RSA No.4098 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 4097 of 2008 (O&M) Date of Decision: August 17, 2009 Radhey Shyam ...........Appellant Versus Smt.Bimla Devi and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Arun Jain, Senior Advocate with Mr.S.K.Sharma, Advocate for the appellant. Mr.Adarsh Jain, Advocate for the respondents ** Sabina, J. Plaintiffs filed a suit for possession by way of redemption. The suit of the plaintiffs was decreed by the Civil Judge (Junior Division) Palwal vide judgment and decree dated 10.2.2005. The appeal filed by defendant No.2-appellant was dismissed by the Additional District Judge, Faridabad vide judgment and decree dated 15.10.2008. Hence, the present appeal. The facts of the case, as noticed by the Additional District Judge in paras 3 to 9 of its judgment, read as under:- “ 3. Briefly stating that the facts related to the present appeal are that a civil suit was filed by `Lok Chand Gupta', predecessor- in-interest of the respondents Nos. 1(i) to 1(iv) against `Chander Parkash', the respondent/defendant No.1 and `Radhey Shyam', the RSA No.4098 of 2009 (O&M) 2 appellant/defendant No.2. By virtue of that suit, `Lok Chand Gupta' had sought possession of the suit property by redemption of mortgage. During the pendency of this suit, `Lok Chand Gupta' died. On the death of `Lok Chand Gupta', the present suit was pursued by his legal heirs, now the respondents Nos. 1(1) to 1(iv). 4. In brief, the facts projected by the plaintiffs in the above mentioned suit were that father of the plaintiffs late `Puran Lal' had mortgaged with possession a shop situated in new anaj mandi Hodal, detailed and described in para no.1 of the plaint, hereinafter being referred as the suit property. The above mentioned mortgage was for a sum of Rs.8000/-. In this context, the mortgage deed dated 3.12.75 was executed between `Puran Lal' and the defendant No.1 `Chander Parkash'. The original mortgagor `Puran Lal' has died. On the death of `Puran Lal', rights of `Puran Lal' in the suit property have been inherited by the plaintiff `Lok Chand Gupta' (now deceased) and being represented by his legal heirs along with his brothers namely `Bhagwat Parshad' and `Bharosi'. 5. The plaintiff further contended that the defendant No. 1 being the mortgagee had inducted the defendant No.2 as tenant in the suit property and that the plaintiff being one of the mortgagee wanted to get the mortgage redeemed. In this context he requested the defendant No.1 to redeem the mortgage but to no avail. Hence, the suit for possession by way of redemption of mortgage, on payment of mortgage money Rs.8000/-. 6. On notice, the defendant No.1 `Chander Parkash' RSA No.4098 of 2009 (O&M) 3 appeared and filed his written statement. In his written statement, the defendant No.1 did not contest the claim of the plaintiff qua the fact that `Puran Lal', the father of the plaintiff had mortgaged the suit property in favour of the defendant No.1 for a sum of Rs.8000/-. The defendant No.1 admitted the claim of the plaintiff and expressed his willingness for redemption of the mortgage. Only formal and evasive denial was made by the defendant No.1 by taking the plea that he was never approached by plaintiff for repayment of mortgage money and redemption of mortgage. 7. The defendant No.2 had filed his separate written statement. In his written statement, the defendant No.2 controverted the pleadings of the plaintiff on the ground that the suit of the plaintiff is not maintainable in the present form. The plaintiff had no locus standi for filing the present suit. The present suit was filed in collusion with the defendant No.1. The suit was bad for non-joinder of parties. The plaintiff was estopped from filing the present suit by his own act and conduct. The alleged mortgage deed was false an fabricated document. The said transaction was sham transaction and not binding upon the defendant No.2. 8. The defendant No.2 in his written statement specifically and categorically pleaded that he was inducted as tenant in the suit property by `Puran Lal', the former owner of the property. The defendant No.2 had also pleaded that he was inducted as tenant in the suit property prior to the alleged mortgage. 9. The defendant No.2 in his written statement specifically RSA No.4098 of 2009 (O&M) 4 and categorically denied the allegations of the plaintiff qua the fact that the suit property was mortgaged for a sum of Rs.8000/- by `Puran Lal' in favour of the defendant No.1 or that this mortgage deed was ever acted upon. The defendant No.2 also denied the contention of the plaintiff qua the fact that he alongwith his brother had inherited the title over the suit property from his father `Puran Lal'. On the pleadings of the parties, the following issues were framed:- “1. Whether the plaintiff mortgaged the suit property with defendant No.1, as alleged?OPP 2. Whether the suit property is liable to be redeemed and on which mortgage amount?OPP 3. Whether the suit is not maintainable in the present form?OPD 3A. Whether the suit of the plaintiff is collusive between the plaintiff and the defendant No.1?OPD 3B. Whether the defendant No.2 has been coming tenant under the shop in dispute since the time of Puran Lal, much prior to alleged mortgage deed ?OPD 4. Whether the plaintiff has no locus standi to file the present suit?OPD 5. Whether the suit is bad for non-joinder and mis-joinder of parties ?OPD 6. