R.S.A. No. 2390 of 2010 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 2390 of 2010 (O&M) Date of decision : 1.7.2010 ... Randhir Singh and others ................Appellants vs. Ram Kunwar and others .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Sandeep K. Sharma, Advocate for the appellants ... K.C. Puri, J. This is an appeal directed by the defendant-appellants against the judgment dated 22.3.2010 passed by Sh.S.S. Lamba, District Judge, Rohtak, vide which the appeal filed by the plaintiffs was partly accepted. Briefly stated, Ram Kunwar, Bani Singh and Raj Singh filed a suit for declaration to the effect that the mortgage deed and mutation No. 4539 are illegal, null and void and not binding upon the rights of the plaintiffs. The relief of permanent injunction was also sought. The case of the plaintiffs set forth in the plaint is that R.S.A. No. 2390 of 2010 -2- plaintiffs and their brother Surajbhan were the owners in possession of 1/4th share of the suit land and were also the co-sharer in the land comprised in Khewat No. 420, Khatoni No. 907-908, total measuring 45 Bighas 11 Biswas situated in village Nindana, Tehsil Meham, District Rohtak and were also co-sharers in in land measuring 26 Bighas 10 Biswas comprised in Khewat No. 422, Khatoni No. 909- 913 situated in village Nindana, Tehsil Meham, District Rohtak. Their real uncle Chhotu Ram had no children and as such he transferred his share in their names by way of decree dated 9.1.1973 and since then they are the owners in possession of the said share of Chhotu Ram. Mutation was also sanctioned in their names. After the death of said Chhotu Ram, Mange Ram, the father of defendants No. 1 to 5 had challenged the judgment and decree dated 9.1.1973 passed in civil suit titled as “Mange Ram vs. Surajbhan' and that suit was dismissed on 30.3.1978. Thereafter an appeal was accepted and the judgment dated 9.1.1973 was set aside vide judgment dated 2.12.1978. The Regular Second Appeal was preferred in the High Court and judgment and decree of the Appellate Court dated 2.12.1978 was set aside and the judgment of the trial Court dated 30.3.1978 was upheld vide judgment dated 19.2.1991. Thereafter,plaintiffs requested defendant No.6 to incorporate the judgment and decree of High court and that of trial Court and to rectify the revenue record illegally showing defendants No.1 to 5 as the owners, but of no use. Defendants No.1 to 5 by playing fraud and by misrepresentation mortgaged their land with defendant No.7 for a R.S.A. No. 2390 of 2010 -3- loan of Rs.4,80,000/-. The plaintiffs requested defendants No. 1 to 5 not to alienate the same but they were adamant. Defendant No.7 has also sanctioned the loan illegally. Now, the defendants are further threatening to alienate the property under suit. Notice of the suit was given to the defendants. Defendants No. 1 to 3 and 6 did not file the written statement and their defence was struck off. Defendants No. 4 and 5 were proceeded against ex parte. The suit was contested by defendant No.7 – bank only. Defendant No.7 – bank filed written statement and had raised preliminary objections that suit is not maintainable; plaintiffs have no cause of action to file the present suit; the suit is false and frivolous and the suit is time barred etc. On merits, the majority of facts were denied and it is denied that loan was sanctioned on the basis of misrepresentation and fraud. The loan was sanctioned after verifying the record and in a legal manner. On the basis of pleadings of the parties, following issues were framed:- 1. Whether the plaintiffs are in possession of the suit property? OPP. 2. Whether the mortgage deed and mutation No.4539 are liable to be set aside as alleged? OPP 3. If the above issues are proved in affirmative, whether the plaintiffs are entitled for relief of permanent injunction restraining the defendants from interfering in their possession over the suit property and from alienating the R.S.A. No. 2390 of 2010 -4- same in any manner? OPP. 4. Whether the suit is not maintainable? OPD 5. Relief. Plaintiffs examined Raj Singh s/o Surajbhan as PW and closed the evidence after tendering certain documents. No evidence was led by the defendants. Issues No. 1 and 3 were decided in favour of the plaintiffs. However, issue No.3 was decided partly in favour of the plaintiffs. Issue No.4 was decided against the defendants. In view of the findings, the learned trial Court partly decreed the suit of the plaintiffs for declaration to the effect that plaintiffs and other LRs of Surajbhan are the owners in possession of the suit land and mutation No. 4539 is liable to be set aside. However, it is held that mortgage deed is binding upon the land and indirectly upon the rights of the plaintiffs; however, the plaintiffs will have the right available to the bank against the borrowers in case the suit property is put under any liability for the outstanding amount of loan of defendants No. 1 to 5 and it is also held that defendant No.7 – bank is entitled to recover the outstanding amount under the loan account and under the mortgage deed Exhibit P-6 from defendants No. 1 to 5 i.e. borrowers in their individual capacity and in case the loan is not cleared by them, the bank was authorised to recover the amount from the sale of the land itself. However, the plaintiffs if want to save the land from being auctioned, if need be due to non-clearance of the outstanding amount, can clear the loan amount and in that eventuality or in the eventuality, R.S.A. No. 2390 of 2010 -5- if the loan is recovered by defendant No.7 from the suit property, then plaintiffs will step into the shoes of the bank and shall be entitled to recover the amount from the borrowers i.e. defendants No. 1 to 5. Feeling dissatisfied with the above said judgment, the plaintiffs preferred the First Appeal, which was decided by Sh. S.S. Lamba, District Judge, Rohtak vide judgment dated 22.3.2010. It was held that plaintiffs cannot be held liable for the loan taken by defendants No. 1 to 5 and in these circumstances, the mortgage deed would become ineffective, as far as the shares of the plaintiffs are concerned. However, the bank – defendant No.7 would be well within its rights to recover the amount not only personally from defendants No. 1 to 5 but also from their shares in the land in both the Khewats. Feeling dissatisfied, the present regular second appeal has been preferred by the appellants-defendants No. 1 to 3. I have heard counsel for the appellants and have also gone through the record of the case. The First Appellate Court has held that the mortgage deed has become ineffective against the rights of the plaintiffs. The suit of the plaintiffs was that they are not liable to pay the amount of loan raised by defendants No. 1 to 5 and that relief has also been granted by the First Appellate Court. The First Appellate Court has simply observed that the bank shall be entitled to recover the amount personally from defendants No. 1 to 5 and from the sale of their share in both the Khewats. So, no substantial question of law has arisen in the present regular second appeal. The bank is well within its right to R.S.A. No. 2390 of 2010 -6- recover the amount from the loanee i.e. defendants No. 1 to 5, from the sale of their other property and personally from them. In fact, the present appeal seems to have been filed to protect the rights of defendants No. 1 to 5. The requisite relief sought by the plaintiffs has already been granted by both the Courts below. In view of the above circumstances, the appeal is without any merit and the same stands dismissed. ( K.C. Puri ) 1.7.2010 Judge chugh