RSA No.2181 of 2008 (O & M) ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2181 of 2008 (O & M) Date of decision: 16.03.2010 Siri Ram .. Appellant Versus Asloop .. Respondent CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr.Manoj Kaushik, Advocate for the appellant Mr.Gautam Dutt, Advocate for the respondent . . . AJAY TEWARI, J. (ORAL) This appeal has been filed against the judgment of the learned Lower Appellate Court reversing that of the Trial Court and thereby decreeing the suit of the respondent for declaration that he is the owner of the land in dispute as a consequence of purchase and that the mutation entered in the favour of the appellant is illegal and binding on them as such purchase. The plea of the appellant was that in fact, the land was under mortgage and, since period of redemption of mortgage had lapsed, no title was left with the vendor which he could pass to the respondent. Further plea was taken that respondent being out of possession could not sue for declaration alone. The learned Trial Court decreed the suit while the learned Lower Appellate Court accepted the appeal. Learned Lower Appellate Court noticed two things i.e. firstly, that oral mortgage was not permissible in Haryana at the relevant time and further it disbelieved the RSA No.2181 of 2008 (O & M) ::2:: very plea of mortgage due to the reason that there was a fundamental incongruity in the case of the appellant. The appellant had urged that the oral mortgage was created when it was discovered that in fact the same land had been sold twice to them and it was on the discovery of this discrepancy that an oral mortgage was created. Learned Lower Appellate Court analyzed the evidence and found that the alleged oral mortgage was created in the year 1970 whereas the alleged discrepancy in the sale took place only in the year 1977. Thus, in fact also it was found that there was actually no oral mortgage at all. The following questions have been proposed:- (i) Whether the Jurisdiction of the Civi Courts has been barred in the matter of correction of register of Mutation by Section 158 of the Punjab Land Revenue Act, 1987 ? (ii) Whether the principle of res-judicata comes into play because the same dispute between the same parties has earlier been decided by a competent court/authority ? (iii) Whether the Respondent/Plaintiff has any locus- standi to file the present suit as he has not enforced his right of ownership through the Vendor Hansa. As the said Hansa was not having the title qua the land in question at the time when he made a Sale Deed in favour of the Respondent/ Plaintiff ? (iv) Whether the only right, if any, is available to the mortgagor Hansa is to file a suit for redemption of Mortgagee against the Appellant / Defendant ? (v) Whether the suit is bad for non-joinder of necessary party i.e. Hansa who has sold the land to RSA No.2181 of 2008 (O & M) ::3:: Respondent-Plaintiff at the time of the said Sale the Hansa was himself not having any title left qua the land in question because of the expiry of the limitation period to redeem the said mortgage ? As regards question No.(i), the learned Lower Appellate Court rightly upheld the view of the Court below that the present suit being a suit for title, it could not be barred by Section 158 of the Punjab Land Revenue Act, 1887. With regard to question No.(ii), it has to be noticed to only to be rejected. The limited question regarding the mutation cannot in my opinion, be held to be res judicata in a subsequent suit for title. Questions No.(iii), (iv) and (v) are related questions. Once, the oral mortgage in favour of the appellant is not accepted, these questions do not arise. As regards the fact of the oral mortgage, learned counsel has not been able to persuade me that the finding thereon recorded by the learned Lower Appellate Court is either based on no evidence or is base on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. Consequently holding all the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. March 16, 2010 (AJAY TEWARI) Sukhpreet JUDGE