Regular Second Appeal No. 109 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 109 of 2009 Date of decision : January 19, 2011 Harbans Kaur and another ....Appellants versus Jagir Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. GS Punia, Advocate for Mr. AS Sullar, Advocate, for the appellants L.N. Mittal, J. (Oral) Defendants no. 1 and 2 having failed in both the courts below are in second appeal. Respondents no. 1 and 2 who are brothers of defendant no. 3 Dalip Singh filed suit against appellants and Dalip Singh alleging that Atma Singh father of plaintiffs and defendant no. 3 being owner in possession of the suit house mortgaged the same with possession with defendants no. 1 to 2 for Rs 7625/- vide registered mortgage deed dated 16.5.1966. Interest at the rate of Rs 7½% per annum payable on the mortgage amount was to be adjusted from rent of the disputed house. After mortgage Atma Singh mortgagor continued in possession of the house as defendants got executed rent note dated 21.5.1966 renting out the suit house to Atma Singh at Rs Regular Second Appeal No. 109 of 2009 -2- 47.50 per month rent. Mortgage was to be redeemed after expiry of five years. Accordingly, after expiry of five years Atma Singh paid full mortgage amount to defendants no. 1 and 2 and got the mortgage redeemed as full mortgage amount with interest was paid. However, defendants no. 1 and 2 did not return the original title deeds to mortgagor Atma Singh since deceased. Accordingly, plaintiffs sought possession of the suit house by redemption of mortgage. Defendants no. 1 and 2 admitted factum of mortgage in their favaour vide mortgage deed dated 16.5.1966. It was alleged that they had taken possession of the suit house at the time of mortgage. It was, however, admitted that suit house was given on rent to mortgagor Atma Singh deceased on 21.5.1966 at the rate of Rs 47.50 per month rent and interest amount was to be adjusted against the rent amount. Rent Controller vide order dated 14.3.1985 ordered ejectment of Atma Singh from the suit house and said order was affirmed by appellate authority. It was pleaded that plaintiffs never paid the mortgage money to defendants no. 1 and 2. Other plaint averments were broadly controverted. Some other pleas were also raised. Defendant no. 3 claimed to be sole legal heir of his father Atma Singh on the basis of Will dated 6.2.1984. Learned Civil Judge (Junior Division), Jalandhar vide judgment and decree dated 22.3.2003 decreed the plaintiffs' suit. First appeal preferred by defendants 1 and 2 has been dismissed by learned Additional District Judge, Jalandhar vide judgment and decree dated 11.3.2008. Feeling aggrieved, defendants no. 1 and 2 have filed the instant second Regular Second Appeal No. 109 of 2009 -3- appeal. I have heard learned counsel for the appellants and perused the case file. It is undisputed that suit house was mortgaged by Atma Singh in favour of defendants no. 1 and 2/appellants. The plaintiffs alleged that Atma Singh had paid the mortgage money which was denied by the appellants. However, plaintiffs deposited the mortgage amount of Rs 7625/- in the trial court as defendants no. 1 and 2 did not object to the said deposit. Consequently, the suit has been rightly decreed. Learned counsel for the appellants vehemently contended that interest amount has not been paid and therefore, only preliminary decree for redemption should have been passed and enquiry should have been held regarding the due mortgage money as required by Order 34 Rule 7 of the Code of Civil Procedure (in short, CPC). I have carefully considered the aforesaid contention which on first blush appears to be forceful. However, the same cannot be accepted. Plaintiffs have led evidence regarding payment of rent. Jagir Singh plaintiff no. 1 appeared in witness box and corroborated his version. Plaintiffs have also examined Jagdish Chander, Execution Clerk who stated about deposit of rent amount by the plaintiffs. This evidence of the plaintiffs stands unrebutted. Defendants no. 1 and 2 examined their attorney Bhagwan Singh DW1 but he did not appear for cross-examination and therefore, his statement cannot be taken into consideration. Thus, evidence of the plaintiffs proved that rent amount deposited against the interest on the mortgage amount stood paid whereas the principal mortgage amount of Rs Regular Second Appeal No. 109 of 2009 -4- 7625/- already stands deposited in the trial court. Consequently, nothing remained due from the plaintiffs on account of mortgage money. Clause (b) of Sub-rule 1 of Rule 7 of Order 34 CPC itself provides that instead of passing preliminary decree, the court may declare the amount as may be found due and directing redemption if the amount so found due, is paid. In the instant case, the principal amount already stands deposited by the plaintiffs and rent amount deposited towards interest already stood paid. Consequently, preliminary decree for redemption was not required to be passed. There is concurrent finding by both the courts below in favour of the plaintiffs. The said finding is fully justified by unrebutted evidence of the plaintiffs and cannot be said to be perverse or illegal warranting interference in second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine being devoid of any merit. ( L.N. Mittal ) January 19, 2011 Judge 'dalbir'