RSA No. 626 of 2011 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 626 of 2011 (O&M) Date of decision: 04.02.2011 Gurdas Singh .....Appellant Versus Kamlesh Rani .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.I.S.Brar, Advocate, for the appellant **** SABINA, J. Plaintiff had filed a suit for possession of one room marked `ABCD' as shown in red colour in the site plan attached with the plaint alleging that he was owner in possession of the house except the room in question. On 17.11.1992, he had executed a mortgage agreement in favour of defendant. Room in dispute was mortgaged with the defendant. Possession of the room was also delivered to the defendant. The mortgage deed was to be executed on or before 16.11.1997 for a consideration of ` 4000/-. Defendant had, however, failed to execute the mortgage deed. Hence, the suit was filed by the RSA No. 626 of 2011 (O&M) 2 plaintiff. Defendant in her written statement alleged that a civil suit titled `Kamlesh Rani vs.Gurbax Singh' had been filed seeking permanent injunction restraining the defendant from interfering in the peaceful possession of the defendant over the property in dispute. Kamlesh Rani had been held to be in possession of the house vide order dated 23.7.2004. Dhan Kaur, mother of the plaintiff and mother-in-law of Kamlesh Rani was owner in possession of the house in dispute. Plaintiff is in possession of 1/3rd share of the house. Execution of the mortgage agreement was denied. It was averred that the said agreement was a forged and fabricated document. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff executed an agreement to mortgage dated 17.11.1992 for the consideration of Rs.4000/- i favour of the defendant?OPP 2.Whether the plaintiff is entitled for possession as prayed for in lieu of the agreement to mortgage?OPP 3.Whether the plaintiff has always been ready and willing to perform his part of the contract?OPP 4.Relief” Vide judgment and decree dated 26.5.2009, the trial Court decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendant preferred an appeal and the same was allowed by the Additional District Judge, Faridkot vide judgment and decree dated 1.11.2010. Consequently, the suit of the plaintiff was dismissed. RSA No. 626 of 2011 (O&M) 3 Hence, the present appeal by the plaintiff. After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves dismissal. Admittedly, the room in question is part of house bearing Municipal No.B-XI-7. Plaintiff, defendant and Gurbax Singh, had 1/3rd share in the house owned by Dhan Kaur. Dhan Kaur had not executed any Will in favour of the plaintiff or her other son Gurbax Singh or the defendant. Defendant had filed the suit for permanent injunction against Gurbax Singh alleging that Gurbax Singh wanted to grab the room in dispute although she was in possession of the same. The said suit was decreed and Gurbax Singh was restrained from interfering in the peaceful possession of Kamlesh Rani and Karamjit Kaur. It was also alleged in the said suit that Gurdas Singh has got prepared the agreement to mortgage the room in question. The fact that Kamlesh Rani had stated in the earlier litigation that Gurdas Singh had got prepared an agreement to mortgage qua room in question in connivance with Gurbax Singh would not lead to an inference that Kamlesh Rani had admitted the execution of the agreement to mortgage in favour of the present plaintiff. In these circumstances, the learned Additional District Judge rightly held that the plaintiff had failed to prove the due execution of the agreement to mortgage, allegedly, executed by Kamlesh Rani in his favour. Plaintiff had admitted, during cross-examination that defendant has five daughters and all of them are unmarried. In these circumstances, the learned Additional District Judge rightly drew an inference that the plaintiff had taken advantage of helplessness of his widowed sister-in-law who was having five young daughters and no RSA No. 626 of 2011 (O&M) 4 male issue. No substantial question of law arises in this case. Dismissed. ( Sabina ) Judge February 04,2011 arya