RSA No.475 of 2011 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.475 of 2011 (O & M) Date of Decision: 28.01.2011 Iqbal Singh ……Appellant Versus Ram Dass …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. D. K. Gupta, Advocate for the appellant. L.N. MITTAL, J (ORAL) CM No.1278-C of 2011 Allowed as prayed for. CM No.1279-C of 2011 This is application for placing on record documents Annexures P-1 to P-3 in regular second appeal. Learned counsel for the applicant- appellant states that document Annexure P-1 has been exhibited in evidence in the trial Court and document Annexure P-3 is copy of statement of defendant as witness, but the counsel is not aware if document Annexure P-2 has been exhibited in evidence in the Trial Court or not. In view of the aforesaid, documents Annexures P-1 and P-3 are taken on record, subject to all just exceptions whereas document Annexure P-2 cannot be taken on record under Section 151 of the Code of Civil Procedure and prayer for the same is declined. The application stands disposed of accordingly. RSA No.475 of 2011 (O & M) - 2 - Main Appeal. Plaintiff-Iqbal Singh, who was successful in the trial Court, but has been unsuccessful in the lower appellate Court, has filed the instant second appeal. Appellant-plaintiff alleged that he is in possession of the disputed shop as tenant under defendant-respondent-Ram Dass on monthly rent of Rs.350/-. Initially the rate of rent was Rs.300/- per month which was enhanced to Rs.350/- per month in the year 1995. Plaintiff has been regularly paying the said rent to the defendant. Agreement dated 01.05.1992 (Annexure P-2) and agreement dated 26.07.1995 (Annexure P- 1) were executed. However, defendant threatened to take forcible possession of the disputed shop, necessitating the filing of the instant suit for permanent injunction restraining the defendant from interfering in peaceful possession of the plaintiff over the disputed shop and from forcibly dispossessing him therefrom without due course of law. Defendant broadly controverted the plaint allegations and inter alia pleaded that he borrowed Rs.6000/- from the plaintiff and as security, possession of the disputed shop was delivered to the plaintiff. Agreement dated 26.07.1995 (Annexure P-1) was executed between the parties. The defendant asked the plaintiff to receive back loan of Rs.6000/- and to cease to occupy the disputed shop, but the plaintiff refused and rather filed the instant suit. Defendant made counter-claim for mandatory injunction directing the plaintiff to cease user of the disputed shop and to pay Rs.750/- per month as mesne profits for use and occupation of the shop. The plaintiff filed replication wherein he reiterated the plaint allegations and controverted the defendant’s version. The plaintiff while admitting execution of agreement dated 26.07.1995 pleaded that he is in possession of the shop as tenant and not as licensee. RSA No.475 of 2011 (O & M) - 3 - Learned Civil Judge (Junior Division), Pathankot vide judgment and decree dated 18.10.2000 decreed the plaintiff's suit and dismissed the counter claim of the defendant. However, first appeal preferred by defendant has been allowed by learned Additional District Judge (Ad hoc), Fast Track Court, Gurdaspur vide judgment and decree dated 17.09.2010 and thereby plaintiff’s suit has been dismissed whereas defendant’s counter claim for mandatory injunction has been decreed directing the plaintiff to handover vacant possession of the suit property to the defendant on receipt of Rs.6000/-. Feeling aggrieved, plaintiff has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Learned counsel for the appellant vehemently and emphatically contended that agreement dated 26.07.1995 Annexure P-1 has been admitted by both the parties and consequently, the plaintiff is in possession of the disputed shop as mortgagee and, therefore, defendant should have filed suit/counter claim for possession of the disputed shop by redemption of mortgage and defendant could not maintain counter claim for mandatory injunction. I have carefully considered the aforesaid contention, but find no merit therein. Firstly, the contention is completely beyond pleadings. It is not the case of either party that defendant had mortgaged the suit property with the plaintiff. The plaintiff claimed himself to be tenant over the suit property whereas the defendant alleged that the plaintiff is licensee in the suit property in lieu of loan of Rs.6000/- taken by defendant from plaintiff. Thus neither party pleaded any mortgage. The contention based on mortgage is, therefore, completely beyond pleadings. Secondly no valid and legal mortgage has either been proved. It is correct that agreement dated 26.07.1995 Annexure P-1 has been pleaded by both the parties and RSA No.475 of 2011 (O & M) - 4 - is, therefore, admitted document. However, perusal of this document reveals that it purports to be mortgage deed of the disputed shop for Rs.6000/-. However, mortgage could be created either orally or by way of registered mortgage deed. Document Annexure P-1, which has been styled as agreement, but is in fact mortgage deed, is unregistered one. Consequently, this document could not create legal or valid mortgage. It is thus manifest that there was no legal or valid mortgage. Plaintiff-appellant has failed to prove that he is tenant in the disputed shop. It is thus manifest that plaintiff is licensee or in permissive possession of the disputed shop under the defendant. Consequently, defendant’s counter claim for mandatory injunction has been rightly decreed. It may be added that document Annexure P-1 being unregistered did not create legal and valid mortgage, but it can be used for collateral purpose to determine nature of possession of the plaintiff- appellant. This document would, therefore, reveal that plaintiff-appellant is in permissive possession of the disputed shop as possession was handed over to him by the defendant under the aforesaid agreement Annexure P-2. However, plaintiff’s possession would not be as mortgagee as no valid or legal mortgage was created. Consequently, the plaintiff’s possession was as licensee being permissive possession under the defendant. Consequently, counter-claim for mandatory injunction is maintainable. The matter may also be examined from another angle. Even if for the sake of argument only, the aforesaid technical contention raised by counsel for the appellant is taken into consideration, the same does not merit acceptance. Counter claim of the defendant has been decreed by the lower appellate Court directing he plaintiff to handover possession of the disputed shop on receipt of Rs.6000/-. Thus even treating the transaction to be of mortgage for the sake of argument only, virtually decree of the redemption of mortgage had been passed and, therefore, RSA No.475 of 2011 (O & M) - 5 - there has been no miscarriage of justice nor the plaintiff has suffered any prejudice loss or injury. However, I may hasten to add that there was no legal or valid mortgage and, therefore, counter claim for mandatory injunction has been rightly decreed. For the reasons aforesaid, I find no merit in the instant 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. (L. N. MITTAL) JUDGE 28.01.2011 A.kaundal