IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 2528 of 1988 Date of decision: 23rd November, 2010 Sucha Singh and others … Appellants Versus Lakhmir Singh and others … Respondents CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. M.L. Sarin, Senior Advocate with Mr. Kabir Sarin, Advocate for the appellants. Mr. Roshan Lal Sharma, Advocate for the respondents. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal was filed by Sucha Singh, Dharam Singh, Dalip Singh, Charan Singh, Bant Singh and Rulda Singh. During the pendency of the appeal, Sucha Singh and Dharam Singh have died and their legal representatives have been brought on record. Plaintiff-respondents instituted a suit for possession by way of redemption of agricultural land, the description and details of which have been given in the head-note of the plaint. It was stated that the property was mortgaged for Rs.1150/-, on re-payment whereof, the same was to be redeemed and possession thereof was to be handed over to the plaintiff-respondents. It was pleaded in the suit that the land in question was owned by Bhagwana and he had mortgaged the same vide a registered mortgage deed dated 13th June, 1962. Bhagwana expired in the month of May 1964 and after a long drawn litigation, on the basis of Will, inheritance of the land was mutated in favour of the plaintiff- respondents. The details of mortgage were given in para No.4 of the Regular Second Appeal No.2528 of 1988 plaint, wherein it was stated that the mortgage was arrived-at on 13th June, 1962 for an amount of Rs.1150/-. The defendant-appellants filed written statement and took a categoric stand that before the mortgage was executed, they were tenants of the land and after redemption, their status as tenants shall again come into existence and they cannot be evicted, except in due course of law. After conclusion of the pleadings, Sub Judge First Class, Kharar formulated following issues: “1. Whether the plaintiff is entitled to possession of the property in suit after payment of Rs.1150/- as redemption money, as per terms of registered mortgage deed? OPP 1A. Whether the defendants are co-sharer, and thus the plaintiffs can not get the whole of the property redeemed? OPP 2. Whether the plaintiffs have no cause of action for filing this suit? OPD” 3. Whether the suit has not been valued properly for the purposes of Court fee and jurisdiction? OPD 4. Relief.” The Rent Controller after perusal of the evidence, came to a conclusion that there is no sufficient evidence to infer that defendant- appellants were tenants and hence, decreed the suit. Aggrieved against the same, an appeal was filed. The appellate authority concurred with the findings given by the trial Court and had dismissed the appeal. Hence, the present regular second appeal. Mr. M.L. Sarin, Senior Advocate assisted by Mr. Kabir Sarin, Advocate, appearing on behalf of the appellants, has stated that the courts below have misread the evidence. It is stated that the statement of Kehar Singh PW-1 and the Khasra Girdawari Ex D-1 to D-3 and Ex.P-5 and P-6 were not taken into consideration by the courts below in right 2 Regular Second Appeal No.2528 of 1988 earnest. Counsel for the appellants has formulated following substantial questions of law for consideration of this Court: “1. Whether the courts below have acted illegally, arbitrarily and without jurisdiction in decreeing the suit of the plaintiff-respondent for possession by way of redemption by grossly misreading the pleadings and evidence on the record? 2. Whether the courts below have misread the statement of Kehar Singh, PW1, who has categorically stated that the suit land was mortgaged to the persons who were in possession i.e. the defendant-appellants herein? 3. Whether the courts below have committed a grave error in misreading the documentary evidence i.e. Ex.D1 to D3 and Ex.P5 and P6 which conclusively prove the defendant-appellants to be tenants in continuous possession of the suit land since 1959? 4. Whether the courts below have proceeded on conjectures and surmises by not noticing that the defendant- appellants have never been dispossessed from the suit land as the earlier mortgage stood redeemed prior to execution of mortgage in their favour? 5. Whether the courts below have ignored the fact that the Khasra Girdawari, Ex.D1 does not show that the earlier mortgage was with possession meaning thereby that the defendant-appellants were tenants upon the suit land even then? 6. Whether the courts below have erred in law and gone beyond their jurisdiction in holding that the defendant-appellants were not tenants upon the suit land even though the same stands proved by the evidence on the record? 