R.S.A.No.814 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.814 of 2006 Date of Decision : 03.07.2009 Jagjit Singh and Another ...Appellants Versus Savitri Devi and Another ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. Arun Jain, Sr. Advocate, with Mr. Arun Bansal, Advocate, for the appellants. Mr. Vinod Gupta, Advocate, for respondent No.1. Ms. Aseem Kataria, Advocate, for Mr. Ashish Verma, Advocate, for respondent No.2. HEMANT GUPTA, J. (ORAL) Defendant Nos. 1 and 2 are in second appeal aggrieved against the judgment and decree passed by the Court below whereby the suit for possession in respect of property mortgaged to the plaintiffs vide deed dated 17.6.1977 measuring 1100 sq. yards from Dila Ram, was decreed. Dila Ram S/o Hant Ram mortgaged with possession house measuring 1100 sq. yards for Rs.30,000/- in favour of the plaintiff. The mortgagor has right to seek redemption within one month. The mortgagor failed to get house redeemed. The plaintiffs filed a civil suit for declaration that she is owner in possession of the house. The suit was decreed on 6.4.1978. It is the case of the plaintiff that she demolished the partly constructed house and reconstructed the house after getting the R.S.A.No.814 of 2006 2 plan sanctioned from defendant No.3. It is pointed out that during the days of terrorism in Punjab, the husband of the plaintiff has dispute with Patiala Transport Company. It was on 26.11.1986, the transporters alongwith anti-social elements took forcible possession of the house in dispute. Thereafter, the plaintiff filed the present suit for possession, which has been decreed by the Courts below. Defendant Nos.1 and 2 alleged that Pushpa Devi, Shakuntala Devi, Kailash Devi and Lajwanti were the owners of the suit property and the same was pledged with Amarjit Singh, partner of M/s Patiala Transport Company through their attorney Mahavir Parshad Tayal husband of the plaintiff on 1.10.1986. Since, the same was not redeemed within the stipulated period, Amarjit Singh became the owner of the suit property and it was Amarjit Singh, who sold the same to the defendants. It was also pleaded that Dila Ram was not the owner of the suit property and the mortgage deed was false and fabricated. The defendants also alleged that their possession is open and hostile to the knowledge of the plaintiff and all other inhabitants and, thus, they are in possession as owner of the suit property. The learned trial Court on the basis of mortgage deed dated 17.6.1977 (Ex.PW-4/A), judgment and decree dated 6.4.1978 (Exs.PW- 4/B and PW-4/C) returned the finding that the plaintiff is the owner of the suit property. It was also found that the defendants have failed to prove their ownership over the suit property. The learned trial Court has also found that from the site plan Ex.D-5, it is apparent that it is the house of R.S.A.No.814 of 2006 3 the plaintiff, whereas the property purchased by Pushpa Devi etc. Vide Exs.D-6 to D-9 is a separate property. In view of the such finding, the suit was decreed. It is the said decree, which has been affirmed in appeal as well. The learned counsel for the appellant has vehemently argued that Dila Ram was not the owner of the suit property, as the Wakf Board is the owner of the same. Therefore, Dila Ram could not mortgage the same or the plaintiff could become owner of the same by a Civil Court decree. It is contended that the appellants are in possession of the suit property under Pushpa Devi etc., therefore, the decree passed cannot be executed against the appellants. I do not find any merit in the argument raised by the learned counsel for the appellants. Whether the plaintiff is the owner of the suit property or not is required to be examined vis-a-vis the claim of the defendants in the present suit. The plaintiff has asserted title in Dila Ram and relied upon mortgage deed and the Civil Court decree suffered by Dila Ram in favour of the plaintiff. As against the said title of the plaintiff the defendants have set up a purchase in their favour. The sale deeds in favour of Pushpa Devi etc. have been produced on record as . Exs.D-6 to D-9. It has been found by the Courts below that the property purchased by Pushpa Devi etc. is separate and distinct from the property vesting in the plaintiff on the basis of site plan Ex.D-5. In view of the said fact, the argument raised by the learned counsel for the appellants, in respect of title of the plaintiff does not raise any substantial question of law. R.S.A.No.814 of 2006 4 The appellants asserted possession over the suit property on the basis of mortgage and/or sale. However, no document of title has been produced. The defendants also raised plea of adverse possession without admitting the plaintiffs to be owner of the property in dispute. Therefore, the argument that the appellants are in possession over the property owned by Pushpa Devi etc. is again without any merit. The Courts below has recorded a finding that the property purchased by Pushpa Devi etc. is separate than the property vesting with the plaintiff. In view of the above, I do not find that any substantial question of law arises for consideration by this Court. Learned counsel for the appellants has referred to a plaint filed by Punjab Wakf Board challenging the sale deed executed by Dila Ram and the decree suffered by Dila Ram. Even, if the said suit is pending, that will not defeat the right of the plaintiff vis-a-vis the present appellants, who are trespassers and have no title or interest in the suit property. Thus, I do not find any merit in the present appeal. Dismissed. 03.07.2009 (HEMANT GUPTA) Vimal JUDGE