RSA No.1776 of 1982 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1776 of 1982 Date of decision: 23.2.2010 Balbir Singh and others ............Appellants Versus Rajinder Parshad and others ..........Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. J. K. Sibal, Sr. Advocate with Mr. Sapan Dhir, Advocate for the appellants. Mr. Ravish Bansal, Advocate for Mr. Ashok Singla, Advocate for the respondents. -.- 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest?Yes ALOK SINGH, J. 1. By way of present appeal, defendant No.3/appellant No.1 is assailing the judgment and decree dated 2.6.1982, passed by Additional District Judge, Sangrur, thereby setting aside the judgment passed by the learned trial Court, by which learned trial Court had decreed the suit for redemption of mortgage on payment of Rs.40,000/- by the plaintiffs to the defendants and directed to draw preliminary decree for possession by redemption of the disputed shop. RSA No.1776 of 1982 -2- 2. The brief facts of the present case are that Sarvshri Tarsem Lal, Gokal Chand, Kishori Lal, Kasturi Lal and Kapoor Lal, defendant Nos.7 to 11, were the owners of the property in dispute. They mortgaged this property with possession in favour of Amar Nath and Dev Gupt, defendant Nos.1 and 2, by means of registered mortgage deed, dated 28.2.1972, for Rs.40,000/-. It was stipulated in the mortgage deed that mortgage was for five years and thereafter mortgagors were at liberty to get the property redeemed. Plaintiffs had purchased properties mortgagor vide registered sale deed dated 14.6.1973 from the s i.e. defendant Nos.7 to 11. The plaintiffs filed suit for possession by way of redemption of the property in dispute on payment of the mortgage money against defendant Nos.1 and 2 and impleading other defendants also as necessary parties. 3. Defendant Nos.1 and 2 i.e. mortgagees admitted that the property in dispute was mortgaged in favour of defendant Nos.1 and 2 for Rs.40,000/- and they had no objection to its redemption by the plaintiffs. Defendant No.3 i.e. Rajinder Parshad son of Dev Gupt (defendant No.2) preferred his separate written statement and pleaded that he was inducted as a tenant in a shop (part of the mortgage property) by the defendant Nos.7 to 11 i.e. original mortgagors, even prior to the mortgage and execution/registration of the mortgage deed dated 28.2.1972. It was also pleaded by the defendant No.3 that he had been paying rent to defendant Nos.7 to 11. 4. Original mortgagors i.e. defendant Nos.7 to 11 filed RSA No.1776 of 1982 -3- their written statement admitting the factum of mortgage, however, they supported the stand taken by Rajinder Parshad, defendant No.3. In view of the pleadings of the parties, the learned trial Court settled with the following issues:- (1)“Whether defendant No.3 was a tenant under the original mortgagor defendant Nos.7 to 11 in the shop described in para No.1 of the written statement of defendant No.3 at the time of mortgage dated 28.2.1972? OPD No.3. (2)Whether defendant No.6 was a tenant of two Chobaras of the first floor in the building in dispute under defendants No.7 to 11 before the mortgage deed dated 28.2.1972 executed by defendants No.7 to 11 in favour of defendants No.1 and 2, if so, its effect?OPD No.6. (3)Whether the plaintiffs are the owners of the property?OPP. (4)Whether the suit is bad for mis-joinder of the parties? (5)If issue No.1 and 2 are proved, whether this Court has jurisdiction to entertain this suit qua defendants No.3 RSA No.1776 of 1982 -4- to 6? (6)Relief.” 5. Learned trial Court recorded findings of fact after discussing elaborate evidence that claim of Rajinder Parshad that he was inducted as tenant by original mortgagors i.e. defendant Nos.7 to 11, even prior to factum of mortgage, is not proved. Learned trial Court observed that none of the original mortgagor i.e. defendant Nos.7 to 11, appeared in the witness box, to support the factum/proved the factum of tenancy by them, in favour of Rajinder Parshad. Learned trial Court also observed that defendant No.3 is a son of defendant No.2 i.e. one of the mortgagee, and had he been tenant in the mortgage property, the mortgage deed would have contained that fact in it. 6. However, on appeal, first Appellate Court reversed all findings of fact recorded by the learned trial Court and substituted its own finding of fact to the effect that defendant No.3 was inducted as tenant prior to the mortgage by the defendant Nos.7 to 11 i.e. original mortgagors. Hence, suit for possession cannot be decreed against defendant No.3. Feeling aggrieved from the judgment and decree passed by the first Appellate Court, reversing the judgment of the learned trial Court, plaintiffs have filed the present second appeal. 7. In the present second appeal, following substantial questions of law were formulated:- “a. Whether the first Appellate Court RSA No.1776 of 1982 -5- has committed manifest error of law by relying on the evidence to contradict the contents of the registered mortgage deed in violation of Sections 91 and 92 of the Indian Evidence Act? b. Whether first Appellate Court could have accepted plea of the respondent Nos.7 to 11 as taken in their written statement of the fact that Rajinder Parshad was tenant prior to 28.2.1972 as they did not appear in the witness box?” 8. I have heard learned Counsel for the parties and perused the record. 