RSA No.487 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** RSA No.487 of 2010 (O&M) DATE OF DECISION: 04.02.2010 **** Smt. Motia Rani and others . . . . Appellants VS. Smt. Usha Goel and others . . . . Respondents **** CORAM : HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: Mr.Vikram Singh, Advocate for the appellant. **** RAKESH KUMAR JAIN J. The defendants are in second appeal in a suit for possession by way of redemption of a shop situated in Khasra No.219 bounded as : North : Road of 10 ft. wide; South : Remaining land of the plaintiffs 10ft. wide East : Shop of Baldev Singh 31’-6” West : 31’-6” wide shop of Brij Lal Situated in Khasra No.219 Min-North measuring 806/1021 and Khatauni No.1022, Khasra No.219 Min measuring 14 Marlas total 1 Kanal 8 Marlas, situated at Shahzadpur, Tehsil Naraingarh and payment of Rs.45,000/- as mortgaged money. RSA No.487 of 2010 (O&M) -2- The trial Court decreed the suit and passed the following decree: - “It is ordered that the plaintiff is entitled to redemption of suit property on payment of the mortgage amount of Rs.45,000/- (Rs.Forty Five thousand), it is ordered that a preliminary decree is passed in favour of the plaintiff under order 34 Rule 7 CPC and in the same it is declared that the amount due towards the defendant (mortgagee) to be paid by the plaintiff (mortgagor) is Rs.45,000/- (Rs.Forty Five thousand only). No interest has been postulated in mortgage deed Ex.D1. The counsel for the plaintiff has given a statement of even date that he shall deposit the due amount as declared by the Court within 10 days of the preliminary decree. In view of this statement it is ordered that the plaintiff should deposit the amount of Rs.45,000/- (Rs.Forty Five Thousand only) in court by 13.02.2009.” The First Appellate Court dismissed the appeal and upheld the judgment and decree of the Trial Court vide its judgment and decree dated 19.12.2009. In brief, the pleaded case of the plaintiff is that shop in question was mortgaged by him to one Ram Parkash for a sum of Rs.45000/- against a registered mortgage deed dated 5.4.1999. After the death of Ram Parkash, his Legal Heirs were asked to accept the mortgage money and redeem the mortgaged shop but they refused, resultantly suit was filed. In reply, the defendants took a stand that the property was not mortgaged but they were in possession as a tenant and the mortgage deed was executed only with an intention to bye-pass the tenancy laws. Learned Courts below decided the case on the question as to whether the shop in question was mortgaged or RSA No.487 of 2010 (O&M) -3- not? From the evidence available on record, oral as well as documentary, both the Courts below came to a concurrent finding of fact that the document of mortgage was executed because earlier shop in question was mortgaged with one Santosh Kumar for a sum of Rs.25000/- from whom the shop was redeemed and was mortgaged to Ram Parkash (predecessor in case of the appellants) for a sum of Rs.45000/-. It was also found that there was no intention to bye-pass the tenancy laws on the part of the plaintiffs at the time of execution of mortgaged deed (Ex.P-1) because as per the certificate Ex.P3 issued by the BDPO, Gram Panchayat is functioning in village Shahzadpur. Therefore, there was no intention on the part of the plaintiffs to bye- pass the tenancy law as there is no Municipal Corporation and the property was not Urban. Moreover, though, the second appeal has been preferred by the defendants but no question much less substantial has been framed or raised during the course of hearing. Learned counsel for the appellants has miserably failed to point out any error in the appreciation of evidence or any violation of law in order to cover this case within the definition of Section 100 of the Code of Civil Procedure, 1908. Thus, I find the present appeal to be totally without any merit and the same is hereby dismissed though without any order as to costs. (RAKESH KUMAR JAIN) February 04, 2010 JUDGE vivek