83 RegularSecond AppealNo541 of 1999 1m 1 INTHE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ReguIarSecond AppealNo541 of 1999 Dateof Orderl I7Vlarch 2010 Nirvair Singh eeAppeilant Versus t Surinder Kaur C espondent 0 CORAM HONBLE MRJUSTICE RAJIVE BHALLA C Present MrADJattana Advocate I for the appellant C5 Mr Rakesh Kumar Advocate with I M Naresh Prabhakar Advocate for the respondent Z RAJIVE BHALLA J The appellantchallengesthe judgmentand decree dated 22071 999 passedby the Additional District Judge Faridkot accepting I 08 the appealflled by the respondentsettingaside the judgmentand decree r passedby the Sub Judge Ist Class Moga and as a consequence 7 decreeingthe suit for redemption of the mongagedpropeny Z The filed a suit for possessionof a shopby 0m way of redemptionof a registeredmortgagedeed dated 281 980 wherebythe shopin disputewas mortgaged with the appellantfor a sum of Rs20001 for a periodof five years The filed a written statement denyingthe mortgageand instead asserted that the appellantIS a tenant and the allegedmortgage was executed as securityfor the rent of the shop On the basis of the pleadingsthe trial court framed the following issue 1 Whether the plaintiffis entitled to redeem the shop in dispute70PP 1A VVhether there exists a relationshipof Iandlord and KUMAR SURESH SHAM LAL 2012.05.31 10: 10 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 84 n44 Regular Second AppealNo541 of 1999 2e tenantbetween the parties20PD 2 VVhetherthe plaintiff is entitledto possessionof shopin dispute20PP 3 Whetherthe plaintiffhas no Iocus standi to file this suit70PD 4 Whether the presentsuit is Iiabie to be stayedunder m Section 1Oll 51 CPC2OPD 5 Relief 0 0 After consideringthe pleadingsthe evidence adduced and the I C addressed the trial coun dismissed the suit by holdingthat the I is a tenant and the mortgageis a sham transaction 4 Z executed so as to avoid the provisionsof the Rent RestrictionAct The trial e court also held that it did not appealto reason that a shopwould remalll 0 for a periodof 10 years on a meagre amount of Rs20001 Aggrievedby the aforementioned judgmentand decree the 08 OO respondentfiled an appea The first appellatecourt framed an additional issue which reads as follows m2 Z Whether defendant executed agreement dated 251985 regardingextension of time for redemption of rnortgageupto155 19907 If so its eHect2OPP A reportwas soughtfrom the trial court 00 this issue Vide order dated 111998 the trial coun decided issue noA in favour of the respondentby holdingthat the defendantopellanthad executed the agreementdated 201 985 extendingthe mongage Objections regardingthe reportwere invited vide order dated 181 998 but neither partyfiled any objectionsThe first appellatecourt acceptedthe appeal set aside the judgmentand decree passedby the trial court and decreed the suit for possessionThe first appellatecourt held that as the periodof KUMAR SURESH SHAM LAL 2012.05.31 10: 10 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 85 1 RegularSecond AppealNo 3541 of 1999 3 mortgagewas extendedfrom 1985to 1990 on 22 051985 the findingthat a shopcould not be mortgagedfor a meagre amount of Rs20001 for a period of 10 years is incorrect The first appellatecourt also held that the had failed to prove byany independent evidence the attributes of a tenancy the rate of rent the paymentof rent or any receiptexecuted in respectthereof The depositionof DW1 Darshan Singh Junior Field 1nvestigatorwas held to be irrelevant as were the depositionsof other r witnesses producedbythe appellant 0 C3 CounseI for the appellantsubmits that the first appellatecourts I judgmentIS perverseThe first appellatecourt failed to appraisethe C5 mortgage deed EOW31A It is unbelievabie that a mortgagewould be I executed for a periodof 10 years for a paltrysum of Rs20001 The first Z appellatecourt has wronglyignoredthe depositionof DW4 RajinderSingh C typistvvho is a witness to the mortgagedeed DVV31A His depositionthat I he was a witness to a Iease and not a mortgagehas been summarily 08 discarded by placingreliance upon a judgmentreportedas Smt Sudha 10 Devi v MNaranain and othersreportedas AlR 1988 SC1381t IS 3 Z arguedthat the allegationthat DW4 impersonated the real RajinderSingh remains unsubstantiatedas he was not cross examined on this point It is fu11hersubmitted that the respondentfiled an applicationunder Sections 195 and 340 of the Code of Criminal Procedure for prosecution of Rajinder Singhbut the application was dismissed with iibertyto file an independent applicationAs no furtherapplication was Oled the first appellatecoun had no jurisdiction to rejectthe depositionof RajinderSingh It is furtherargued that the entry in the municipalrecord that the appeilantis a tenantthe depositionof RajinderSingha witness of the mortgagedeed and the other attending circumstancesclearlyestablish that the allegedmongagedeed IS a sham transaction executed so as to avoid the provisionsof the Rent RestrictionAct It is arguedthat in view of the aforementionedfacts the KUMAR SURESH SHAM LAL 2012.05.31 10: 10 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 86 Regular Second AppealNo 3541 of 1999 e4v substantialquestionof Iaw arise for consideration 1 Whetherthe first appellatecourt has employedcorrect Iegalparameters for the construction of the document Exh DW31A as Iaid down by the Honble Supreme court in Puzikkal Kattappuversus Bhargavietc as 1997 C L87 Counsel for the respondenton the other hand submits that the 0 0 has failed to prove the attributesof a tenancy the terms and I conditions thereof the paymentof rent any receiptin respectthereof or C5 anyother circumstance that would suggest that the premiseswere Ieased out to the appellant It is arguedthat the intentionof the partieshas to be Z gathered from the document and no amount of oral evidence can be examined to rebut recitals in a written contract A perusalof the mongage I deed and the agreementto extend time for redemptiondiscloses an 08 unequivocal intentionto execute a mongagedeed The mere fact that the OO