9. Substantial question No.1 is as under:- a. Whether the first Appellate Court has committed manifest error of law by relying on the evidence to contradict the contents of the registered mortgage deed in violation of Sections 91 and 92 of the Indian Evidence Act? 10. Mr. J. K. Sibal, Sr. Advocate assisted by Mr. Sapan Dhir, Advocate appearing for the plaintiffs/appellants has vehemently argued that mortgage deed is a registered document between the mortgagors and mortgagees and Rajinder Parshad, defendant No.3, is the son of defendant No.2, one of the mortgagee. He further stated that registered mortgage deed contains the actual delivery of possession by RSA No.1776 of 1982 -6- the mortgagor in favour of the mortgagee at the time of mortgage and does not contain the factum of tenancy in favour of defendant No.3. According to Mr. J. K. Sibal, Sr. Advocate, had he been in possession as a tenant in a mortgage property, mortgage deed would have not contained that, possession is being handed over to the mortgagees by the mortgagors. Mr. J. K. Sibal, Sr. Advocate further argued that since defendant No.3 is the son of defendant No.2, hence, he cannot be permitted to lead any evidence contrary to the terms and conditions of the mortgage deed, in view of Sections 91 and 92 of the Indian Evidence Act. 11. Mr. Ravish Bansal, Advocate appearing for the respondents vehemently argued that evidence can be led by him to explain the contents of the mortgage deed to show that delivery of possession written in the document does not mean delivery of actual physical possession rather it is meant to symbolic possession. He has placed reliance on the judgment passed by the learned Single Judge of this Court in the matter of Puran and others v. Chandan reported in 1975 P.L.J. 151. He has further placed reliance on the judgment of the Hon'ble Apex Court in the matter Yudhister v. Ashok Kumar reported in Vol.XCI – (1987-1) PLR 11. I have carefully read the judgments cited by learned Counsel for the respondents. 12. In the matter of Puran (supra), this Court has observed as under:- “A formal recital about the delivery RSA No.1776 of 1982 -7- of proprietary possession is generally made in a sale deed and does not necessarily imply that the vendee could not have been in possession of the land sold as a tenant from any earlier date.” 13. In the matter of Yudhister (supra), the Hon'ble Apex Court has observed as under:- “Our attention was drawn to the document on behalf of the appellant in support of contention that the document which was registered document recited that vacant possession has been given. The document stated 'Kabza Khali makan ka dia hai'. It was asserted that it meant that vacant possession in fact had been given. The oral evidence adduced indicated otherwise. Indeed the expression aforesaid does not mean that actual physical vacant possession had been handed over to the purchaser. In document of this type it can equally mean that the legal right of possession not the actual possession had been handed over to the purchaser. Therefore, evidence was permissible to explain what it meant.” 14. Sections 91 and 92 of the Indian Evidence Act are being reproduced herein as under:- “91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents – When the terms of a contract, or of a grant, or of any other RSA No.1776 of 1982 -8- disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained . Exception 1. When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved. Exception 2. Wills [admitted to probate in [India]] may be proved by the probate. Explanation 1. This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one. Explanation 2. Where there are more originals than one, one original only need be proved. Explanation 3. The statement, in any document whatever, of a fact other than the facts referred to in this section, shall not preclude the admission of oral evidence as to the same fact. RSA No.1776 of 1982 -9- 92. Exclusion of evidence of oral agreement –When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1) – Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, [want or failure] of consideration, or mistake in fact or law: Proviso (2) – The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document: Proviso (3) – The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved: RSA No.1776 of 1982 -10- Proviso (4) – The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents: Proviso (5) – Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract: Proviso (6) – Any fact may be proved which shows in what manner the language of a document is related to existing facts.” 