Regular Second Appeal No.3109 of 2008 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3109 of 2008 Date of Decision: August 10, 2009 Puran Singh ...........Appellant Versus Jodha and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Vivek K.Thakur Advocate for the Appellant. ** Sabina, J. Plaintiff-Puran Singh filed a suit for declaration to the effect that the plaintiff being mortgagee has become owner of the land bearing Khewat No.127, Khatauni No.168. Khasra No.52, measuring 32 kanals 5 marlas vide jamabandi for the year 1991-92 situated in the Revenue estate of village Naloh Teeka Niari Tehsil Pathankot, District Gurdaspur by afflux of time as the same has not been got redeemed within 30 years. . The suit of the plaintiff was decreed by the Civil Judge (Junior Division) Pathankot vide judgment and decree dated 14.2.2000. Aggrieved by the same, the defendants preferred an appeal and the same was partly accepted by the Additional District Judge (Adhoc) Fast Track Court, Gurdaspur vide judgment and decree dated 25.5.2007. Hence, the present appeal. The facts of the case, as noticed by the Additional District Judge in paras 2 to 4 of its judgment, read as under:- “ 2. The brief facts of the case put up by the plaintiff/respondent before the ld.lower Court are that originally one Nikku s/o Mehru was owner of the property who mortgaged the same in favour of Regular Second Appeal No.3109 of 2008 2 Mehru s/o Faggu father of the plaintiff/respondent in the year 1940 and delivered the possession. The father of the plaintiff/respondent remained in possession till his death i.e. till 1970-71 and thereafter, the plaintiff/respondent is in possession of the suit property as mortgagee. Nikku s/o Mehru, the original mortgagor died in the year 1970-71 but during his life time, he sold the property to appellants/defendants No. 1 to 3 and one Khankar now represented by defendant/respondents No. 5 to 8. It was alleged that defendants/appellants after purchase of the property stepped into the shoes of Nikku s/o Mehru and became mortgagors. It is alleged that the property has not been got redeemed either Nikku s/o Mehru during his life time or the appellants/defendants and after the purchase and more than 30 years have elapsed, the plaintiff/respondent has become owner of the same by way of afflux of time. 3. It was alleged that as per jamabandi for the year 1957-58, the suit land alongwith some other land was jointly owned by Nikkur and Santa to the extent of half share, bearing khasra No. 44,91,93,97,99,155 and 156, after the consolidation in lieu of old khasra numbers, new khasra No.52 has fallen in the share of Nikku, which is the suit property. When defendants/appellants refused to admit the claim of the plaintiff/respondent, he filed the suit of declaration for ownership as well as injunction. 4. Upon notice all the defendants/appellants filed their joint written statement by taking the preliminary objections that the plaintiff/respondent has no locus standi to file the present suit, Regular Second Appeal No.3109 of 2008 3 that suit is not maintainable and he is estopped by his own act and conduct from filing the suit. On merits, it was denied Nikku s/o Mehru was owner of the property or he mortgaged the same in favour of Mehru before 1940 with possession. It was denied that after the death of Mehru, plaintiff/respondent has become the owner of the property and came in possession. It was alleged that the defendants/appellants are owner in possession of the suit property on the basis of sale deed and have also become owners by way of adverse possession as their possession is open, hostile, continuous, uninterrupted and prayed for dismissal of the suit. On the pleadings of the parties, the following issues were framed:- “1. Whether the suit land has been mortgaged by the original owner Nikku s/o Bishna in favour of father of the plaintiff ?OPP 2.Whether he has become owner of the suit land?OPP 3.Whether the plaintiff is entitled to declaration prayed for ?OPP 4.Whether the plaintiff is entitled to injunction as prayed for?OPP 5. Whether the defendants are bonafide purchaser without having any knowledge about existing encumbrancers of the suit land?OPD 6. Whether the plaintiff has no locus standi to file the present suit ?OPD 7. Whether the suit is not maintainable in the present form?OPD 8. Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD. 9. Relief. Regular Second Appeal No.3109 of 2008 4 The following additional issue No.9-A was framed on 18.1.2000:- 9-A Whether the defendants have acquired title by way of adverse possession?OPD” After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves to be dismissed. Plaintiff had claimed that he had become owner of the suit property on the basis of afflux of time. The suit property was mortgaged with Mehru, father of the plaintiff by Nikku who was owner of the property. Since the property had not been got redeemed within 30 years and hence, the plaintiff had become owner of the suit property. However, the original mortgage deed has not been placed on record, although the plaintiff, while appearing in the witness box as PW5 in his cross examination, had categorically stated that he was in possession of the mortgage deed as it was handed over to him after the death of his father. However, the said mortgage deed was not placed on record by the plaintiff and, hence, the learned Additional District Judge had rightly observed that an adverse inference was liable to be drawn against the plaintiff as material document had not been placed on record. In the absence of original mortgage deed, the intention of the parties at the time of execution of the mortgage deed could not be determined . Hence, learned appellate Court had rightly held that the plaintiff has failed to prove that he has become owner of the suit property. No substantial question of law arises in this case which Regular Second Appeal No.3109 of 2008 5 would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 10,2009 arya