RSA No. 1840 of 2010 1 In the High Court for the States of Punjab and Haryana at Chandigarh … RSA No. 1840 of 2010 Date of decision: July 20,2010 Makhan Singh and others. ..Appellants. Versus Raja Ram and another . .Respondent Coram: Hon'ble Mr. Justice Rakesh Kumar Garg Present: Mr. Ashok Singla, Advocate for the appellants. .. Rakesh Kumar Garg,J(Oral) This is defendant's second appeal challenging the judgment and decree of the lower Appellate Court whereby the appeal filed by the plaintiff- respondent has been accepted and his suit for permanent injunction restraining the appellant from interfering into his possession over the suit land illegally, forcibly and except in due course of law has been decreed. As per the averments made in the suit, the plaintiffs were the mortgagees in the suit land, whereas the appellants are alleging themselves to be the co-owners of the suit land being vendees from the alleged mortgagors. It was the further case of the plaintiff-respondents that they were in possession of the suit land and they have never vacated their possession. On the other hand, the appellants have taken a stand that they were in cultivating possession of the suit land being vendees. After hearing learned counsel for the parties and considering the evidence on record, the trial court vide judgment and decree dated 16.1.2009 held that since the plaintiff-respondents were not found to be in possession, they RSA No. 1840 of 2010 2 were not entitled to the decree of permanent injunction. However, on appeal, the lower appellate Court on re-appraisal of evidence, found that land in dispute, while accepting the appeal, when it was purchased by the appellants, was under mortgage, and therefore, they can come into possession only by an act of redemption and till then, the mortgagees/respondents were deemed to be in possession of the suit land and they can be dispossessed only in due course of law. The relevant observation of the lower Appellate Court reads as follows:- “The case of appellants is that they being mortgagees are in cultivating possession of the suit land. No doubt, the plaintiffs have not placed on record the mortgage deed, vide which the suit property is said to have been mortgaged, but on the other hand, acceptable evidence is found to be available on record regarding the mortgage. Simply because the mortgage deed is not produced shall not dis-entitle the plaintiffs from claiming mortgage of the suit property in their favour. It is settled principle of law that jamabandi is the record of rights and presumption of truth is attached to the entries contained in jamabandi. Perusal of Jamabandi Ex.P2, clearly reveals that plaintiffs are recorded to be in possession by virtue of mortgager as there is entry contained underneath the names of plaintiff ' murtheen' (mortgagee). Moreover, in the khasra girdawari also the plaintiffs are shown to be in possession. Similarly perusal of sale deed Ex.D1 executed in favour of defendants by the previous owner reveals that there is a recital in the sale deed regarding mortgage of the suit land. This recital in the sale deed is an admission on the part of the vendors of the defendants regarding the land being under mortgage. Admission according to law is the best possible evidence against the party making such admission. DW4 Kewal Krishan Deed Writer of the sale deed Ex.D1 also during his cross examination stated that at the time of RSA No. 1840 of 2010 3 scribing Ex.D1, the land in dispute was mortgaged under possession. On joint reading of these two documents Ex. P2 and Ex.D1, the irresistible conclusion is drawn that the land was under mortgage, when it was purchased by the answering respondents. Therefore, they could come into possession only by an act of redemption and till then the mortgagees shall be deemed to be in possession of the mortgage land. Therefore, the trial Court was wrong in holding that the plaintiffs failed to prove that they are in possession of the suit property. I therefore, have no other option but to set aside the findings of the learned trial Court upon issue No.1 and hold that plaintiffs are able to prove their lawful possession over the suit property. The plaintiffs/appellants cannot be dispossessed except in due course of law. Issue No.1 is therefore, decided accordingly in favor of plaintiffs/appellants. Issue No.2 is regarding maintainability of the suit. The plaintiffs/appellants instituted the present suit for permanent injunction restraining the defendants/respondents from interfering into peaceful possession. While deciding issue No.1, it has already been held that plaintiffs/appellants are entitled to permanent injunction. Therefore, the suit cannot be said to be not maintainable as contended by the defendants. As such, issue No.2 is decided against the respondents/defendants. Issue No.4, is to the effect that whether plaintiffs are estopped by their act and conduct from filing the present suit. The onus to prove issue No.4 was on the respondents. No evidence has been adduced on this issue by the defendants/respondents. Hence, this issue is decided against the defendants/respondents. Issue No.3 is regarding cause of action and issue No.5 is regarding locus standi. In view of my discussion on issue No.1, both these issues are decided against the respondents/defendants. In view of above discussion, upon issue RSA No. 1840 of 2010 4 No.1, the findings of the learned trial court upon issue No.2 to 5 are also hereby set aside. Therefore, all the issues are decided in favour of plaintiffs/appellants and against the defendants/respondents.” Feeling aggrieved from the aforesaid judgment, the defendants are in the instant appeal. I have heard learned counsel for the appellants. The lower Appellate Court on re-appraisal of evidence has recorded a finding that the plaintiff-respondents are in possession of the suit land. The question of possession is a question of fact. The lower Appellate Court has based its findings upon Ex.P2 and Ex. D1. From the joint reading of Ex. P-2 and Ex. D1, the irresistible conclusion is drawn that the land was under mortgage, when it was purchased by the answering respondents. Therefore, they could come into possession only by an act of redemption and till then the mortgagees shall be deemed to be in possession of the mortgage land. There is no evidence on record to controvert the aforesaid facts established on record , i.e., revealing the fact of mortgage of the suit land in the sale deed executed in favour of appellants by their vendor . Findings of the lower Appellate Court on the basis of these two documents cannot be held to be perverse. Thus, there is no error in the finding of fact recorded by the lower Appellate Court. In view of the aforesaid,I find no merit in the appeal. No substantial question of law arises. Dismissed. July 20,2010 (RAKESH KUMAR GARG) nk JUDGE