15. From the perusal of the above cited judgments and from the reading of both the sections, there is no doubt that oral evidence sometime is permissible to explain the contents, terms and conditions of the deed when language is ambiguous and needs explanation. However, in my humble opinion, if language is not ambiguous, vague and need no explanation and both the parties to the documents do not challenge it, then no evidence is permissible to prove otherwise. In the present case, father of the defendant No.3, the alleged tenant, was one of the party to RSA No.1776 of 1982 -11- the mortgage deed. Moreover, defendant Nos.7 to 11 i.e. mortgagors, who said to have been inducted the defendant No.3 as tenant, prior to mortgage, were also parties to the mortgage deed. Neither mortgagor i.e. defendants No.7 to 11, from whom defendant No.3 alleges to have taken property on lease, nor defendant No.2, who is father of the defendant No.3, had come in the witness box, to explain that in fact defendant No.3 was tenant in actual physical possession prior to the execution of the mortgage deed and recital in the mortgage deed about delivery of possession does not speak about the delivery of actual physical possession rather it speaks about the symbolic possession. In my humble opinion, any evidence led by defendant No.3, who is the son of defendant no.2, who is one of the party of the mortgage deed, is not admissible in view of Sections 91 and 92 of the Indian Evidence Act to disprove the contents of the document. Substantial question No.1 is answered accordingly. 16. Substantial question No.2 is as under:- b. Whether first Appellate Court could have accepted plea of the respondent Nos.7 to 11 as taken in their written statement of the fact that Rajinder Parshad was tenant prior to 28.2.1972 as they did not appear in the witness box?” 17. As observed earlier, while answering the first substantial question of law, that neither defendant Nos.7 to 11, original mortgagors, nor defendant Nos.1 and 2, original mortgagees, came into the witness box to state that defendant RSA No.1776 of 1982 -12- No.3 son of defendant No.2 was inducted as tenant and was in actual physical possession over the property in dispute, even prior to the date of mortgage, hence, merely because defendant Nos.7 to 11 who after selling the property to the plaintiffs had no more interest in the property, support the claim of defendant No.3 in the written statement does not amount to legal proof of the factum of tenancy without coming into the witness box. 18. Learned Counsel for the appellants argued that even if two views were possible, the view taken by learned trial Court should have not been disturbed by the first Appellate Court. Learned Counsel for the respondents, however, argued that once one view is taken by the learned Appellate Court, it should not be disturbed by the High Court in the second appeal. Mr. Ravish Bansal, Advocate appearing for the respondents argued that finding of fact cannot be disturbed by the second Appellate Court, even if, finding may be wrong until and unless it is a case of perverse finding. According to Mr. Ravish Bansal, Advocate, since learned trial Court has recorded reasons, hence, finding of fact in his favour cannot be said to be perverse. 19. Section 103 of the Code of Civil Procedure reads as under:- “103. Power of High Court to determine issue of fact – In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the RSA No.1776 of 1982 -13- disposal of the appeal,-- (a) which has not been determined by the lower appellate Court or both by the Court of first instance and the lower appellate Court, or (b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100.” 20. From the perusal of Section 103 C.P.C., it can safely be said that this Court while hearing the second appeal can go into the question of fact when material is already available on the record. Even the Hon'ble Apex Court in the matter of Balmukund S. Bharuka (Dead) by Lrs v. Shankarlal G. Khandelwal (Dead) by Lrs reported in 2005(12) S.C.C. 131 has held that if High Court is of the opinion that finding of fact is perverse, then after recording question of law, High Court can deal with this question. 21. As observed earlier, neither mortgagor, alleged landlord, defendant Nos.7 to 11, nor mortgagee, father of the defendant No.3, entered into the witness box to support the claim of the defendant No.3. Hence, finding recorded by the learned first Appellate Court is based on no evidence. Alleged rent receipt filed by the defendant No.3, allegedly issued by the mortgagors i.e. defendants No.7 to 11, is not proved. Defendants No.7 to 11 could have been called in the witness box to prove the receipt, which was not done. Hence, in my humble opinion, first Appellate Court was wrong in holding that RSA No.1776 of 1982 -14- defendant No.3 was inducted as tenant by the defendants No.7 to 11, even prior to the mortgage. Even otherwise, first Appellate Court should have not disturbed the finding of fact recorded by the learned trial Court, even if, two views were possible. This is also one of the jurisdictional error committed by the first Appellate Court which can be corrected by this Court while exercising its jurisdiction under Section 100 reads with Section 103 C.P.C. Substantial question No.2 is answered accordingly. 22. In view of the above, judgment and decree passed by the first Appellate Court cannot be sustained in the eye of law. Second appeal is allowed. Impugned judgment and decree dated 2.6.1982 passed by the first Appellate Court is set aside. Judgment and decree dated 24.7.1980 passed by the learned trial Court is restored. Plaintiffs/appellants shall be entitled to cost of litigation as admissible under the law. ( ALOK SINGH ) JUDGE 23.2.2010 ashish