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 7. Relief.” RSA No.4098 of 2009 (O&M) 5 After hearing the learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. Plaintiff had field a suit for possession by way of redemption basing his claim on Exhibit P1, registered mortgage deed executed on 3.12.1975 between the plaintiff and defendant No.1. Defendant No.1, while appearing in the witness box, admitted the execution of the mortgage deed. However, appellant-defendant No.2 contested the suit of the plaintiff on the ground that the mortgage deed (Exhibit P1) was a sham transaction and had been set up with a view to adversely effect the rights of the appellant, who was already a tenant under the plaintiff in the premises in dispute. The controversy involved in this appeal is as to whether the appellant was inducted as a tenant in the premises in dispute. The learned lower appellate Court, while holding that the appellant had failed to establish that he had been inducted as a tenant in the suit property prior to the execution of the mortgage deed has observed as under:- “36. The appellant/defendant No.2 has heavily relied upon two documents firstly, the certificate issued by the DW5 as Ex.DW5/1 and secondly, the permission Ex.D1, accorded by the Municipal Committee for extension of the disputed shop. As far as the contents of Ex.DW5/1 are concerned, the perusal of the same shows that the connection was applied by the appellant/defendant No.2 in December, 1974 and it was installed in June, 1975. On the other hand, the testimonies of DW2 as well as DW3 and DW13 proves that the shop in dispute was let out by `Puran Lal' to the appellant/defendant No.2 in March, 1975. Once, the deal for letting out of the disputed shop to the appellant/defendant RSA No.4098 of 2009 (O&M) 6 No.2 was struck in November,1975, there was no occasion for the appellant/defendant No.2 to seek installation of the electricity connection in December, 1974. This contradiction in itself falsifies the stand of the appellant/defendant No.2 . 37. Secondly, the document Ex.DW5/1 has been proved by DW5. In his testimony, the DW5 has deposed that in Ex.DW5/1, it is not mentioned in which premises the electricity connection was installed. To fill-up this gap, the defendant has examined meter reader as DW12. However, the said meter reader too has failed to bring any relevant record. He is working in the said locality for the last six years only. In the absence of the record as well as personal knowledge, the DW12 is not in a position to depose whether the electricity connection, installed in the shop of the plaintiff, was installed prior to the mortgage deed Ex.P1 or after. 38. Thirdly, the testimonies of DW5, DW12 and contents of the certificate Ex.DW5/1 are not admissible in evidence in view of the fact that DW5 and DW12 are official witnesses and they have not brought the relevant record to show that the electricity meter pertaining to the connection No. HCS-617 was installed in 1975. Merely issuing the certificate Ex.DW5/1 which is not usually prepared in the office, without supporting it with the extracts of the relevant, does not mean that this document is a official document and deserves to be believed. 39. Fourthly, the defendant's witnesses DW2, DW4, DW13 and the appellant/defendant No.2 (DW3) have admitted that right RSA No.4098 of 2009 (O&M) 7 from the very beginning, the business of wholesale agent is being carried by the appellant/defendant No.2 in the suit property and that before the start of the said business, licence of the Marketing Committee is essential. However, no such licence has been placed on record to show that the appellant/defendant No.2 applied for licence prior to the mortgage deed Ex.P1. 40. Fifthly,the appellant/defendant No.2 himself has admitted that he applied for sale tax number and the licence of the Marketing Committee in the year 1976-77. This stand of the appellant/defendant No.2 falsifies his plea that he is working as wholesale agent in the disputed property since 1975. 41. Sixthly, for the sake of arguments, even if this argument of the learned counsel for the appellant/defendant No.2 is accepted that before applying for licence to the Sales Tax Authority and Marketing Committee, a requisite quantum of sale of food grains is required and that the appellant/defendant No.2 reached to that level in the year 1976-77 only, even then, it was incumbent upon the appellant/defendant No.2 to prove that he started the business in the year 1975 itself. It has been admitted by various defendant's witnesses that the defendant is maintaining the account books right from the very beginning. These account books are maintained by the appellant/defendant No.2 in usual course of business and by producing these account books, the appellant/defendant No.2 could have proved that he is doing the business right from 1975. But these documents have been withheld by the appellant/defendant No.2 . The existence of the RSA No.4098 of 2009 (O&M) 8 account books has been duly admitted by the DW13, who has deposed that at the time of `Muhrat' of the shop, `Pooja' of the account books was also performed.” Thus, the learned Additional District Judge, after appreciating the entire evidence led by the appellant, came to the conclusion that the appellant had failed to establish that he had been inducted as a tenant in the premises in question prior to the execution of mortgage deed. The reasons given by the learned Additional District Judge are sound reasons and the finding of facts arrived by by the Courts below calls for no interference by this Court in appeal. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 17, 2009 arya