781 of 2011 (O&M) -4- agreement to mortgage dated 1.2.1994. Since, the appellant had failed to get the mortgage deed registered, the appellant was liable to vacate the suit property. No substantial question of law arises in this appeal. Dismissed. (SABINA) JUDGE May 23, 2011 Gurpreet