RSA No.1276 of 1989 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 1276 of 1989 Date of decision: April 21, 2011 Som Nath and others ......Appellants Versus Raj Kishan and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.C.B.Goel,Advocate for the appellant. None for the respondent. **** SABINA, J. Plaintiff-Raj Kishan had filed a suit for declaration with consequential relief of permanent injunction. The case of the plaintiff, in brief, was that defendant No.4 was owner of the land in dispute. In a family settlement, the land in dispute was given by defendant No.4 to the plaintiff. Defendant No.4 suffered a decree dated 10.8.1978 in Civil Suit No. 483 of 1978 in favour of the plaintiff. Hence, the mortgage deed dated 12.6.1981 executed by defendant No.4 in favour of defendants No. 1 to 3 qua land in dispute was not binding on the rights of the plaintiff. Defendants No. 1 to 3, in their written statement, denied the contentions in the plaint. It was averred that defendant No.4 was owner in possession of the suit land. The mortgage deed executed RSA No.1276 of 1989 2 by defendant No. 4 in favour of defendants No. 1 to 3 was legal and valid. On the pleadings of the parties, following issues were framed by the trial Court:- “1.Whether the plaintiff is owner in possession of the suit land mentioned in para No.3 of the plaint?OPP 2.Whether mortgage deed dated 12.6.1981 is not binding upon the plaintiff?OPP 3.Whether the mutation no. 593 sanctioned on the basis of mortgage deed dated 12.6.81 is not binding upon the plaintiff?OPP 4.Whether the suit is not maintainable in the present form?OPD 5.Whether the plaintiff has no locus-standi to file and maintain the present suit?OPD 6.Whether the plaintiff is estopped by his own act and conduct from filing the present suit?OPD 7.Whether the suit is not properly valued for the purposes of court fee and jurisdiction?OPD 8. Whether the suit is bad for non-joinder and mis-joinder of parties?OPD 9.Relief” The trial Court vide judgment and decree dated 14.10.1987 decreed the suit of the plaintiff and held that the mortgage deed dated 12.6.1981 and mutation sanctioned on the basis of the same were not binding on the rights of the plaintiff. Defendants were restrained from interfering in the peaceful possession of the plaintiff qua the suit RSA No.1276 of 1989 3 land. In appeal filed by the defendants, the said judgment and decree were upheld by the Additional District Judge vide judgment dated 24.2.1989. Hence, the present appeal by the defendants. After hearing the learned counsel for the appellant, I am of the opinion that the present appeal deserves to be allowed. The substantial questions of law that arise in this appeal are as follows:- (1)Whether the mortgage deed executed in favour of the appellants by Atma Ram was legal and valid and was binding on the rights of the plaintiff?. (2) Whether the Courts below have failed to appreciate the evidence on record in its correct perspective?. In the present case, the plaintiff is the son of defendant No.4. Plaintiff had placed reliance on decree dated 10.8.1978 suffered by defendant no.4 in his favour qua the suit land. Defendants No. 1 to 3, in their written statement, took up the plea that the decree relied upon by the plaintiff was under challenge and the suit filed by defendant No.4 challenging the decree dated 10.8.1978 passed in the Civil Suit No.483 of 1978 was pending. During the course of arguments, learned counsel for the appellants has submitted that the suit filed by defendant No.4 challenging the decree dated 10.8.1978 against the plaintiff had been decreed by the trial Court vide judgment and decree dated 19.10.1988 and it was held that the decree dated 10.8.1978 was null and void and was a result of fraud and misrepresentation. The decree dated 10.8.1978 was not incorporated in the RSA No.1276 of 1989 4 revenue record. Defendant No. 4 was depicted to be owner in possession of the suit property at the time of the execution of the mortgage deed by defendant No.4 in favour of the appellants. The mortgage deed was executed on 12.6.1981, whereas, the mutation was sanctioned on the basis of the impugned decree in the year 1982. The mortgage deed in favour of the appellants is a registered document. At the time of the execution of the mortgage deed, the appellants had no knowledge about the decree set up by the plaintiff. Moreover, the said decree had been set aside in a suit filed by defendant No. 4 . In these circumstances, the suit filed by the plaintiff was liable to be dismissed. The mortgage deed executed by defendant No.4 was legal and valid and was binding on the plaintiff. The Courts below had failed to appreciate the evidence on record in its correct perspective. The substantial questions of law that arise in this appeal stand answered accordingly. Hence, this appeal is allowed. The impugned judgments and decrees passed by the Courts below are set aside. Consequently, the suit filed by the plaintiff is dismissed. ( SABINA ) JUDGE April 21, 2011 arya