RSA No.4108 of 2010 (O & M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4108 of 2010 (O & M) Date of Decision: 23.03.2011 Brij Lal and another ……Appellants Versus Gian Parkash Sood …...Respondent Coram: HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Akshay Bhan, Advocate with Mr. Santosh Sharma, Advocate for the appellants. L.N. MITTAL, J (ORAL) CM No.12346-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 5 days in re-filing the appeal is condoned. CM No.12347-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 5 days in filing the appeal is condoned. Main appeal Defendants having failed in both the Courts below are in second appeal. Defendant-appellant No.1 Brij Lal is sole proprietor of defendant-appellant No.2-M/s Brij Lal Tilak Raj. Suit was filed by RSA No.4108 of 2010 (O & M) - 2 - respondent-plaintiff Gian Parkash Sood against the appellants for possession of disputed shop by redemption of mortgage thereof. The plaintiff alleged that he mortgaged the disputed shop with defendants for Rs.5000/- vide registered mortgage deed dated 11.08.1978 to be redeemed after five years. The mortgage was with possession. However, on demand, the defendants refused to redeem the mortgage, necessitating the filing of the suit. Ancillary relief of permanent injunction was also claimed. Defendants broadly denied the plaint allegations. It was pleaded that defendants are tenants in the disputed shop alongwith other property since prior to the year 1972. It was alleged that the plaintiff succeeded in getting the mortgage deed dated 11.08.1978 executed to overcome the provisions of the Rent Restriction Act. Various other pleas were also raised. Learned Civil Judge (Senior Division), Moga vide judgment and decree dated 17.07.2009 decreed the plaintiffs’ suit. First appeal preferred by defendants has been dismissed by learned Additional District Judge, Moga vide judgment and decree dated 20.01.2010. Feeling aggrieved, defendants have filed the instant second appeal. I have heard learned counsel for the appellants and perused the case file. RSA No.4108 of 2010 (O & M) - 3 - Plaintiff examined scribe of the mortgage deed and also one attesting witness of the mortgage deed to prove its due execution. In fact even the defendants in the written statement have admitted the execution of the impugned mortgage deed. Even in the witness box, defendant No.1 admitted his signatures on the mortgage deed, but stated about threat and undue influence which is not proved. The defendants, pleaded that the mortgage deed was somehow procured by the plaintiff. The defendants implied to plead that the mortgage deed was obtained under threat and coercion. However, defendants have miserably failed to prove the said version. The mortgage deed is registered one and mortgage money was also paid at the time of registration of the mortgage deed in the presence of Sub-Registrar. It also reasonably rules out threat or coercion. Defendant No.1 himself also admitted that he was not under any threat or pressure when the mortgage deed was executed. He admitted that he executed the mortgage deed without coercion. Moreover, the mortgage deed is dated 11.08.1978 whereas the suit was filed on 14.03.2001 i.e more than 22 years after the execution of the mortgage deed. However, during this long intervening period, the defendants never challenged the mortgage deed in any manner. If the mortgage deed had been obtained under threat or coercion or if the mortgage had been a sham transaction to avoid the provisions of the Rent Act, the defendants would have challenged it soon after it was executed. RSA No.4108 of 2010 (O & M) - 4 - Apart from the above, it is significant to notice that defendants’ claim is that they were tenants in the disputed shop and other property since prior to the year 1972. Consequently, in the year 1978, when the mortgage deed was executed, defendants had no compulsion to execute the mortgage deed. At the time of creation of tenancy, landlord may exercise undue influence to get mortgage deed executed to camouflage the tenancy as mortgage because at that time, the tenant is in need of the premises. However, more than six years after the creation of the tenancy, the defendants as tenants could have no expulsion to execute the mortgage deed. The defendants’ version in this regard is thus completely unacceptable. It would also not be out of place to notice that defendants in fact had taken another shop and a room on rent from the plaintiff vide two separate rent notes. It would also depict that disputed shop was never let out to the defendants and was only mortgaged with them. In this context, the plaintiff has led evidence to depict that the disputed shop was earlier under tenancy of Bansi Lal/Mansa Ram till April 1978. Consequently, the disputed shop being under tenancy of Bansi Lal/Mansa Ram till the year 1978, could not be under tenancy of defendants since prior to the year 1978. On the contrary, after getting the disputed shop vacated from previous tenant Bansi Lal/Mansa Ram in April, 1978, the plaintiff mortgaged it with the defendants in August, 1978. Defendants have also not produced any rent note or rent receipt to depict their tenancy in the disputed shop, although they claimed RSA No.4108 of 2010 (O & M) - 5 - that they had been paying rent to the plaintiff. Defendant No.1 stated that rent receipts might be at his house. Non production of any such rent receipt, despite rent receipts being in possession of defendants, gives rise to strong adverse presumption against the defendants. There is concurrent finding by both the Courts below in favour of plaintiff-respondent. The said finding is fully justified by the evidence on record and is supported by reasons recorded by the lower Courts. Defendants have miserably failed to prove that the mortgage deed was result of threat or coercion or was a sham transaction or that it was obtained to avoid provisions of the Rent Act. Plaintiff has fully proved his case regarding creation of mortgage. Finding recorded by the Courts below is not shown to be perverse or illegal nor it is based on misreading or misappreciation of evidence. Consequently, the said finding does not warrant interference in exercise of second appellate jurisdiction. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. The appeal is completely meritless and is accordingly dismissed in limine. (L. N. MITTAL) 23.03.2011 JUDGE A.kaundal