mortgage was extended for another periodof five years would not giverise V Z to an inference that it is a Iease deed It is further submitted that the depositionof RajinderSinghwas rightlyrejectedbythe first appeilatecoun as it is contraryto the written mortgagedeed 1 have heard counsel for the parties perusedthe impugned judgmentsand decrees and considered the questionsof Iaw framed by counsel for the appellant The only questionthat arises for adjudicationis whether the mortgagedeed was executed so as to evade the provisionsof the Rent Act The trial court has held that the mortgagedeed is a sham transaction executed so as to evade the provisions of the Rent Act The first appellate cour has on the other hand reversed this findingand held that the mortgagedeed is Iegaiand valid KUMAR SURESH SHAM LAL 2012.05.31 10: 10 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 87 9 RegularSecond AppealNo541 of 1999 S 0 Section 91 of the Indian Evidence Act prescribesthat when the terms of a contract have been reduced to the form of a document no evidence shall be givenin proofof the terms of such a contract exceptthe document itself Section 92 of the Indian Evidence Act postuiatesthat when the terms of any such contract have been proved accordingto Section 91 no evidence of any oral agreementor statement shaii be 1 admitted between the partiesto any such instrumentfor the purpose of 0 contradictingvaryingaddingto or subtracting from its term The first C provisoto Section 92 however prescribesthat any fact may be proved I C5 which would invalidate a document on the groundof fraud intimidation J I illegalitywant of due execution want of capacityin any contractingpany Z want or failureof consideration or mistakein fact or Iaw It is therefore evident that thoughoral evidence shall not be C2 adrnitted to cootradict vary add to or subtract from a writtencontract but I 08 where the allegationis that the contract is void or voidable evidence other r than the document itself may be admittedand considered for the purpose mwo of determining the true intent of partiesWhere a partyallegesthat a Z mortgage was executed to evade the provisions of the Rent Act a dutyis Qm cast upon the person makingsuch an allegationto prove this fact and upon a court to determine the prelominantintent of parties The nomenclatureof such a document is irrelevant Both the trial court and the first appellatecourt after considering the mol1gagedeed the evidence adduced by the paities have recorded diametricallyoppositeopinioos with the trial court holdingthat the mogage deed is a sham transaction as the appellantis a tenant and the first appellatecourt holdingthat Ex DW31A is a mongagedeed as the appellanthas faiied to prove his status as a tenant A due consideration of the pieadingsthe evidence on record the findingsrecorded bythe courts below and the argumentsaddressed by KUMAR SURESH SHAM LAL 2012.05.31 10: 10 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 71 S 88 RegularSecond AppealNo541 of 1999 S counsel for the partiesIeaves to manner of doubt that ExN31A the document in disputeis a deed The onus to establish that ExN31A was executed to evade the provisionsof Rent Act Iayupon the In order to establish the ingredients of a tenancythe appellant has RajinderSingh DW4 the attestingwitness of the mortgage deed This witness has deposedthat he signedthe mongagedeed as 1 Surinder Kaur respondentinformed him that it was a securityfor the tenancyHis deposition was acceptedbythe trial coun but rejectedbythe 0 0 first appellatecourt by holdingthat his oral statemen that no I C consideration passedat time of the execution of the allegedmongage I deed is contraryto the recital in the mortgagedeed about the passingof Z consideration at the time of the registration of the mortgagedeed duly endorsed by the subegistrar The first appellatecoun therefore rightly C rejected the depositionof RajinderSingh DW4 It appears that the I respondentfiled an applicationprayingthat as DW4 RajinderSinghisan 08 QO impostorhe should be prosecutedAn amdavit of the another Rajinder V Singhwas appendedwith this applicationThe Orstappellatecoun did not Z entertain this applicationbut grantedIibertyto prosecuteRajinderSingh under Section 195 and Section 340 of the Cr As to whether Rajinder Singhhas been prosecutedfor deposingfalselyis a matter that has not been adverted to by counsel for the panies However this fact would make no difference to the final outecomeof the appealas the depositionof RajinderSingh is contraryto the recital in the mongagedeed and the endorsement by the As referred to hereinabove the moitgagedeed ExDW31A contains a positiverecital of paymentof Rs20001 as the mortgageamount The mortgagedeed was registered on 2851980 and contains an endorsement on the reverse of the first page duly signed by the appellantand the respondentevidencing paymentand receiptof Rs20001 As regardsthe depositionof witnesses KUMAR SURESH SHAM LAL 2012.05.31 10: 10 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document 96 89 J 77 RegularSecond AppealNo541 of 1999 7e produced by the appeiiantand the depositionof the appellantwith respect to the rate of rent the annual increase of rent and paymentthereof sumce IS to state that these statements are bythemselves insufOcientfo rebut the recitals in the mortgagedeed or raise an infefence that the mortgagedeed is a sham transactior lt would also be necessary to mentionhere that the moilgagewas extended fora periodofOve yearsthusnegatingthe very 1 basis of the pleaset up by the appellant The questionof Iaw framed by r counsel for the appellantis therefore answered by holdingthat the first 0 0 appellatecourt has not committed any error while the C5 documentExW31A as a mortgagedeed I In view of what has been stated hereinabove the appealIS dismissed with no order as to costs Z r C March lRAJIVEBHALLAI I nt JUDGE 08 r 7 Z Il 4 V 17 1 4 lv r KUMAR SURESH SHAM LAL 2012.05.31 10: 10 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:01 I attest to the accuracy and integrity of this document