7. Whether the judgments and decrees of the courts below are vitiated as they are contrary to the various admissions contained in the pleadings and evidence of the plaintiff-respondents? 8. Whether the judgments and decrees of the courts below are liable to be reversed being perverse?” 3 Regular Second Appeal No.2528 of 1988 In support of the contention raised, Mr. Kabir Sarin has read the evidence of Kehar Singh PW-1, wherein in the cross-examination he stated that before execution of the mortgage deed, the defendant- appellants were in possession of the land, as the land was given to them on Theka (right to cultivate to share the produce). The submission made by Mr.Sarin has been duly considered by the trial Court by observing as under: “The perusal of the copy of the mortgage deed shows that Shri Bhagwana mortgaged land measuring 15 kanals 13 marlas and not 16 kanals 3 marlas. In the mortgage deed, there is no recital that the mortgagees were already in possession as tenants under the mortgagor. Shri Kehar Singh has deposed in his cross-examination that before the mortgage, the land was on lease with the persons to whom it was mortgaged. That Bhagwana mortgaged the land to Sucha Singh, Dharam Singh, Dalip Singh, Charan Singh, Bant Singh and Sunder Singh. This statement of the attorney of the plaintiffs is not helpful to the defendants because the defendants have alleged that they were the tenants but there is no documentary evidence to that effect. Moreover, the copy of the mutation of mortgage Ex.P-5 shows that the change of possession took place. So the defendants were not the tenants over the suit land before the mortgage.” The trial Court gave precedence to recital in the mortgage deed and the documentary evidence to ignore the admission made by Kehar Singh PW-1. I have also perused the testimony of Kehar Singh PW-1. A stray line in the cross-examination is not sufficient to demolish as to what has been established by way of documentary evidence. The appellate Court below further considered the mutation Ex.P5 and held as under: 4 Regular Second Appeal No.2528 of 1988 “6. … … … A reference has been made to copy of Kh. Girdawari for the year 1959 wherein the appellants have been recorded as tenants. Reference to the statement of Kehar Singh one of the respondent is also made wherein he has stated that the land was mortgaged with those persons who were in possession of the suit land earlier to that. On the strength of this evidence it is sought to be argued that the trial Court should have held that the appellants were in possession of the suit land as tenant before the mortgage. I do not subscribe to the contention of the learned counsel for the appellants. Although Kh. Girdawri are to the effect that appellants were recorded as tenant in the year 1959 i.e. before the mortgage deed. But there is a reference of other mortgage in favour of some other person, in the column of ownership. Admittedly that mortgage was redeemed later on. The appellants were in possession of the suit land as tenant. Under those mortgage and not under mortgagors which fact is clear from the recital in the copy of the mutation Ex.P5, wherein it is stated that possession came to the owner mortgagor after redemption of the earlier mortgage. As far as statement of Kehar Singh is concerned he has not stated that appellants were tenants under the mortgagors. He has only stated that the appellants were in possession of the suit land. This case is also admitted by the respondents but they claim that the appellants were in possession under the earlier mortgagees and not under the mortgagors.” Mr. Kabir Sarin has emphasized on the cross-examination of Kehar Singh PW-1 and Khasra Girdawari to state that the appellants were tenants before the mortgage was entered into. Whereas, both the Courts below have relied upon the mortgage deed and the mutation deed Ex.P5 to hold that the appellants were tenants under Bhagwana. The view formulated by both the Courts below is the one which is possible on the basis of appreciation of evidence. The concurrent finding of fact recorded by both the Courts below cannot be 5 Regular Second Appeal No.2528 of 1988 dislodged by this Court, simply on the ground that another view is possible. Therefore, it cannot be said that there is any misreading of evidence. No substantial question of law, as formulated, arises for consideration in the present appeal, hence, the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE November 23, 2010 rps 6